The Issue The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit that is being modified was issued as conceptual approval on January 19, 1978. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes. The Application On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes 193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained, the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010. The Project and the Site The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side). A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District. The Surface Water Management System In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or detain stormwater runoff in order to provide treatment and attenuation of the stormwater. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands; and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application. Water Quantity Criteria Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i). Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules. Water Quality Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met. Hazardous Waste Management Plan Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system. Elimination and Reduction Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when: the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands. Secondary Impacts Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule. Mitigation If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b). Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60. Species Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank. Public Interest Test In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest. Florida Coastal Management Program Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary. Other Criteria Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project. Petitioners' Evidence Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.
The Issue Whether Petitioner Ross has standing to challenge the issuance of the WUP? Whether the District should approve the Application and enter a final order that issues the WUP?
Findings Of Fact The Parties Petitioner Ross Petitioner Ross is a resident of Pinellas County, (referred to by him at hearing as "the most urbanized county in the State of Florida"). Besides residing there, Petitioner Ross operates a farm on his property in the County. The City's experts reasonably projected and mapped a 0.5 foot drawdown contour surrounding the well field that is the subject of this proceeding. The contour defines "the cone of depression" associated with the well field. See Tr. 136. Mr. Ross' property is outside the cone of depression, to its south and west. The overall groundwater gradient in the area of the well field is from the east to the west. The water pumped from the well field does not pull water from the west because the pumping withdrawal will not reduce the potentiometric surface gradient enough to reverse the current gradient. Mr. Ross' property and the well on his property are "way outside," tr. 138, the well field and the 0.5 drawdown contour surrounding the well field. Based on the amount of drawdown reasonably projected by the well field, the effect on Mr. Ross' property could not be measured because it would be so slight. If the water in his well were to rise after the WUP is implemented, it would be impossible to tell whether the water rose "because the pump's turned off or because it rained the day before." Tr. 163. The District The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. The District administers and enforces chapter 373, and the rules promulgated pursuant thereto. Among those rules are those that relate to the consumptive use of water found in chapter 40D-2. The City The City of Tarpon Springs is the applicant for the WUP that is the subject of this proceeding. The City's application seeks to modify an existing permit. The Existing Permit The City has an existing Water Use Permit (the "Existing Permit") from the District. Originally granted in 1976, it allows for withdrawal of fresh groundwater for public supply. The Existing Permit was last renewed in October of 2005 for a ten-year period. It expires in October of 2015. Under the Existing Permit, the withdrawal capacity is 1.38 million gallons per day annual average and allows for seven production wells. The Application and its Modification The City submitted the Application in July, 2008. The Application at that time was for 25 wells in a brackish water well field for a proposed brackish groundwater reverse osmosis plant that the City plans to build. The City's intent originally was to apply for a permit separate from the Existing Permit.1/ In September of 2009, however, the City requested that the Application be considered a modification of the Existing Permit. In honoring the request, the District changed the number assigned to the Application to "20000742.010."2/ The Application was also modified with regard to the number of production wells in the brackish well field. The number was reduced from 25 to 22, "due to land acquisition efforts indicating that the maximum number of wells . . . required for the project would be 22." Tr. 54. The Application contains an introduction that summarized the City's water supply system and its water supply plans, a completed Individual Water Use Permit Application form, a completed Public Supply Supplemental form, and an Impact Analysis Report (the "Report"). The Report states that the ground-water flow model "MODFLOW"3/ was used to perform the impact analysis. Assessment of average annual and peak month withdrawal impacts in the Upper Floridan and surficial aquifers used the SWFWMD District Wide Regulation Model Version 2 ("DWRM2"). One of the enhancements the DWRM2 offers over earlier model versions is "integrated focused telescopic mesh refinement (FTMR) which allows the model grid user to refine the model grid spacing to focus on specific areas within the District."4/ The Report included the FTMR model grid, total drawdown scenarios in the Upper Floridan Aquifer and the surficial aquifer, and a peak month drawdown scenario. The Application also included a summary of the regional hydro-geology, a summary of the City's wastewater system, a description of the City's potable water supply, an historical operating protocol and a proposed well field management plan for the City's new brackish water well field, a service area and well field location aerial, a table showing the general hydrostratigraphy in northern Pinellas County, a summary of seasonal fluctuations which addressed the conditions for issuance of a permit as set forth in rule 40D-2.381, a summary of the City's reclaimed water system, well location maps, wetland maps, Water Use Permit maps and schedules, the City's well field protection ordinance, maps pertaining to the proposed service areas, a water conservation letter, and water conservation information. The 22 new production wells in the brackish water well field will provide enough water once treated at the proposed reverse osmosis membrane treatment plant to enable the City to supply the anticipated potable water demand for all of the City's customers through the year 2015. Installation of the additional production wells will increase the annual average quantity of groundwater pumpage to 4,200,000 gallons per day ("gpd") and the peak month quantity to 6,300,000 gpd. Review of the Application by the District led to four requests by the District for additional information. The City responded to each. The responses included a well construction and aquifer testing program report, a Water Quality/Water Level Well Impact Mitigation Plan, a Water Quality Action Plan, a revised Water Quality/Water Level Well Impact Mitigation Plan, a revised Water Quality Action Plan and a second revision of the Water Quality Action Plan, a second Water Quality/Water Level Well Impact Mitigation Plan, a proposed Environmental Monitoring Plan, a third revised Water Quality Action Plan, a third revised Water Quality/Water Level Well Impact Mitigation plan, and the final Environmental Monitoring Plan. Draft Water Use Permit On October 8, 2010, the District gave notice of its intent to issue a permit that would modify the City's Existing Permit for public supply use. Attached to the notice is a Draft WUP. The modification includes the development of a brackish water well field with 22 additional production wells to allow the City to self-supply the anticipated potable water demand in 2015 for a customer base of approximately 34,259 persons. The annual average quantity authorized by the WUP is 4,200,000 gpd and the permitted peak month quantity increases to 6,300,000 gpd.5/ Special conditions of the Draft WUP require the City to maintain meters on existing and proposed withdrawal points; record and report monthly meter readings; confirm meter accuracy every five years; monitor and report the water quality and aquifer water levels; maintain an adjusted per capita rate of 150 gpd or less; conduct and report water audits; submit annual reports of residential water use, reclaimed water supplied, per capita water use rates, and well field operations; investigate withdrawal-related well complaints; conduct a well field inventory prior to the activation of the proposed production wells; comply with the environmental monitoring plan; set water quality concentration limits prior to the activation of the proposed production wells; and submit an Annual Water Quality Report and an annual Well Field Report. Criteria in Rule for Issuance of WUPs The District utilizes rule 40D-2.381 (the "Rule") in its review of water use permit applications. The Rule opens with the following: In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water . . . Rule 40D-2.381(1), Tab 1 of the Binder Containing the Matters Officially Recognized, pp. 7-8. The Rule requires that the applicant make the required demonstrations through the provision of "reasonable assurances, on both an individual and a cumulative basis that the water use," id., will meet 14 conditions listed in subsections (a) through (n).6/ Condition (a) Condition (a) requires that the City demonstrate that the water use is necessary to fulfill a certain reasonable demand. To meet this condition, the City provided a population estimate through the end of the permit term and also provided a per capita rate that the City had used in the last five years. Calculations set forth in a table prepared at the request of the City show the population projections and projected water demands over a period from 2008 through 2030. These calculations provide reasonable assurances that the proposed water use meets Condition (a). Condition (b) Condition (b) requires that the City must demonstrate that the water use will not cause quantity or quality changes that adversely affect the water resources, including both surface water and groundwater. The City provided a groundwater model showing the anticipated groundwater drawdowns within the Upper Floridan and surficial aquifers. The City also completed a study on the wells within the sections of the actual proposed well field. Based upon the modeling, the drawdowns are not large enough to cause any impacts to quantity or quality of the water in the area. The City has a Water Quality/Water Level Well Impact Mitigation Plan, should there be any complaints of impact, to correct any problems after implementation of the WUP. The well field is designed with 22 supply wells. All 22 wells need not be operated at the same time to meet the water demand. Wells beyond those needed by demand have been designed into the well field so that there can be rotational capacity. Pumping at lower rates from among the 22 wells on a rotational basis is a management tool for protecting the resource and minimizing the effects of the withdrawals. The City's monitoring program provides for the collection of water levels from a large number of wells either on a monthly or quarterly basis to assess water level fluctuations in the Upper Floridan and surficial aquifers. The City also has numerous wells that will sample for chloride