The Issue Whether Respondent Sarasota County Public Utilities Department (Sarasota County) has provided reasonable assurances pursuant to Rule 17- 555.530(1)(a), Florida Administrative Code, that its proposed water treatment plant will comply with each applicable water quality standard contained in Part III, Chapter 17-550, Florida Administrative Code. Whether Respondent Sarasota County has provided reasonable assurance pursuant to Rule 17-555.530(1)(b), Florida Administrative Code, that its proposed water treatment plant meets adequate engineering design complying with the applicable engineering principles established in Rules 17-555.310 through 17-555.160, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: STIPULATED FACTS Sarasota County Utilities Department is a department established by Sarasota County, a political subdivision of the State of Florida and operates a public utility department which is charged with meeting, among other things, potable water needs of the residents of Sarasota County. At all times pertinent to the issues herein, HRS was responsible for receiving applications and issuing permits for the construction of water treatment plants and the accompanying well field. Petitioner, Charles P. Page, is a resident of Sarasota County and resides at 259 Glen Oak Road, Venice, Florida. Sarasota County filed an Application for a Water Treatment Plant Construction Permit with HRS seeking to construct a well water collection system and a 12 mgd - electrodialysis treatment plant having an auxiliary power system to provide power for the well field and water treatment plant. Sarasota County has previously obtained a water use permit from the Southwest Florida Water Management District (SWFWMD) #208836.00, restricting Sarasota County to feed water for the water treatment plant to 7,303,000.00 gallons average daily withdrawal and 9,625,000.00 gallons peak monthly withdrawal. Sarasota County has received permits for the eleven (11) production wells from HRS. It was the duty of HRS to review the plans and specifications and all supporting documentation to assure that they address and meet every requirement listed in Rule 17-555, Florida Administrative Code, for the issuance of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED: That a final order be entered issuing permit No. PATS No. 204307 & WC No. 1591-91-036 to Respondent Sarasota County, as set forth in the Notice of Intent To Issue dated February 20, 1992, provided that the grant of the subject permit shall include the general and specific conditions in the Intent To Issue with the further recommendation that the third required specific condition found on page 1 of the Specific Conditions be modified as follows: Construction of the electrodialysis reversal water treatment plant covered by this permit shall not begin prior to the issuance of a permit as required by State of Florida Department of Environmental Regulation for the EDR concentrate discharge facility. DONE and ENTERED this 21st day of October, 1992, at Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2002 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 22(47); 23(48); 24(19-20) 29(49); 38(5); 39(19); 42-43(19,20); and 51(49). 2. Proposed finding(s) of fact 2,3,5,6,7,11,14,15,16,18, 19,20,21,25,26,30,31,35,40,45,46,47,49,and 50 are neither material nor relevant to this proceeding or the conclusion reached in the Recommended Order. Proposed finding(s) of fact 4,8,9,10,12,13,17,27,28,and 41 are rejected as not being supported by competent substantial evidence in the record. Proposed finding(s) of fact 32,33,34,36,37, and 48 are unnecessary. Proposed finding of fact 44 is rejected as not being the "opinion" of the Hearing Officer. The transcript will show that the Hearing Officer was only restating the testimony of Judith Richtar. But see Finding of Fact 49. Rulings on Proposed Findings of Fact Submitted by the Respondent Sarasota County The following proposed findings of fact are adopted in substance as modified if the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1 - 20(1) - 20, respectively); 21(27); 22 - 26(22 - 26, respectively); 27(28); 28(29); 29(31); and 30 - 44(32 - 46, respectively). For proposed findings of fact 45 through 65 see Findings of Fact 51 and 52. Proposed findings of fact 66 through 68 are unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Department of Environmental Regulation The Respondent Department of Environmental Regulation adopted Sarasota County's proposed findings of fact 1 through 44, 63 and 64, and 66 with modification. Therefore, the rulings on the Department's proposed findings of fact would be the same as the previous rulings on Sarasota County's proposed findings of fact adopted by the Department. COPIES FURNISHED: Bruce Wheeler Pitzer, Esquire 546 47th Street Sarasota, FL 34234 William A. Dooley, Esquire Nelson, Hesse, Cyril, et al. 2070 Ringling Blvd. Sarasota, FL 33237 Joseph W. Landers, Esquire Landers & Parsons 310 W. College Avenue, 3rd Floor Tallahassee, FL 32301 W. Douglas Beason, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
The Issue Whether application 23181 for a consumptive use water permit should be granted, pursuant to Chapter 383, Florida Statutes. Prior to the hearing, 16 individuals in the Wabasso, Florida, community petitioned to intervene as parties in this proceeding. By Order, dated August 26, 1976, intervention was granted. Thereafter, counsel for the Wabasso Citizens Association, a private, unincorporated association that included the 16 prior intervenors, requested that intervention include all members of the association. There being no objection to the foregoing request, intervention was granted accordingly. The public hearing in this matter included 22 exhibits and the testimony of 21 witnesses, nine of whom were members of the public. Lists of the exhibits and public witnesses are attached hereto. On January 8, 1975, the Town of Indian River Shores, Florida (hereinafter "Town"), and Lost Tree Village Corporation, Indian Rivers Shores, Florida (hereinafter "Lost Tree"), filed application 23181 for a consumptive use water permit with the Central and Southern Florida Flood Control District (hereinafter "District"). The application requested a permit for the withdrawal of 393 acre feet per year of groundwater from two wells located on a parcel of land owned by Lost Tree at Wabasso, Florida. The requested use was for irrigation of two golf courses located on land owned by Lost Tree known as John's Island, a residential community located within the Town, and as an emergency public water supply for the Town. It was proposed that the water be transported by pipeline owned by Lost Tree from Wabasso to John's Island, a distance of several miles. Although the matter was set for public hearing to be held on February 4, 1975, an unfavorable staff report of the District, dated January 30, 1975, resulted in an indefinite postponement of the hearing. A hydrogeological report was prepared for Lost Tree by a consulting firm on February 12, 1976, and submitted by the applicant to the District. A subsequent staff report of the District was prepared on July 28, 1976. Thereafter, the matter was noticed for hearing to be held August 31, 1976. Pursuant to the request of intervenors, a continuance was granted until September 29, 1976. (Exhibits 5,6,7,8,19)
Findings Of Fact The Town is a municipality that was incorporated in 1953. It is located east of the Indian River on an island and extends from the north boundary of Vero Beach for over 4 miles along the Atlantic ocean. In 1969, Lost Tree commenced developing a 3,000-acre tract of land located within the Town as a residential community. Prior to the initiation of this project, there had been very little development in the Town. In order to attract residents to John's Island, two 36-hole golf courses were constructed on the property, known as the North and South Courses, covering approximately 180 acres. At the present time, John's Island comprises over 600 residences, consisting of single and multiple family units, ranging in price from $65,000 to $500,000. The Town has a population of about 1,200, with 65 percent residing at John's Island. The present assessed value of property located in the Town is about $160,000,000 of which almost $66,000,000 is attributable to property in John's Island. The private golf club at John's Island has approximately 500 members, including about 150 from Vero Beach. The golf courses are considered to be the "heart" and "life-blood" of the community (Testimony of Ecclestone, Miller; Exhibits 5,11,12). The water supply of the Town comes from the water system of the City of Vero Beach, pursuant to contract, via a 16" water main which crosses the Indian River and ends at the northern boundary of Vero Beach. There, it is tied into a 12" water main of the Town. The Town has a one million gallon capacity underground storage tank and a 100,000 gallon overhead tank. The 16" main is the only waterline that crosses the Indian River and, in the event of a rupture, the Town would be limited to its stored supplies (Testimony of Miller, Little, Exhibits 5,17). The John's Island golf courses require irrigation of approximately 70 acres. In the past, irrigation water has been obtained from a system of shallow wells on the property, treated sewage effluent from the surrounding community, and stormwater, all of which is discharged into two ponds located on the courses. Additionally, treated potable water is obtained from the City of Vero Beach through two two-inch water meters that were installed in 1975. Prior to that time, an undisclosed amount of city water was obtained for irrigation and other purposes through city meters installed on fire hydrants in the area. The use of city water was required in order to supplement the resources available on the John's Island property. During the period May, 1975, through August, 1976, the amount of water obtained from the City of Vero Beach that was used for golf course irrigation totaled 54,057,000 gallons, an average of some 110,000 gallons per day. At the present time there is no water problem, insofar as irrigation is concerned, on the South Course which obtains irrigation water from sewage effluent and a number of shallow wells. However, test samplings over the years have shown a gradual increase in the amount of chlorides in the water and it is questionable whether such water will continue to be suitable for irrigation in the foreseeable future. Recent tests show the chloride content of the water at 450 ppm. The type of Bermuda grass on the golf courses can grow satisfactorily with water containing not more than 1,000 ppm. City water is used only on the North Course. The water obtained from the shallow wells in that area is highly saline in content. A recent water test showed a chloride content of 3,800 ppm. Additionally, immediately before an eight inch rainfall which lowered the chloride content to the foregoing figure, the greens on the North Course tested at 6,300 ppm in chloride content (Testimony of Luke, Little, Exhibits 6,7). During periods of drought, the City of Vero Beach has requested John's Island and other water users to either curtail or stop the use of city water for non-domestic purposes. Such requests have been received approximately six times during the past year. In April, 1976, the city water used for golf course irrigation at John's Island was shut off for a period of eight days as a result of a request from officials of Vero Beach. If insufficient irrigation water is not received for a period of 10 days to two weeks, it is extremely probable that a golf course would have to be replanted at an approximate cost of $60,000.00 to $80,000.00 and would require a period of six months for suitable growth. Both the Town and John's Island always cooperated fully with the requests of Vero Beach to curtail water use (Testimony of Luke, Miller, Little, Exhibit 17). At the time irrigation water sources were being explored at John's Island, a test well was drilled to a depth of 2020 feet into the Floridan aquifer underlying the property, but an inadequate quantity of water was developed. Lost Tree owns some 25 acres of land at Winter Beach, Florida, which is located west of John's Island across the Indian River. Although test wells there produced satisfactory water, it was not feasible to use this source due to prohibitions against excavation for such purposes in the Indian River. Due primarily to economic considerations of the high cost of using treated city water for golf course irrigation, and the inconvenience and possible hazards of water interruptions from that source, Lost Tree decided to supplement its resources from water withdrawn from wells to be located on a 4.869 acre tract of land it purchased in Wabasso. Although a deep well was considered at that site, state agencies advised that the Floridan aquifer was overloaded in that area to a degree of 200 percent. Accordingly, in 1973, two ninety-foot deep wells were constructed on the site approximately 500 feet apart into the underlying shallow aquifer. Pump tests showed that the chloride content was within satisfactory limits. Thereafter, Lost Tree in its own name and that of The Town, obtained necessary rights-of-way and permits for the placement of a system of pipes for transportation of water from the Wabasso wells to John's Island. These consisted of a 16" water line from the Wabasso site east over a newly constructed bridge and several existing bridges to Highway A1A where the size of the line south to John's Island was decreased to twelve inches. An agreement was entered into between Lost Tree and the Town on December 19, 1974 whereby the former agreed to supply emergency needs of the Town from water obtained from the Wabasso wells. About that same time, the pipe system was completed and the present application filed with the District (Testimony of Lloyd, Ecclestone, Exhibits 2,6,9). The area immediately surrounding Lost Tree's land in Wabasso consists primarily of residences, groves, and trailer parks. The residents of the unincorporated Wabasso area depend solely upon the shallow aquifer for their domestic water needs since there are no utility services in the area. Grove irrigation normally is accomplished by deep wells to the Floridan aquifer. After the application herein was filed in January, 1975, numerous letters of objection to the proposed withdrawal were filed with the District by residents of the Wabasso community and from local organizations. These objections, for the most part, expressed apprehension that the applicants would be withdrawing far more water from the well field than their fair share based on the size of Lost Tree's land in Wabasso. The objectors also claimed that the requested withdrawal would have a serious detrimental effect on existing users. They further protested the concept of extracting potable water from one area and transporting it to another area for irrigation use on recreational facilities. The initial Staff Report of the District on January 30, 1975, took such objections into consideration and recommended denial of the application based on the unsuitability of the well field site. It found that withdrawal of the requested water for golf course irrigation was not a reasonable and beneficial use because it greatly exceeded the water budget for the site, harmed existing legitimate users in the area by creating drawdowns of several feet which would increase the possibility of potable water supply wells running dry, harming potential future legitimate users by lowering the water table and exporting the water that they might have utilized, and because it threatened to harm such users and the resource itself by "upconing" saline water from the bottom of the aquifer into the fresh water producing zone of the aquifer. Although the report stated that there would be no objection to permitting an allocation on the order of 7.5 acre feet per year, which was the equivalent to the water crop, it was not recommended because such an allocation would do little to meet the applicant's needs for irrigation water (Exhibit 6, Composite Exhibit 20). Recognizing the need for further studies to support its application, Lost Tree hired a firm of consulting groundwater geologists and hydrologists to conduct an investigation of potential sources of irrigation water for both the John's Island and the Wabasso sites. The study confirmed prior conclusions that it was not practicable or feasible to develop the necessary irrigation water from sources available at John's Island. As to the Wabasso area, the report found that the shallow aquifer was not being fully utilized and that extraction of the proposed quantity of water would not exceed the capacity of the aquifer to provide it. It also determined that the presence of a continuous layer of impermeable clay within the Hawthorn formation effectively separates the Floridan from the shallow aquifer. No interference in the water levels of the Floridan aquifer should occur nor is it likely there would be salt water intrusion into the shallow aquifer. However, based on the formulation of a "mathematical model," it was predicted that the proposed withdrawal could adversely affect existing shallow wells within a few hundred feet of the applicant's well field by "drawdown" which could lessen the pumping ability of centrifugal pumps. Nearby existing wells, such as those located in a trailer park immediately west of Lost Tree's well field, could lose suction in pumping and thereby owners might experience