sulfates, total dissolved solids (TDS) and other water quality constituents on a monthly and quarterly basis to ensure that the conditions of issuance continue to be met. The City will submit groundwater pumping data on a monthly basis from all the production wells so that the District can determine that the City is indeed adhering to the quantities reflected in the WUP. Groundwater in the Upper Floridan Aquifer flows in a westward direction towards the Gulf of Mexico. The location of the proposed wells is in an urban land use area near the Gulf Coast. The wells will capture brackish groundwater that would otherwise flow westward into the Gulf. Brackish groundwater from the City's service area is the lowest quality water available for public supply in the area. The City plans to construct a reverse osmosis facility to utilize available brackish groundwater. The brackish groundwater pumped from the well field is an alternative supply source. Isolated from the regional system, it will be used for public supply in the service area. The high number of low-capacity wells will provide rotational ability for the City to manage the quantity and quality of the water resource in the area of the well field. Maximum drawdown within the well field area due to the average annual withdrawal is approximately 3 feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. Condition (c) Condition (c) requires the City to demonstrate that water use will comply with the provisions of 4.2 of the WUP Basis of Review, incorporated by reference in rule 40D-2.091, regarding adverse impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources. The Anclote River and associated wetlands are tidally influenced and will not be adversely impacted by the proposed withdrawal. Other wetlands in the well field area examined by a District biologist identified several isolated wetlands of concern. Isolated wetlands are generally more sensitive to withdrawal of groundwater than wetlands connected to larger basins. Initially, the City's proposed drawdowns were deemed to be unacceptable to the District because of the impact to the isolated wetlands of concern. As a first step, the City reduced the quantities of water to be withdrawn. Subsequently, an extensive Wetland Monitoring Plan was developed that included a mitigation plan if adverse impacts did occur to wetlands. Storm-water runoff will be the primary factor controlling the functions of the wetland areas. Mitigation measures, should any adverse impact become too great, include reduction of well field pumping, augmentation with well water, potable water and other feasible sources, and the purchase of mitigation credits. Condition (d) Condition (d) requires the City to demonstrate that the water use will not interfere with a reservation of water as set forth in rule 40D-2.302. The groundwater modeling that the City provided the District indicates that there are no adverse impacts to the minimum flows and levels ("MFLs") in the Anclote River or the water level at the Tarpon Road Deep Well. There are, therefore, no impacts to reservations of water. Condition (e) Condition (e) requires the City to demonstrate that the water use will comply with the provisions of 4.3 of the WUP Basis of Review,7/ regarding MFLs. The closest MFL site is the Upper Floridan Aquifer monitoring well called Tarpon Road Deep, located approximately 2.4 miles southeast of the well field. The impact analysis model results show that at the annual average withdrawal rate of 4.20 million gallons per day ("mgd") approximately 0.1 feet of drawdown at this MFL site is currently projected to occur, assuming static pumping conditions in all other regional groundwater withdrawals. This amount of drawdown will not cause the water level at the Tarpon Road Deep Well to fall below its minimum level. The District is in the process of setting an MFL for the Anclote River. Based on the operation of the new well field and the City's continued operation of their freshwater discharge to the Anclote River from their reclaimed water facility, there will be no impact to the Anclote River. Condition (f) Condition (f) requires the City to demonstrate that the water use will utilize the lowest water quality the City has the ability to use, provided that its use does not interfere with the recovery of a water body to its established MFL and it is not a source that is either currently or projected to be adversely impacted. The City is using brackish water, the lowest water quality available to be used for public supply. The City will be treating it at a reverse osmosis water treatment plant. Water of this quality is not available for others to use without special treatment. Based upon the modeling provided by the City, there are no anticipated impacts to MFLs or any other water body resources. Condition (g) Condition (g) requires the City to demonstrate that the water use will comply with section 4.5 of the WUP Basis of Review,8/ regarding saline intrusion. Groundwater in the Upper Floridan Aquifer in the area of the well field is brackish. The well field's design allowing well rotation minimizes changes in water quality during operation. The amount of drawdown and the fact that water levels will remain above sea level suggests that saline water intrusion will not occur. The reported potentiometric surface in the area of the well is approximately five feet NGVD while the land surface is roughly five feet higher at approximately ten feet NGVD. The City's monitoring and mitigation programs will address adverse impacts from saline intrusion should they occur. Condition (h) Condition (h) requires the City to demonstrate that the water use will not cause the pollution of the aquifer. Soil and groundwater contamination is documented at the Stauffer Management Company site located approximately 3,000 feet west of the well field. The drawdown from the well field is calculated to be about one foot at the Stauffer site. That level of drawdown will not induce migration of contaminants because the upward head differential from the Upper Floridan Aquifer to the surficial aquifer will be altered and the Stauffer site is down gradient of the well field. Testimony from Mr. Wiley established that the aquifers should not be contaminated by the City's withdrawals despite the presence of the Stauffer site: [T]here is a known source of contamination approximately 3,000 feet from the new well field to the west, Stauffer Chemical Company. With the small amount of drawdown that's caused in the Upper Floridan aquifer and the surficial aquifer, there's no potential for the withdrawals to cause pollution of the aquifer. Tr. 254-55. Mr. Wiley's opinion was reached primarily based on the use of the groundwater flow model to determine the drawdown at the Stauffer site and through review of groundwater levels in the Floridan and the surficial aquifers. The United States Environmental Protection Agency (the "EPA") is in charge of managing the contamination at the Stauffer site. A remediation plan has been developed based, in part, on EPA records. The remediation plan includes the construction of a barrier wall in the subsurface around the contaminated area to prevent contaminated groundwater from migrating. The City's groundwater monitoring wells will detect movement of contaminants toward the well field. The monitoring of the wells and the mitigation plan will assist in preventing pollution of the aquifers. Condition (i) Condition (i) requires the City to demonstrate that the water use will not adversely affect offsite land uses existing at the time of the application. Primary existing land uses within the City's service area are residential, commercial, and light industrial. The proposed withdrawal will not adversely impact these land uses as shown in Figure 10 of the City Exhibit 1. Five sink holes are known to exist in the general area around the well field. The closest is approximately 1,000 feet from a proposed well location. Maximum drawdown at the distance is approximately 2 feet. This amount of drawdown does not significantly increase the potential for sinkhole activity. Condition (j) Condition (j) requires that the City demonstrate the water use will not adversely impact an existing legal withdrawal. The Pasco County Utilities' wells located to the north of the well field are listed on the WUP as plugged. Wells owned by Crest Ridge Utility Corp. are located within 0.5 to 0.8 miles of the well field. Drawdown at these wells, due to the average annual withdrawal, is approximately one foot, with an additional 0.4 feet during peak month withdrawal. This amount of drawdown will not create a water level impact at these wells. Maximum drawdown at domestic wells in the area due to the average annual withdrawal is approximately three feet, with an additional 1.5 feet during peak month withdrawal. This amount of drawdown is not likely to impact other wells in the area. The City's mitigation plan addresses any adverse impact that might occur from the City's withdrawal. Condition (k) Condition (k) requires the City to demonstrate that the water use will incorporate water conservation measures. The existing per capita use rate for the City's service area is 110 gpd. Its position well below the district goal of 150 gpd per person demonstrates that the City's water conservation measures are effective. The City uses an inclined block rate structure which encourages water conservation. It also encourages water conservation through a reclaimed water system that encourages conservation of public water supply. It currently uses a little over one million gallons per day of reclaimed water. The City also conserves water through a leak protection program, a water loss audit program, adherence to the District's watering restrictions and provision of a low-flow toilet rebate program through the County, a landscape code, and the provision of educational materials to users. Condition (l) Condition (l) requires the City to demonstrate that the water use will incorporate the use of alternative water supplies to the greatest extent possible. The City has an extensive reclaimed water program. It provides reclaimed water for its golf course, for residential irrigation, for public parks and recreation, and for public schools. The City expanded its reclaimed water storage system recently by doubling the amount of reclaimed water that it is able to store for redistribution. Condition (m) Condition (m) requires the City to demonstrate that the water use will not cause water to go to waste. The City performs an unaccounted-for water audit of its system as required by a special condition of its existing WUP. The unaccounted-for water use is approximately 4 percent, well below the District guidelines. Furthermore, the City's per capita use rate of 110 gpd is well within the District's goal of 150 gpd per person. The City also has an extensive reclaimed water system which offsets potable water supply and prohibits wasted drinking water as an irrigation source. Condition (n) Condition (n) requires that the City demonstrate that the water use will not otherwise be harmful to the water resources within the District. Facts found above support a conclusion that the City has provided reasonable assurances that it meets this condition. In addition, the water that is pumped locally by the City will offset the need for ground water that would have otherwise been obtained from elsewhere in the region. Notices The District published its Notice of Proposed Agency Action in the Tampa Tribune on October 22, 2010. The District published its Notice of Proposed Agency Action in the St. Petersburg Times on October 24, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order determining that Petitioner Ross lacks standing and that his Petition, therefore, be dismissed. Should it be determined in a Final Order that Petitioner Ross has standing, it is recommended that the Southwest Florida Water Management District enter a Final Order that issues Water Use Permit No. 20000742.010 to the City of Tarpon Springs. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2011.
The Issue The issue to be decided in these cases is whether Petitioner, A. Wayne Lujan (Petitioner), was entitled to issuance of five environmental resource permits (ERPs) that Respondent, Department of Environmental Protection (DEP), intended to deny as stated in notices of denial dated October 25, 2019.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. Parties and Background Petitioner Lujan is the president and a director of Kay Haven Associated Enterprises, Inc. (Key Haven), that owns the five parcels, which are the subject matter of this hearing. Although Key Haven owns numerous lots, it chose to submit ERP applications for the Subject Lots within the Key Haven Tenth Addition plat dated September 1966 (Plat). See Joint Exhibit 84. Joint Exhibit 84 The Subject Lots are located in an unincorporated part of the County on the northwestern edge of a body of land lying north of State Road A1A, identified on the Plat as Raccoon Key. The Subject Lots are approximately half a mile east of the city limits of Key West, Florida. The Subject Lots are all characterized by a small upland portion adjacent to Floral Avenue. The majority of the Subject Lots transition into a mangrove fringe of varying depth and submerged lands containing marine seagrasses and sponges. See Joint Exhibits 81 and 82. Joint Exhibit 81 Joint Exhibit 82 DEP is the administrative agency of the state having the power and duty to protect Florida's air and water resources, and to administer and enforce the provisions of part II of chapter 380, part IV of chapter 373, and chapter 403, Florida Statutes. DEP also administers the provisions of Florida Administrative Code chapters 62-312 and 62-330 regarding activities in wetlands and other surface waters of the state. DEO is the state land planning agency and reviews certain permit applications for consistency with its statutory responsibilities under the Florida Coastal Management Program (FCMP), which includes part II of chapter 163, and part I of chapter 380, Florida Statutes. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat. On July 26, 2018, Petitioner filed five applications for ERPs with DEP. Although certain details within each application differed, the applications all sought to authorize construction of a seawall in the waters of the Gulf of Mexico and in unnamed wetlands within the landward extent of the Gulf of Mexico, a Class III OFW, to remove the entirety of the existing mangrove fringe, and to place fill within wetlands and other surface waters for the construction of single-family residences (Project). The minor differences in each application relate to the length of the seawall and the amount of fill necessary for each lot. Although some testimony was provided concerning the differences, no party argued that the differences were material to the determinations necessary in this proceeding. Accordingly, the factual and legal analysis for the Subject Lots and ERP applications were addressed without distinction herein. DEP forwarded a copy of the applications to DEO for its recommendation. On August 24, 2018, DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC Principles for Guiding Development (PGDs) in section 380.0552(7). DEO also objected based on inconsistencies between the Project and the Monroe County Comprehensive Plan (Comp Plan) and Land Development Code (LDC), which implement the PGDs. DEP's first RAI dated August 24, 2018, included DEO's objections. The first RAI notified Petitioner that DEP had concerns with the Project that included: (1) installation of the vertical seawall; (2) placement of fill within an OFW; (3) direct impacts to marine seagrass bed community without adequate mitigation; and (4) failure to provide stormwater management plans since the Project was a common plan of development. The first RAI contained 19 specific requests for additional information. On October 23, 2018, Petitioner responded to DEP's first RAI by submitting slightly revised plans. The revised Project proposed less of a vertical seawall footprint by adding rip-rap to the side seawalls as a means of containing fill. Petitioner's responses to the 19 specific requests for information can generally be categorized as follows: (1) elimination of some vertical seawalls, but not the ones on the waterward edge of the Subject Lots; (2) no change in the placement of fill; (3) Petitioner would attempt to find appropriate compensatory mitigation for the seagrass impacts; and (4) Petitioner did not consider the Project to be a common plan of development. Regarding DEO's objections, Petitioner stated that "[w]e acknowledge that the project has been forwarded to FWC [Florida Fish and Wildlife Conservation Commission] and DEO and that additional comments and information may be requested by those agencies in order to fully evaluate the application." Petitioner did not substantively address DEO's objections. DEP issued a second RAI on November 21, 2018. DEO again objected in a letter dated November 26, 2018. DEP's second RAI raised the same concerns as the first RAI and acknowledged that four of the 19 specific items were adequately addressed. On January 11, 2019, Petitioner responded to DEP's second RAI by again submitting slightly revised site plans. However, the Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. DEP issued a third RAI to Petitioner on February 8, 2019. DEO reiterated its objections by letter dated February 8, 2019. The third RAI raised the same concerns as the first and second RAIs, although DEP acknowledged that six of the 19 specific items were adequately addressed. By letter dated April 8, 2019, Petitioner responded to DEP's third RAI. The response again proposed slightly altered site plans from the January 2019 submissions. Petitioner essentially stated that mitigation opportunities were scarce, but had contacted the County and was looking into derelict vessel removal. However, the proposed Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. As it relates to DEO's objections, Petitioner responded that "[a]fter review of the comments outlined in the [DEO] revised letter, it seems that the DEO objections are related to compliance with the provision[s] of the [Monroe] County [Comp Plan]. We will deal with those issues at the time of local permitting." Petitioner again failed to substantively address DEO's objections. DEP issued its final RAI on May 8, 2019. DEO again objected by letter dated May 6, 2019. This final RAI raised the same concerns as the first, second, and third RAIs. DEP stated that seven of the 19 specific items were not addressed by Petitioner, and that failure to provide a complete response to the prior RAI may result in denial of the ERP applications. On August 29, 2019, Petitioner responded to DEP's final RAI by once again submitting slightly revised plans, and additional information concerning mitigation proposals. However, the Project did not change and Petitioner again failed to substantively address DEO's objections. DEO’s objection letter identified that the ERP applications were inconsistent with the Florida Keys ACSC PGDs, seven Comp Plan policies, and six regulatory provisions of the County's LDC. DEP denied the ERP applications on October 25, 2019. The grounds for denial reiterated the issues not addressed by Petitioner's RAI responses. Specifically: (1) the failure of the Project to provide reasonable assurances concerning direct, secondary, and cumulative impacts to the marine seagrass bed community; (2) continued reliance upon construction of a vertical seawall; (3) failure to provide stormwater management information necessary given the determination that the Project constituted a common plan of development; (4) inconsistency with the FCMP as identified by DEO in its objection letters; and (5) failure to provide reasonable assurances that the Project was clearly in the public interest. Direct Impacts The Project proposed to entirely fill the Subject Lots, contain the fill with vertical seawalls and rip-rap, and construct pile-supported single-family residences. The Project would remove the entire mangrove fringe that aerials and site inspections show is a healthy mix of red, black, and white mangroves along with some green buttonwood. The shallow, open surface waters are dominated by marine seagrasses that vary in density. Petitioner did not make any design modifications to the Project that sought to reduce or eliminate direct impacts to the mangrove fringe and marine seagrasses. Petitioner's resource inventory was done using GIS aerial photography so that the aerial benthic resource surveys submitted to DEP were not ground- truthed. DEP staff conducted physical site inspections and ground-truthing inspections that included swimming in the open surface waters. DEP staff found significant marine seagrasses and sponges that were not mentioned in Petitioner's resource surveys. Depending on the lot, the Project would fill approximately 6,000 square feet of wetlands and other surface waters, i.e., 900 to 2,500 square feet of mangrove habitat and 4,000 to 4,800 square feet of marine seagrass bed habitat. The seawalls depicted in the final version of Petitioner's site plans were "vertical seawalls" because the rip-rap would not face the seawalls to the mean high water line (MHWL). The rip-rap would be placed on submerged resources inside the property lines of the Subject Lots. Also, Petitioner's final plans did not include the mooring of vessels. Vertical seawalls are prohibited in the OFW of the County. Petitioner did not affirmatively demonstrate that fill or shoreline stabilization could be accomplished by using native vegetation instead of vertical seawalls. Secondary Impacts DEP's expert witness, Ms. Mills, testified that Petitioner's ERP applications did not identify any potential secondary