delay in extracting water from the wells (Testimony of Amy, Exhibits 4, 8). Although one Wabasso resident who owns property near Lost Tree's wells has experienced a decrease in pressure in her well and poor quality water, and another nearby resident's well went dry, there is no clear evidence that Lost Tree's drilling of its two wells and consequent testing thereof caused these problems. Testimony of other Wabasso residents expressed their apprehension as to possible salt water intrusion and unavailability of water in the shallow aquifer if the requested withdrawal is approved. Other residents and public witnesses challenged the fairness of permitting one land owner to deplete local water supplies by withdrawals for transport to another area for recreational purposes (Testimony of Chesser, McPherson R., Pangburn R., Jackson, Mrs. S.B., Kale, Stout, Wintermute, Pangburn, K., Bidlingmayer, Willey, Gertzen). The District Staff Report, dated July 28, 1976, as supplemented by an addendum, dated August 30, 1976, reviewed the hydrogeological study submitted by the applicants and concluded that withdrawal of a specified amount of water from Lost Tree's Wabasso wells would represent a reasonable and beneficial use of the resource that did not appear to harm either the resource or existing users. It calculated the "crop requirement" for the golf courses on the basis of 135 acres. Testimony at the hearing established that the area required to be irrigated was only 70 acres. Consequently, the report's recommendation as to the annual water allocation for golf course irrigation was scaled down accordingly. Recommendations as to daily withdrawals were based upon the maximum billing by the City of Vero Beach for a 22-day period in January and February, 1975, plus a 20 percent allowance to provide a reasonable degree of operational flexibility. The conclusion of the staff that the withdrawal would not harm existing users is questionable in the light of the applicant's own hydrogeological study and testimony of its experts (Testimony of Winter, Exhibits 6,7,22). The Staff Report recommended that certain conditions be imposed upon any issuance of the requested permit. The following findings are made as to the reasonableness of such proposed conditions: Annual allocation of no more than 51.044 million gallons. FINDING: Reasonable. This permit shall expire 5 years after permit issuance. FINDING: Reasonable. The use may require reevaluation based upon developing needs of the area of withdrawal for higher priority uses of the resource. The total maximum monthly withdrawal from the two wells in Wabasso shall not exceed 6.931 million gallons. FINDING: Reasonable. The total daily withdrawal from the two wells in Wabasso shall not exceed 378,000 gallons. FINDING: Reasonable. Daily pumpage on a monthly basis shall be reported to the District during the following month. This data must be obtained through the use of an in line totalizing meter or meters at the well field. FINDING: Reasonable. Prior to the initiation of any pumping from the wells in Wabasso the permittee must survey all existing wells (with the owners' permission) located within 800 feet of each of these wells. Should it be determined that the permittee's pumping as recommended may adversely affect an existing well the permittee is to be held responsible for making timely corrective measures as deemed necessary at no expense to the owner, in order to preserve the water supply capability of that facility. A complete and detailed report of the survey and corrective measures taken by the permittee shall be submitted to the District. The District will then issue a notice authorizing the permittee to begin pumping as required. FINDING: Unreasonable. Although it is conceded by the applicants that adverse effects upon nearby wells may well occur, attempts to make determinations as to actual effects prior to full operation of Lost Tree's wells would only be speculative in nature. It is noteworthy in this regard that upon issuance of a temporary authorization to Lost Tree to withdraw water commencing in August, 1976, a similar precondition was imposed with a report of a survey and corrective measures taken to be submitted to the District prior to authorization to begin pumping. A cursory survey was performed by a representative of Lost Tree that consisted merely of attempting to locate surrounding wells by off-premises observation. No attempt was made to contact well owners or to obtain information as to the types of pumps on the wells. Such a survey is patently inadequate for the purposes desired by the District and it is considered impracticable and onerous to saddle the applicant with the burden of such a condition. Although withdrawals of water under the temporary permit commenced on September 18, 1976, and continued thereafter, there is no evidence that any complaints were registered by adjacent well owners as a result of the withdrawals (Testimony of Pearson, Exhibits 13, 14). For a period of 18 months after the first full week of operation in which no substantive complaints of adverse impact are received by the District, the permittee must assume full responsibility for taking the appropriate corrective to rectify any adverse impact their withdrawals create on any existing users within the area influenced by their withdrawal. Upon receiving a substantive complaint of adverse impact upon an existing user, the Executive Director of the District will issue a notice prohibiting any further withdrawals from the wells in Wabasso until corrective measures are taken by the permittee at no expense to the existing user, or until the permittee proves that their withdrawal is not the cause of the problem. The Executive Director of the District will issue a notice to resume withdrawals when the District has been satisfied that the situation is remedied. FINDING: Reasonable in part. The condition should be modified to extend the period of the permittee's responsibility for corrective action as to adverse impact on existing users to the entire life of the permit rather than for a period of only 18 months. Further, the District's prohibition of withdrawals after the receipt of a complaint is arbitrary and inconsistent with the method of administrative enforcement procedures as specified in Section 373.119(1), Florida Statutes. To help define the actual impact of the permittee's withdrawal a total of at least seven observation wells shall be installed. The observation wells shall be located between the permittee's wells and Indian River, two shall be located to the west and the remaining two shall be located either to the north or south of the permittee's wells. The locations and depths of these wells shall halve District concurrence. A continuous water level recording device shall be installed on one off these wells. FINDING: Reasonable. Although the installation and monitoring of a number of observation wells imposes a financial burden on the applicants, it is considered a proper requirement to assist in determining the impact of any withdrawal. The time for installation and specifications thereof should be set forth in any permit issued. Hydrographs from the recording device on one of the observation wells and from weekly hand measured water levels on the remaining observation wells shall be submitted to the District on a monthly basis. This data shall be submitted in the month following the period of record. All water level data shall be measured and recorded to the nearest hundredth of a foot and referenced to mean sea level. FINDING: Reasonable. By acceptance of this permit the permittee acknowledges that this permit confers no prior right to the permittee for the use of water in the amount allocated and for the purpose stated. FINDING: Unreasonable. The condition is ambiguous and involves legal aspects that are not proper for determination at this time. Any future application involving the use of the withdrawal facilities permitted herein, shall be considered as an application for a new use and it shall be reviewed accordingly. FINDING: Unreasonable. See comment in I above. All existing Floridan wells located on the applicant's properties must be abandoned in accordance with the current applicable standards of the Department of Environmental Regulation. Abandonment procedures must be carried out within 6 months of the date of issuance of this permit. FINDING: Unreasonable. The abandonment of existing Floridan wells involves subject matter not embraced within the application. An officer of the Lost Tree Village Corporation shall submit with each report required by the District a sworn and acknowledged affidavit that the report reflects the actual measurements or readings taken. FINDING: Reasonable. The Permittee shall obtain a water sample from a pumping well at the Wabasso well field site once a month, within five days of the end of the month. This sample shall be analyzed for chloride content, and the results reported to the District within 14 calendar days after collection. Should the District determine that a significant change has occurred in the chloride content of the water being withdrawn from the Wabasso well field, the District shall initiate a new review of the application. FINDING: Reasonable. Upon installation of the observation wells, a water sample shall be obtained from these wells and analyzed for the following parameters: Chloride Total Dissolved Solids Conductivity Sulfate Calcium Magnesium Sodium Bicarbonate This analysis shall be submitted to the District within 14 days after collection. During the last five days of the months of May and November of each year, during the duration of this permit, the permittee shall obtain one water sample from each of the installed observation wells. These samples shall be analyzed for Chloride content, and the results reported to the District within 14 days after collection. FINDING: Reasonable. If the permittee can demonstrate to the satisfaction of the District that the groundwater withdrawn by the south golf course well point system is no longer suitable for the irrigation of the golf course, the annual allocation shall be increased to 82.942 million gallons. FINDING: Unreasonable. Future needs should be the subject of modification of permit terms at an appropriate time, pursuant to section 373.239, F.S. An emergency authorization was issued to the applicants by the governing board of the District on August 30, 1976. This authorization contains certain special conditions including a requirement to conduct and submit a preauthorization survey and report concerning existing wells located within 800 feet of the applicant's wells. In addition, a condition of the authorization was that no withdrawals shall be made unless the City of Vero Beach had ordered the applicant to stop the use of water from its system for golf course irrigation. The evidence shows that neither of these conditions was met by the applicant, but yet withdrawals were made during the month of September, 1976 without District authorization (Testimony of Winter, Rearson, Exhibit 13). The applicant's disregard of these requirements indicates the need for a further special condition if a permit is granted, to ensure that adjacent land owners are protected in the event of adverse effects upon their water supply. To accomplish that, it is found that the following additional condition is reasonable and necessary: P. The Board shall require the applicant to furnish a bond in an appropriate amount, as authorized by Rule 16K-1.061, F.A.C. It is found that insufficient evidence has been presented to determine the merits of the request of the Town of Indian River Shores for an emergency water supply from the Wabasso wells.
Recommendation That a consumptive water use permit, with conditions as specified herein, be issued to applicant Lost Tree Village Corporation for the irrigation of its two golf courses at John's Island. DONE and ENTERED this 9th day of November, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1976. COPIES FURNISHED: John H. Wheeler, Esquire Post Office Box V West Palm Beach, Florida Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 William T. McCluan, Esquire 65 East Nasa Boulevard Post Office Box 459 Melbourne, Florida 32901 =================================================================
Findings Of Fact The City of Boynton Beach, Florida, filed application number 24859 with the South Florida Water Management District (formerly the Central and Southern Florida Flood Control District) for an annual allocation of 3.89 billion gallons (10.7 mgd) for a public water supply system for its service area of 18,351 acres for a period of ten years. The application was dated February 26, 1976. A supplemental engineering report was submitted on April 26, 1977, and a water withdrawal management plan on August 18, 1977. The delay in completing the documentation for the application was due to the applicant's completion of a test well program and hydrogeological evaluation of the aquifer capability of the 34 acre tract known as the "Jarvis Property," the proposed site of eight future wells. (Composite Exhibit 1) The existing raw water supply system for Boynton Beach consists of four separate well fields, comprising a total of 14 wells with a total rated capacity of 9700 gpm. Wells 1 through 5 were built during the period 1946-1958. Wells 6 through 11 were built from 1961-1973, and wells 12 through 14 were completed in 1976. The application seeks approval for eight additional wells, numbers 16 through 22 to be located on the "Jarvis Tract." It is proposed that wells numbers 15 and 16 be built immediately upon approval of the application and that the remaining six new wells be constructed at a rate of two per year through 1982, subject to demand. The city presently operates a water treatment plant with a treatment capacity of 8 mgd and is expanding that facility to a capacity of 16 mgd. It is anticipated that this expansion and the new well field will meet projected water demands in the service area through 1987. (Testimony of Swan, Composite Exhibit 1, Exhibit 2) The Applicant's present wells tap the shallow aquifer overlying the Hawthorne formation. These wells range in depths from 54 to 115 feet below ground surface. The planned wells will reach 180 to 230 foot depths. The shallow aquifer is largely recharged by local precipitation and a surface canal system. There are two major canals located near the Applicant's well fields in distances ranging from directly adjacent to approximately one mile. Canal E-4 is located on the western boundary of the proposed Jarvis well field which would provide direct recharge in the area. Withdrawal of water from wells number 1-5 had to be curtailed due to a landward movement of the freshwater/saltwater interface. The wells at present are used for emergency standby purposes only. After wells number 12-14 were put into operation, it was discovered that the withdrawals affected residential shallow irrigation wells nearby. Three of the residents have filed objections to the application for this reason. This problem will be resolved by the development of the Jarvis well field which will allow curtailment of pumpage from wells numbers 12-14. Well number 14 presently is not in operation due to an unknown polluted condition. The curtailment of use of wells 1-5 will aid in controlling any salt water intrusion. A U.S. Geological Survey saltwater monitoring well in the area indicates that there has not been any net landward movement of the saltwater/freshwater interface in the shallow aquifer since 1973. The Applicant's water withdrawal management plan which will substantially reduce the pumpage from wells 6-14 will also reduce the threat of saltwater intrusion by maintaining the aquifer water levels in the area at a higher elevation. (Exhibits 2-4, 6, Testimony of Gresh, Higgins, Kiebler) The City of Boynton Beach currently has a population of 51,000 and it is projected that by 1987 the population will reach 71,000 which is the maximum limit of its water treatment facilities. The city plans to build a new treatment plant and well field in the western portion of the area when the capacity of the current and proposed well fields are reached. It would be uneconomic to place the currently proposed well field in that area due to the requirement of building a raw water line for a distance of approximately four miles. (Composite Exhibit 1, Testimony of Cessna) The South Florida Water Management District staff recommends that the application be approved in its entirety for a period of ten years, subject to 18 special conditions which are acceptable to the Applicant. The district staff concluded that sufficient water is available in the Applicant's area to support the 1987 level of withdrawals and that the proposed consumption rate reflects a reasonable use of water. The staff further found that there would be a minimal impact on existing users in the area and that westward lateral intrusion of saltwater from the coastline will be reduced. (Exhibit 2-3, Testimony of Higgins)
Recommendation That the application be approved and that a water use permit be issued to the Applicant pursuant to application number 24859 for a ten year allocation of 3.8 billion gallons, subject to the special conditions recommended by the South Florida Water Management District staff. DONE and ENTERED this 21st day of February, 1978, in Tallahassee, Florida. COPIES FURNISHED: Gene Moore, Esquire City Attorney City of Boynton Beach Post Office Box 310 Boynton Beach, Florida 33425 THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Steve Walker, Esquire 3301 Gun Club Road Post Office Box 3858 West Palm Beach, Florida 33402
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County. On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.
Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issue is whether Respondent's water use permit should be revoked for nonuse of the permit for a period of two years or more.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The District is a state agency charged with the responsibility of issuing water use permits under Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40B- 2 for the geographic area under its statutory jurisdiction. Alachua County is within that geographic jurisdiction. Respondent is a Florida corporation with offices at 700 Northwest Cheeota Avenue, High Springs, in northern Alachua County. It owns approximately 700 acres in High Springs (west of Interstate Highway 75) on which it operates a church retreat and summer camping and recreational facility known as Camp Kulaqua. The property surrounds, and is contiguous to, Hornsby Spring, a first-order magnitude spring (having a flow rate of 100 CFS or greater) which, under normal conditions, discharges into the nearby Santa Fe River. Hornsby Spring is one of 296 documented springs within the District's jurisdiction. After receiving an overture from a representative of a private water bottling company, on September 28, 1999, Respondent filed an application for a General Water Use Permit in Township 7 South, Range 17 East, Section 26, in High Springs. In its application, Respondent represented that it desired a daily allocation of 2,000,000 gallons; that it intended to install two 12-inch wells, each having a capacity of 1,400 gallons per minute, just east of, and upgradient from, Hornsby Spring; and that all water withdrawals would be used in conjunction with a privately-owned commercial spring water bottling facility to be located on its property. The application also represented that the facility would employ 36 persons and operate 168 hours per week. The application was reviewed by a former District hydrogeologist, William H. Kirk. During the review process, and in response to Mr. Kirk's request for more information, Respondent provided a comparison of the requested allocation with the overall flow of Hornsby Spring. This was because Mr. Kirk was concerned that the requested allocation was "a bit high," and he wanted to ensure that the issuance of the permit would not cause harm to, or adversely affect, the water resources. Under a professional guideline that Mr. Kirk used, if the applicant could show that the cumulative amount being withdrawn was to be less than ten percent of what the available data showed to be the mean spring flow, the District would consider it to be "an acceptable impact." Notwithstanding Mr. Kirk's use of this guideline, the District points out that there is no District rule or policy sanctioning the ten percent rule, and at hearing it denied that this standard is used by the District in assessing water use applications. Further, the Permit itself does not refer to a relationship between spring flow and the size of the allocation. Even so, this analysis was considered by Mr. Kirk in determining whether Respondent had given reasonable assurance that the spring would not be impacted. In its response to the request for additional information, Respondent reduced its requested allocation to 750,000 gallons per day and indicated that if a bottling plant were to be constructed on its property, approximately 700,000 gallons of the total allocation would be consumed in "bulk transfer and bottling," with the remainder for camp use. More specifically, Respondent indicated that it would allocate 490,000 gallons per day for bulk transport, 210,000 gallons per day for spring bottling water, and 50,000 gallons per day for incidental uses at its property. By reducing the allocation from 2,000,000 gallons per day to 750,000 gallons per day, Respondent's requested average daily allocation represented only 0.4 percent of the average daily spring flow as measured over the last 28 years. The reduced allocation satisfied Mr. Kirk's concern that Respondent demonstrate a reasonable demand and a reasonable need for that allocation, and he recommended approval of the application.2 On February 25, 2000, the District approved the application and issued Water Use Permit No. 2-99-00130 (Permit).3 The Permit authorizes an average daily withdrawal of 0.7500 million gallons per day (750,000 gallons per day) or a maximum daily withdrawal and use of 0.7500 million gallons per day with an annual allocation not to exceed 273.750 million gallons (273,750,000 gallons) per calendar year in conjunction with the operation of a privately-owned water bottling plant. The Permit expires on February 25, 2020. After the Permit was issued, under the regulatory process in place, Respondent was required first to obtain a permit for a temporary test well which would be used to collect information concerning the site of the proposed activity, and to then file an application for permits authorizing the construction and operation of the two 12-inch production wells. The Permit contains a number of conditions, two of which require a brief comment. First, Condition No. 2 provides that "[t]his permit is classified as unconfined [F]loridan aquifer for privately owned bottled water plant." This means that all water withdrawals must be made from the unconfined Floridan aquifer, as opposed to the spring head of Hornsby Spring. (Respondent's proposed siting of its two production wells 660 yards east of the spring is consistent with this provision.) Second, Condition No. 4 provides that "[t]he permittee shall submit daily pumpage records on a monthly basis to the [District]." Pumpage reports are filed by permittees so that the District can determine whether the permit is actually being used, and if so, to ensure that the amount of water being withdrawn under the permit does not exceed