impacts. Ms. Mills testified that the expected secondary impacts from the Project included stormwater runoff, shading, and erosion or shoaling. Although the Project plans showed that stormwater would be collected and directed to Floral Avenue, DEP's investigation established that there is no stormwater management system on the side of Floral Avenue abutting the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and surface waters at the lot locations that were not proposed for development, e.g., Lots 36 and 38. The proposed single-family homes are piling-supported structures. Ms. Mills testified that the piling-supported structure would cause shading of the immediate adjacent resources on either side. She identified potential shading impacts to the resources of the undeveloped Lots 36 and 38. In addition, Ms. Mills identified potential erosion or shoaling impacts to the undeveloped Lots 36, 38, and unnamed lots to the left of Lot 40 since they would be surrounded by developed fill on either side. Although Mr. Swakon testified that tidal velocity is low in this area, other aspects, such as effects from wind-driven circulation, were not adequately addressed. Mitigation Petitioner was required to propose mitigation to offset remaining direct and secondary impacts after going through a reduction and elimination exercise. However, Petitioner did not propose any revisions to the Project to reduce or eliminate the direct and secondary impacts identified above. Ms. Mills explained that appropriate mitigation usually provides benefits to the same type of ecological community as the one being impacted. Petitioner's ultimate mitigation proposal was to purchase saltwater credit at a mitigation bank, the Florida Power and Light Everglades Mitigation Bank (FPL EMB). The FPL EMB is located on the mainland of Florida approximately a hundred miles away from the Subject Lots. Ms. Mills testified that saltwater credit would be appropriate to offset and replace the same ecological function of mangroves, but not to offset the submerged benthic communities that would be impacted by the Project. Mr. Swakon testified that calculation of the amount of mitigation credits included a multiplier to address secondary and cumulative impacts, the out-of-kind mitigation, and the dissimilarities in the communities. However, Ms. Mills persuasively testified that the proposed multiplier was not sufficient to justify the three aspects of impact that needed to be offset. Whether to justify dissimilarities between the ecological communities, secondary and cumulative impacts, or the distance of the mitigation site from the Project, the multiplier was not sufficient. Cumulative Impacts The Project is not within a recognized cumulative impact basin of the South Florida Water Management District (SFWMD) for mitigation of impacts purposes. Accordingly, Ms. Mills testified that the plain language of a cumulative impacts analysis is considered. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Also, each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Common Plan of Development Petitioner contested DEP's conclusion that the Project was a common plan of development subject to section 2.0 of the Applicant's Handbook Volume 1 and associated stormwater management requirements. The Project would facilitate the advancement of land uses such as multiple residences, a residential subdivision, or phased site development. The Project comprised a total land area divided into multiple lots or parcels that are under common ownership or control. In total, Petitioner owns 648 lots under common ownership within the Key Haven Tenth and Eleventh Addition. The Subject Lots are all part of a residential subdivision. Thus, the preponderance of the evidence demonstrated that the Project was a common plan of development. For this common plan of development, Petitioner's proposed stormwater management consisted of a cap on the proposed seawalls directing stormwater to swales on each lot. The swales would then direct stormwater to Floral Avenue with no additional treatment or management. During site inspections, DEP staff did not find any evidence of stormwater management along Floral Avenue. Seawalls and Rip-rap The seawalls depicted in the final version of Petitioner's ERP applications would be vertical seawalls because the rip-rap facing the seawall did not come above the MHWL. In addition, the final plans did not include the mooring of vessels. As found above, the Project would place fill, seawalls, and rip-rap on marine seagrasses and sponges. Petitioner failed to affirmatively demonstrate that native vegetation was not sufficient to prevent erosion. The evidence established that Petitioner did not apply for any waiver or variance of applicable ERP rule criteria. FCMP Consistency The evidence demonstrated that Petitioner refused to address DEO's objections based on a mistaken view of the criteria governing ERP applications in the County and the Florida Keys ACSC. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat.; see also § 380.23(6), Fla. Stat. (Each agency charged with implementing statutes and rules that are part of the FCMP, shall be afforded an opportunity to provide DEP with its comments and determination regarding consistency of the activity with those statutes and rules.). Section 380.05(16) prohibits persons from undertaking any development within the Florida Keys ACSC, except in accordance with the PGDs. Thus DEO, as the administrator of the ACSC program, reviewed the ERP applications for consistency with applicable regulatory requirements. DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC PGDs; and inconsistencies between the Project and the County's Comp Plan and LDC which implement the PGDs. DEO identified that the Project would be inconsistent with four PGDs. DEO's expert witness, Ms. Powell, testified that the Project was inconsistent with the PGD, which provides for strengthening local government capabilities for managing land use and development so that the local government is able to achieve these objectives without continuing the ACSC designation. See § 380.0552(7)(a), Fla. Stat. Ms. Powell persuasively testified that the ERP applications were inconsistent with this PGD because the Project would impair the local government's ability to have the ACSC designation removed. Allowing development inconsistent with its regulations would hurt the local government's ability to pursue de-designation. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The second PGD cited by DEO provides for protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. See § 380.0552(7)(b), Fla. Stat. It was undisputed that the Project would result in total removal of the mangrove and buttonwood fringe on each lot and 100% destruction of existing submerged marine resources. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The third PGD cited by DEO provides for limiting the adverse impacts of development on the quality of water throughout the Florida Keys. See § 380.0552(7)(e), Fla. Stat. Ms. Powell testified that degradation to nearshore water quality from prior dredge and fill activity was one of the reasons for the designation of the Florida Keys as an ACSC. Additionally, as further discussed below, the Project would be inconsistent with the County's Comp Plan policies and LDC regulations that further the goal of protecting the quality of water throughout the Florida Keys ACSC. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The fourth PGD cited by DEO provides for protecting the public health, safety, and welfare of the citizens of the Florida Keys, and maintaining the Florida Keys as a unique Florida resource. See § 380.0552(7)(n), Fla. Stat. As further discussed below, the Project would be inconsistent with the County's Comp Plan and LDC regulations that prohibit the use of structural fill within velocity zones. No evidence was presented by Petitioner that the Project would be consistent with this PGD. Ms. Powell testified that DEO considered the remaining statutory PGDs, and determined they were not particularly applicable to these ERP applications. In accordance with its duties, DEO had also reviewed and approved the County's Comp Plan and LDC as consistent with the statutory PGDs. DEO identified that the Project would be inconsistent with seven Comp Plan policies. They are Policies 102.1.1, 101.5.25, 203.1.1, 204.2.2, 204.2.3, 204.2.4, and 212.5.3. Policy 102.1.1 provides: The County shall protect submerged lands and wetlands. The open space requirement shall be one hundred (100) percent of the following types of wetlands: submerged lands mangroves salt ponds fresh water wetlands fresh water ponds undisturbed salt marsh and buttonwood wetlands Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights (TDRs) away from these habitats. Submerged lands, salt ponds, freshwater ponds, and mangroves shall not be assigned any density or intensity. Policy 101.5.25 provides that "[t]he allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available." Policy 203.1.1 provides that "[t]he open space requirement for mangrove wetlands shall be one hundred (100) percent. No fill or structures shall be permitted in mangrove wetlands except for elevated, pile-supported walkways, docks, piers and utility pilings." Policy 204.2.2 provides: To protect submerged lands and wetlands, the open space requirement shall be 100 percent of the following types of wetlands: submerged lands; mangroves; salt ponds; freshwater wetlands; freshwater ponds; and undisturbed salt marsh and buttonwood wetlands. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetland only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Within one (1) year after the adoption of the 2030 Comprehensive Plan, the County shall revise the LDC to include a prohibition of development in salt ponds. Policy 204.2.3 provides: No structures shall be permitted in submerged lands, mangroves, salt ponds, or wetlands, except for elevated, pile-supported walkways, docks, piers, and utility pilings. No fill shall be permitted in submerged lands, mangroves, salt ponds, or wetlands except: as specifically allowed by Objective 212.5 and subsequent Policies; to fill a manmade excavated water body, such as a canal, boat ramp, or swimming pool if the Director of Environmental Resources determines that such filling will not have a significant adverse impact on marine or wetland communities; or as needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County. Policy 204.2.4 provides: No fill or structures shall be permitted in mangroves or wetlands except as allowed by Policy 204.2.3 (as amended) and for bridges extending over mangroves or wetlands that are required to provide automobile or pedestrian access to dwelling units located on upland areas within the same property for which there is no alternative means of access. Such bridges shall be elevated on pilings such that the natural movement of water, including volume, rate, and direction of flow shall not be disrupted or altered. Upland areas shall include disturbed wetlands that have been lawfully converted into uplands through filling. Policy 212.5.3 provides: Bulkheads, seawalls or other hardened vertical shoreline structures shall be permitted on residential canals and altered shorelines only in the following situations: to replace an existing deteriorated bulkhead or seawall; or to stabilize a severely eroding shoreline area. DEO's expert witness, Ms. Powell, persuasively testified that the Project was inconsistent with all seven policies, because it did not protect the submerged lands and wetlands, did not provide for 100% open space within the submerged lands and wetlands, and provided for the construction of a seawall not excepted from the general prohibition. Petitioner did not present any evidence that the Project was consistent with the cited policies. Instead, Petitioner's witness, Mr. Nelson, testified that he felt certain County regulations would militate in favor of allowing the development. The main factor cited by Mr. Nelson was that the Subject Lots were designated as Tier III parcels under the County's LDC. However, designation of a parcel as Tier III did not conflict with the policies cited by DEO. The more credible and persuasive evidence concerning the Project's compliance with the Comp Plan policies was provided by Ms. Powell, who concluded that the Project was not consistent with those policies. DEO identified that the Project would be inconsistent with six sections of the County's LDC regulations. Those are sections 118-4, 118-10(e), 118-12(k)(2), 122-4(b)(5), 130-157, and 130-162. The LDC regulations are more specific methods for implementing the Comp Plan policies outlined above. Section 118-4 provides: No development activities, except as provided for in this chapter, are permitted in submerged lands, mangroves, salt ponds, freshwater wetlands, freshwater ponds, or in undisturbed salt marsh and buttonwood wetlands; the open space requirement is 100 percent. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Section 118-10(e), in relevant part, provides: Mangroves, wetlands, and submerged lands. All structures developed, used or occupied on land classified as mangroves, wetlands or submerged lands (all types and all levels of quality) shall be designed, located and constructed such that: Generally. Only docks and docking facilities, boat ramps, walkways, water access walkways, water observation platforms, boat shelters, nonenclosed gazebos, riprap, seawalls, bulkheads, and utility pilings shall be permitted on or over mangroves, wetlands, and submerged lands, subject to the specific restrictions of this subsection. Trimming and/or removal of mangroves shall meet Florida Department of Environmental Protection requirements. * * * (4) Placement of fill. No fill shall be permitted in any mangroves, wetlands, or submerged lands except: As specifically allowed by this Section or by Section 118- 12(k) (Bulkheads, Seawalls, Riprap) and 118-12(l) (Boat Ramps); To fill a manmade, excavated water body such as a canal, boat ramp, boat slip, boat basin or swimming pool if the County Biologist determines that such filling will not have a significant adverse impact on marine or wetland communities; As needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County Biologist; For bridges extending over salt marsh and/or buttonwood association wetlands that are required to provide automobile or pedestrian access to lawfully established dwelling units located on upland areas within the same property for which there is no alternate means of access. Such bridges shall be elevated on pilings so that the natural movement of water, including volume, rate and direction of flow shall not be disrupted or altered; or As approved for Disturbed Salt Marsh and Buttonwood Association Wetlands with appropriate mitigation as defined by the wetland regulations of subsection (e)(6) of this Section. Section 118-12(k)(2) provides: (2) Vertical type seawalls or bulkheads shall be permitted only to stabilize severely eroding shorelines and only on manmade canals, channels, or basins. Such seawalls or bulkheads shall be permitted only if native vegetation and/or riprap and filter cloth is not a feasible means to control erosion. No new seawalls, bulkheads, or other hardened vertical structures shall be permitted on open water. Section 122-4(b)(5), in relevant part, provides: Coastal high-hazard areas (V zones). Within the areas of special flood hazard are areas designated as coastal high- hazard areas, which have special flood hazards associated with wave wash. The following provisions shall apply in these areas: * * * e. There shall be no fill used as structural support. Section 130-157, Maximum Permanent Residential Density and Minimum Required Open Space, provides at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Section 130-162, Maximum Densities for Hotel/Motel, Campground, Recreational Vehicle, Seasonal and Institutional Residential Uses, and Minimum Open Space, proves at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Ms. Powell persuasively testified that the Project was not consistent with the County's LDC regulations in sections 118-4, 118-10(e), 118-12(k)(2), 122- 4(b)(5), 130-157, and 130-162. The Project was inconsistent with the cited LDC regulations because it sought to construct seawall in submerged land, fill portions of the lots subject to a 100% open space requirement, remove the entirety of the existing mangrove fringe, impair 100% of the marine seagrass resources within the Subject Lots, and utilize structural fill within a Federal Emergency Management Agency (FEMA) designated Velocity Zone. The preponderance of the evidence demonstrated that the Project did not meet the criteria of part IV of chapter 62-312 and section 380.0552. The testimony also demonstrated that Petitioner did not apply for a variance or waiver of the County's LDC regulations. Conditions for Issuance Petitioner generally argued that the five applications provided reasonable assurance for issuance of individual ERPs. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the conditions for issuance under rule 62-330.301. Petitioner failed to provide adequate information regarding stormwater management, the impacts of runoff to Floral Avenue, and runoff flowing back into the Gulf of Mexico OFW. This failure resulted in a lack of reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property; would not cause adverse water quantity impacts to receiving waters and adjacent lands; and would not adversely affect the quality of receiving waters. The preponderance of the evidence demonstrated that the Project would adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Those functions would be 100% impacted and the impacts would not be adequately offset by appropriate mitigation. As found above, the Project would cause adverse secondary impacts to the water resources, adverse impacts to surface water conveyance, and the adverse impacts would not be adequately offset by appropriate mitigation. Additional Conditions for Issuance Petitioner generally contended that the five applications provided reasonable assurance that the Project was clearly in the public interest under rule 62-330.302. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the applicable additional conditions for issuance. The Project would adversely affect the public health, safety, or welfare or the property of others because Petitioner failed to provide adequate information regarding stormwater management. DEP's site inspection found no stormwater management or treatment system on the side of Floral Avenue adjacent to the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and the OFW. The preponderance of the evidence demonstrated that the Project would adversely affect the conservation of fish and wildlife, or their habitat, as a result of the 100% impact to benthic communities, which would not be adequately offset by appropriate mitigation. The preponderance of the evidence demonstrated that the Project would adversely affect marine productivity, the current condition, and the relative value of functions being performed by the impacted areas. Also, the Project would be permanent in nature. The preponderance of the evidence demonstrated that Petitioner failed to provide reasonable assurance that there would not be harmful erosion or shoaling. The Project would not adversely affect or enhance any significant historical and archaeological resources. The Project would not be within a recognized cumulative impact basin of the SFWMD for mitigation of impacts purposes. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Thus, Petitioner did not provide reasonable assurance that each ERP application would not cause unacceptable cumulative impacts upon wetlands and other surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that DEP enter a final order denying Petitioner's five ERP applications. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. COPIES FURNISHED: Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 William Moore, Esquire Moore Bowman & Reese, P.A. Suite 100 551 North Cattlemen Road Sarasota, Florida 34232 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Mail Station 35 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jon F. Morris, Esquire Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Valerie A. Wright, Esquire Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399
Findings Of Fact Application No. 76-00408 is for an existing water use from six wells. The application seeks a total average annual withdrawal of 3.298 million gallons per day and a maximum daily withdrawal of 9.801 million gallons per day. The wells will be located in the Peace River basin in Polk County. Ninety-nine percent of the water will be used for industrial purposes and one percent of the water will be used for irrigation purposes. The applied for consumptive use will not violate any of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on all withdrawal points with the exception of the well to be used for agriculture located at , Latitude 27 degrees 45 minutes 39 seconds, Longitude 81 degrees 37 minutes 07 seconds and the fire well located at Latitude 270 54 minutes 39 seconds, Longitude 81 degrees 36 minutes 00 seconds. The applicant shall submit to the district a record of pumpage for each meter installed in (a) above on a quarterly basis beginning January 15, 1977, with the pumpage recorded on a weekly basis.
Recommendation It is hereby RECOMMENDED that a consumptive use permit in accordance with Application No. 76-00408 be issued with the conditions set forth in paragraph 3 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Citrus World, Inc. Staff Attorney Post Office Box 1111 Southwest Florida Water Lake Wales, Florida 33853 Management District Post Office Box 457 Brooksville, Florida 33512
Findings Of Fact Petitioner SFWMD is a public corporation of Florida. It is charged with the responsibility of issuing permits and enforcing orders relating to surface water management within its jurisdictional boundaries. Respondents Hubschman, as trustees, have full rights of ownership in 1,280 contiguous acres located in Sections 17 and 20, Township 47 South, Range 26 East, Lee County, Florida. These lands are known as Bonita Farms I and II. They are located within the jurisdictional boundaries of SFWMD. In their pre- developed state, these lands could generally be categorized as marsh and wetlands with cypress forest and some uplands in the northern half of the project area. After deciding to develop the acreage for use as pasture and farmland for small vegetable crops, Respondents Hubschman applied for a surface water management permit from SFWMD. The purpose of the permit was to allow the construction and operation of a water management system that would serve both farms. A system was designed to drain water off both parcels through a 62-acre retention area into a natural slough system which runs water into Kehl Canal. In order to create the system, the Respondents Hubschman had the following facilities designed for the site: internal ditches, dikes, pumps, a retention area and control structures. On April 15, 1982, SFWMD issued Surface Water Management Permit No. 36- 00315-S, and Respondents Hubschman were allowed to proceed with their proposed construction plan. A modification to the permit was issued on April 14, 1983. The retention area was enlarged from 62 acres to 88 acres by relocating the perimeter dike. The outfall structure was revised in that the two pumps and the weir were to be replaced by three 18" CMP culverts that would discharge the drained water by gravity flow from the retention area through the slough into Kehl Canal. The duration of the construction phase of its permit was a three-year period, unless the construction of the permitted project discharge structure or equivalent had been completed prior to that date. After the close of the three-year period, there was a dispute between the Respondents and SFWMD as to whether the permit had expired. The controversy was resolved through a compromise agreement. An application for the reissuance of Permit No. 36-00315-S was filed on October 13, 1986. Instead of reissuing Permit No. 36-00315-S, as requested by Respondents Hubschman, SFWMD decided to issue a new permit on May 14, 1987. As part of the processing procedures, SFWMD again reviewed and approved the entire surface water management system designed to serve the 1,280 acres of land proposed by Respondents. Because the additional work proposed for Section 17, the northern section was limited at this stage of development to the selective clearing of additional upland areas to create more improved pasture, the new permit directed attention to Section 20, the southern section of the land. The new permit advised the Respondents that if they wanted to propose additional development to Section 17, they were required to seek a modification of this new permit, Surface Water Management Permit No. 36-00764-S, to include those changes. The Respondents applied for a modification of Permit No. 36-00764-S on July 30, 1987. The proposed modification sought to change the status of the development of Section 17 from improved pasture to small vegetable farmland on 639 acres. The surface water management system plan was modified to drain water in Section 17 to the reservoir on Section 20. The water would be directed via a series of lateral ditches and swales. A six foot high dike and one 27,000 GPM pump were also required. Two additional 18" CMP culverts were required at the discharge facilities to accommodate the increased outflow. The Modification of Permit No. 36-00764-S was approved and issued on June 16, 1988. The original Permit NO. 36-00764-S and its modification are similar to a contract novation because the new permits substituted new obligations between the parties for the old ones under Permit No. 36-00315-S. Based upon this approach to the situation, SFWMD allowed the construction work completed under Permit No. 36-00315-S prior to the Stop Work Order of August 27, 1986, to vest. The completion of the berm around the reservoir in Section 20, as set forth in the letter from Elizabeth D. Ross, attorney for SFWMD, on September 19, 1986, was also allowed to vest. However, if the vested matters were changed in the subsequent permits, they became revisions. The revisions take precedence over the vested matters. Otherwise, completed construction under Permit No. 36- 00764-S as modified, and post Stop Work Order construction remains in effect perpetually for the operation portion of the permit. In order to determine with certainty what was permitted when the Notice of Violation was issued on December 20, 1988, the parties would have to look to the project work actually completed on August 27, 1986, the specific construction approved by SFWMD after that date, the subsequent Surface Water Management Permit No. 36-00764-S issued May 14, 1987, and its Modification issued June 16, 1988. The substantial compliance determination issued by Richard A. Rogers, P.E., Resource Control Department dated September 24, 1987, should also be considered as authorized activity. The Notice of Violation dated December 20, 1988, was issued to Respondent Samuel Hubschman, Trustee. He was advised that recent routine inspections indicate that current on-site activity was in violation of Special Conditions 2,3,4,7,14, 17 & 23 of Permit No. 36-00764-S (issued 5/14/87) and Special Conditions 5,16 & 22 of 36-00315-S (modified 6/16/88). A meeting to resolve these issued was suggested by SFWMD. Respondent Hubschman agreed to attend the meeting through his consultants. Both parties elected to attempt resolution of the Notice of Violation controversy through negotiations in a meeting scheduled for January 5, 1989. To demonstrate their sincerity, the parties agreed not to bring attorneys to the meeting. During the meeting, the parties resolved the controversy by agreeing to the following: SFWMD would no longer consider the project to be in violation of Florida law if the Respondents submitted certain items that would cause SFWMD to issue certain permits and modify others. The Respondents would promptly file an application for a dewatering permit so that the governing board could issue the permit at its March 9, 1989 meeting. The Respondent's contractor would make no field changes in the mitigation or excavation areas without first obtaining appropriate permit modification from SFWMD. Small jockey pumps were to be installed to pump water from the internal water management system into certain cypress and/or mitigation areas for the sole purpose of establishing wetland vegetation within the areas. Respondents were to apply for a modification of Permit No. 36-00764-S, as currently modified, to allow a single phase of mining for the entire affected area. The perimeter dike was to be made structurally adequate. Respondents were to submit an alternative proposal for the disposal of cap rock within ninety days. In the meantime, the contractor could continue to bury the cap rock within the mitigation areas. Both parties demonstrated their reliance on the settlement reached in the meeting by their subsequent actions towards completing and processing the applications for permit modifications and additional permits. Although the noted violations were not cured by these actions, the parties intended to reach a cure or to mitigate for present permit violations through new permit conditions. The preliminary staff review of the Respondents' application for modification of Permit No. 36-00764-S, as currently modified, was completed by March 31, 1989. The following information was requested by SFWMD staff: Revised engineering calculations which reflect that the permitted discharge structure is five 18" CMP culverts. An explanation as to why the 6.3 acre maidencane/juncus marsh designated as a preserve area and the adjacent western preserve area were excavated and otherwise disturbed by project activities. The scrapedown methodology for the replanting of mitigation areas. The Respondents' plans for the area delineated on the plans as pine, which is currently permitted as part of a cypress preservation area. Dike certification and reservoir certification. The above-listed information was required to be returned to the SFWMD within ninety days from the date of the written request. At the close of the ninety days, the information was not received. A second request for a response within thirty days was submitted by SFWMD on August 4, 1989. In September 1989, the Respondents attempted to comply with SFWMD's second request for information. Communications continued in regard to the filed application for modification of Permit No. 36-00764-S, as currently modified, into December 1989. After the thirty days expired for the response to the second request for information dated August 4, 1989, SFWMD filed the Administrative Complaint in these proceedings. After the second request for information, a partial response was received from Respondent Hubschman's consultants. The application continues to go through the review process. It has not yet been deemed complete by SFWMD. As part of the resolution of the Notice of Violation dated December 20, 1988, SFWMD issued permit No. 36-01023-W to Respondent Hubschman for construction dewatering, excavation of an irrigation pond, and water storage at the site. The permit was issued on March 9, 1989. Special condition No. 20 of this permit requires a 200-feet setback from the cypress mitigation area and the irrigation pond being dewatered. The setback is shown on Exhibit 10 of the Bonita Farms Dewatering Application which was made part of the permit. A copy of the permit was attached to the Administrative Complaint. No evidence was submitted by SFWMD regarding alleged violations of Special condition No. 20 which were allegedly observed and documented after the permit was issued, before the filing of the Administrative Complaint Respondent Bob Cadenhead is the contractor hired by Respondents Hubschman to construct the surface water management system. There was no evidence presented to show the connection of another party, Respondent, Cadenhead & Sons Construction, to the project.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Surface Water Management Permit No. 36-00315-S be deemed to have vested as to all construction activity completed under the permit which was not addressed in the subsequent permit issued by SFWMD. The completion of the berm, as set forth in Attorney Ross' September 19, 1986 letter, should also be allowed to vest. That Permit No. 36-00764-S and its later modification be ordered to supercede the prior permit in all matters specifically addressed. That the parties be held to their prior agreements to resolve pending permit violations through the permit modification process. That the alleged dewatering violation in paragraph 19 of the Administrative Complaint be dismissed for lack of evidence. That a specific deadline be set to reasonably complete pending application modifications. That all future enforcement action specifically comply with Rule 40E- 1.612, Florida Administrative Code, and remain separate from any permit or permit modification applications. That the parties create a new, active permit file with current drawings and a specific construction schedule. That the Administrative Complaint and Order filed in these proceedings be dismissed. That future agreements be reduced to writing and signed by the proper parties before they are relied upon by either party. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5737 Petitioner's Proposed Findings of Fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO number 4. Accepted. See HO number 3. Accepted. Rejected. Improper summary. Accepted. See HO number 6. Rejected. Improper opinion testimony. Rejected. Irrelevant. Argumentative. Rejected. Legal argument. Accepted. See HO number 5. Rejected. Legal argument. Rejected. Contrary to fact. See HO number 15. Rejected. Contrary to fact. See HO number 15. The argument presented in this paragraph is overly punctilious. It ignores the detrimental reliance of opposing parties to the agreement. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Legal argument and improper opinion. Rejected. Contrary to fact. See HO number 15 and number 16. Rejected. Matters presented were either not ripe for these proceedings or not proved at hearing. See HO number 16-number 20 and HO number 23. Rejected. Contrary to fact and law. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings. Irrelevant. Rejected. Not set forth in pleadings as separate from the Notice of Violation. Irrelevant. Accepted as fact, resolved by agreement. Rejected. Improper opinion testimony. Rejected. Improper opinion testimony. Rejected. Irrelevant. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. See HO number 15. Rejected. Irrelevant. Accepted. Rejected. See HO number 15. Rejected. Cumulative. Rejected. See HO number 11-number 12. Contrary to fact. Accepted. See HO number 9. Accepted. Accepted. See HO number 16-number 20. Rejected. Matter is still pending. See HO number 16-number 20. Rejected. Resolved through agreement. See HO number 15. Rejected. Matter is still pending. See HO number 16- number 20. Rejected. Legal argument. Rejected. Not in pleadings. Irrelevant. Rejected. Irrelevant. Accepted. See HO number 21. Accepted. Accepted. Rejected. Speculative. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. See HO number 13. Rejected. See HO number 23. Contrary to fact and pleadings. Accepted. See HO number 14. Accepted. See HO number 15. Accepted. See HO number 15. Accepted. See HO number 20. Accepted. Rejected. Argumentative. See HO number 20. Accepted. See HO number 4-number 7. Rejected. Contrary to fact. The permit modifica- tion specifically required replacement of a pump with 3 culverts. See HO number 5. Accepted. See HO number 5. Accepted. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. See HO number 7. Rejected. Irrelevant. Rejected. Contrary to fact. See HO number 7 and number 11. Rejected. Contrary to fact. See HO number 11. Accepted. Accepted. Rejected. See HO number 15. Additional matters were agreed upon which were not reflected in the letter. This is an incomplete summary. Rejected. Irrelevant. Rejected. Irrelevant to these proceedings. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Contrary to fact. See HO number 8 and number 9. Rejected. See HO number 8 and number 9. Contrary to fact. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. See HO number 23. Rejected. Contrary to fact. Accepted. COPIES FURNISHED: John J. Fumero, Esquire Office of General Counsel South Florida Water Management District Post Office Box 24680 West Palm Beach, FL 33416-4680 Kenneth G. Oertel, Esquire OERTEL HOFFMAN FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Russell Schropp, Esquire HENDERSON FRANKLIN STARNES & HOLT, P.A. 1715 Monroe Street Fort Myers, Florida 33902 John R. Wodraska, Executive Director South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The issue in this case is whether Seacoast Utility Authority's challenge to the South Florida Water Management District's proposed issuance of a water use permit to PGA National Golf Club and Sports Center, Ltd. in a critical water supply area should be upheld. As discussed below, the parties have stipulated that, in deciding to issue the permit, the South Florida Water Management District has not evaluated or considered whether the use of reclaimed water was either economically, environmentally or technically infeasible.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Seacoast is a publicly owned water and sewer utility which operates a wastewater treatment facility in Palm Beach County, Florida. Seacoast's service area is bounded on the south by Riviera Beach and on the north by the Town of Jupiter. Seacoast operates four treatment plants: two water plants and two wastewater plants. Seacoast's regional wastewater facility currently generates approximately six (6) million gallons per day ("MGD") of reclaimed water and is permitted by the Florida Department of Environmental Protection ("DEP") as an eight (8) MGD wastewater treatment plant. As discussed in more detail in the Conclusions of Law below, the Florida Legislature and DEP have sought to encourage the reuse of reclaimed water. This policy is one of the many sometimes competing goals that are supposed to be taken into account in the water use permitting process. Until a few years ago, the treated effluent from one of Seacoast's wastewater plants was directly discharged to nearby surfacewater. During the last four years, Seacoast installed a pumping station and five miles worth of transmission lines to deliver all of its treated effluent to its regional wastewater facility. Seacoast claims that these efforts were prompted by its interpretation of changing regulations and a perceived regulatory preference for reuse of water.1 Although Seacoast claims that there has been a change in regulatory emphasis in favor of reuse of reclaimed water, Seacoast is not under a mandate from any court or agency to sell or utilize any specific amount of reclaimed water. It does appear that a deep injection well used by Seacoast for disposal of wastewater is not or was not operating as designed. Seacoast was apparently obligated to construct reclaimed water facilities at its wastewater treatment plant as part of its permit from DEP for the injection well. There was no requirement that the reclaimed water be sold or otherwise utilized. The intended primary disposal for Seacoast's reclaimed water is reuse.2 Seacoast's wastewater treatment plant provides irrigation quality reclaimed water. Seacoast tries to sell the reclaimed water for irrigation use in an effort to recoup the costs incurred in constructing the facilities necessary to reclaim the water. Backup disposal is achieved through injection down a 3300 feet deep injection well into the boulder zone. Once the reclaimed water is injected down the well, it is unavailable for reuse. The evidence suggests that there are other possible utilizations available for Seacoast's reclaimed water including sale to another utility and/or backup recharge to preserve wetlands during periods of high pumpage. For example, Seacoast is apparently in the process of applying for the necessary permits to utilize a portion of its reclaimed water to prevent harm to wetlands adjacent to its Hood Road Well Field by constructing an hydraulic barrier. At all times pertinent to this proceeding, only approximately 1.2 MGD of the reclaimed water generated by Seacoast was being reused. The remaining approximately 5 MGD was disposed of through the injection well. PGA owns and operates three (3) golf courses in Palm Beach County within Seacoast's service area. PGA's golf courses are located within an area that has been designated by the District as a Critical Water Supply Problem Area. Critical Water Supply Problems Areas are geographical regions where the available water supply due to the potential for saltwater intrusion, wetland impacts, or impacts to existing legal uses, is predicted not to meet water demands that are projected during the next 20 years. See, Chapter 40E-23, Florida Administrative Code. The use of reclaimed water is not mandated in such areas. However, the District's Rules seek to insure the optimal utilization of alternative sources of water in such areas to minimize the potential harm to water resources. It is not clear from the evidence presented in this case when PGA first obtained the Permit from the District for golf course irrigation. The Permit allows PGA to use the groundwater table as the source of water for its irrigation. Before its expiration, PGA timely sought renewal of the Permit. On April 12, 1994, the District staff recommended renewal of PGA's Permit. The staff recommendation would allow PGA to continue using the groundwater table as the source of its water. The recommendation did not contain a requirement for PGA to use any reclaimed water as part of its golf course irrigation system. Seacoast became aware of PGA's application to renew its Permit through a routine review of all water use permit applications made to the District by "potential reclaimed water users in [its] service area." Seacoast filed a Petition for Formal Administrative Hearing challenging the District staff's recommendation to renew PGA's Permit. In its Petition, Seacoast alleged that its substantial interests would be affected by the renewal of the Permit because Seacoast's ability to achieve the State of Florida's goals of conservation and environmental protection depends upon PGA, and other similar country clubs, being required to consume reclaimed water. Seacoast contends that the staff recommendation immediately eliminates a major potential consumer of Seacoast's reclaimed water which purportedly impairs Seacoast's ability to meet state objectives for reuse of reclaimed water and results in the undesirable continued disposal of reclaimed water via deep well injection. In connection with its challenge to the proposed renewal of PGA's Permit, Seacoast has stipulated that PGA's proposed withdrawals from the groundwater table would not cause harm to the water resources of the District. Seacoast also admits that it has never evaluated whether it would be environmentally injured by PGA's withdrawals from the groundwater table and/or whether the proposed use by PGA is wasteful. The District does not currently have any goals for the utilization of reclaimed water on a regional basis. Instead, the District oversight of the utilization of reclaimed water is done on a permit by permit basis. As a general policy, the District will not accept a water use permit application in an area of critical water shortage unless a reuse feasibility determination is included. The District's rules do not currently contain any guidelines as to how the determination of feasibility is to be made, nor are there any criteria for reviewing an applicant's determination of feasibility. As discussed below, the District does not even consider the applicant's reuse feasibility determination unless the proposed withdrawal is projected to result in harm to the resources of the District. Even when harm to a resource is projected, the District accepts an applicant's feasibility determination regarding the use of reclaimed water without question or analysis. For the other consumptive use criteria set forth in Rule 40E-2.301, the District independently evaluates the applicant's conclusions to confirm that they are reasonable. In other words, the District treats reclaimed water as an alternative source of water in the event that an applicant's proposed water use is projected to cause harm to the water resources of the District. If no harm is expected to occur to water resources as a result of a proposed use, the District does not review the applicant's determination of whether or not to use reclaimed water. If harm is projected, the applicant is required to look at alternatives like water conservation or utilization of water sources other than those proposed (such as reclaimed water). The applicant is free to select any alternative that mitigates the harm. Thus, even in a Critical Water Supply Area, an applicant can mitigate concerns about harm to the resource without utilizing reclaimed water. In sum, under the District's current procedures, the use of reclaimed water is never required. It is simply one alternative an applicant can utilize to offset or mitigate projected harm to water resources (such as saltwater intrusion, contamination, wetland drawdowns or existing legal use impacts) from a proposed withdrawal. Even when the District staff concludes that an applicant's proposed use will result in harm to water resources, the staff does not critically review the applicant's determination of whether the use of reclaimed water is economically, environmentally, or technically infeasible. With respect to PGA's Permit, the District staff concluded that no harm to the resource was predicted as a result of PGA's proposed use. Thus, PGA's determination not to use reclaimed water was not evaluated or even considered. The District explains that its implementation of the permitting program is based upon its interpretation that its primary responsibility is to prevent harm to water resources. The District points out that there are a number of factors to be considered in utilizing reclaimed water. These factors include, but are not limited to, the cost of the reclaimed water, the cost of retrofitting an irrigation system, the long-term availability of the reclaimed supply and the availability of a back-up supply.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a Final Order dismissing the Petition filed by Seacoast challenging the renewal of Permit Number 50-00617-W to PGA for golf course irrigation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February 1995. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February 1995.
Findings Of Fact Application No. 76-00292 is for a consumptive use permit for one well located in the Green Swamp, Lake County. The water withdrawn is to be used for industrial purposes. The application seeks a total withdrawal of 3.642 million gallons per day average annual withdrawal and 5.112 million gallons maximum daily withdrawal. This withdrawal will be from one well and a dredge lake and constitutes in its entirety a new use. The consumptive use, as sought, does not exceed the water crop as defined by the district nor otherwise violate any of the requirements set forth in Subsections 16J-2.11(2) , (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends issuance of a permit with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on the subject well. The applicant shall record the pumpage from the subject well on a weekly basis and submit a record of that pumpage to the district quarterly beginning on January 15, 1977. The permit shall expire on December 31, 1980. The procedural requirements of Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto, have been complied with as they pertain to this application. The intended consumptive use appears to be a reasonable, beneficial use which is consistent with the public interest and will not interfere with any legal use of water existing at the time of the application.
Recommendation It is hereby RECOMMENDED that a consumptive water use permit in the amounts and manner sought for by the subject application be issued subject to the conditions set forth in paragraph 3 above. ENTERED this 5th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Florida Rock Industries, Inc. Staff Attorney Post Office Box 4667 Southwest Florida Water Jacksonville, Florida Management District Post Office Box 457 Brooksville, Florida 33512
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.