the authorized allocation. As it turned out, pumpage reports were never filed by Respondent. (However, the record shows that the District has never strictly enforced this requirement for any permittee.) In late 2002, the District staff undertook a review of the nine water bottling permit holders within its jurisdiction, including Respondent. That category of permit holders was selected for review because of the small number of permits and the limited resources of the District staff. (In all, the District has probably issued several thousand permits to other types of users.) On February 4, 2003, the District served its Complaint under the authority of Sections 120.60 and 373.243, Florida Statutes, and Florida Administrative Code Rule 40B-2.341. As grounds for revoking the permit, the District alleged that there was "non-use of the water supply allowed by the permit for a period of two (2) years or more." Although Respondent contends that it should have been given an opportunity to correct the nonuse allegation before the Complaint was issued, nothing in the Administrative Procedure Act or District rules requires that this be done. Until the issuance of the Complaint against Respondent in early 2003, and similar Complaints against eight other permit holders at the same time, the District had never invoked this statutory provision.4 There is no evidence to support Respondent's contention that the Complaints were issued for "purely political reasons." On March 4, 2003, Respondent requested a formal hearing challenging the District's proposed action. In the parties' Pre-Hearing Stipulation, the issues have been broadly described as follows: whether Section 373.243(4), Florida Statutes, is to be strictly or liberally construed; whether Respondent's nonuse is based upon extreme hardship for reasons beyond its control; and whether the District is equitably estopped from permit revocation. (According to the District, even if the Permit is revoked, such revocation is without prejudice to Respondent reapplying for, and receiving, another permit so long as it meets all applicable requirements.) Equitable Estoppel Respondent first contends that the District is estopped from revoking its Permit on the theory that, under the circumstances here, the doctrine of equitable estoppel applies. For that doctrine to apply, however, Respondent must show that the District made a representation as to a material fact that is contrary to a later asserted position; that Respondent relied upon that representation; and that the District then changed its position in a manner that was detrimental to Respondent. See, e.g., Salz v. Dep't of Admin., Div. of Retirement, 432 So. 2d 1376, 1378 (Fla. 3d DCA 1983). The District issued Respondent's Permit on the condition that Respondent operate in conformity with all pertinent statutes and regulations. This finding is consistent with language on the face of the Permit, which states that the Permit "may be permanently or temporarily revoked, in whole or in part, for the violation of the conditions of the permit or for the violation of any provision of the Water Resources Act and regulations thereunder." Respondent relied on the District's representation that it could use the Permit so long as it complied with all statutes and regulations. In reliance on that representation, in addition to staff time, after its Permit was issued, Respondent expended "somewhere around" $70,000.00 to $74,000.00 for conducting water quality testing; sending cave divers underground to ascertain the correct location of the portion of the aquifer on which to place its production wells; drilling a 6-inch test well in August 2000; obtaining the City of High Springs' approval in March 2000 for industrial zoning on a 10-acre tract of land on which to site a "water plant"; and engaging the services of a professional who assisted Respondent in "seeking out businesses and getting the right qualifications of the spring water to make sure that it was a marketable water." The District has never asserted anything different from its original position: that if Petitioner complied with all statutes and rules, it could continue to lawfully make water withdrawals under its Permit. The issuance of the Complaint did not represent a change in the District's position. Because a change in position in a manner that was detrimental to Respondent did not occur, the necessary elements to invoke the doctrine of equitable estoppel are not present. Was the Permit Used? A preliminary review by District staff indicated that Respondent had never filed the daily pumpage reports on a monthly basis and had never requested permits authorizing the construction of the two 12-inch production wells. These preliminary observations were confirmed at final hearing, along with the fact that Respondent has never entered into an agreement with a water bottling company (although draft agreements were once prepared); that Respondent has never constructed a water bottling facility; and that no operations were ever conducted under the Permit. Therefore, the evidence supports a finding that Respondent did not use its Permit for the two-year period after it was issued, as alleged in the Complaint. Respondent's contention that the evidence fails to support this finding belies the evidence of record. In an effort to show that it actually used the Permit, Respondent points out that in August 2000 it applied for, and received a permit to construct, an unmetered 6-inch test well in association with its General Water Use Permit. (Respondent sometimes erroneously refers to the test well as a test production well. This is incorrect as the well is a test well, and not a production well.) After the test well was installed, at some point Respondent says it began withdrawing approximately 50,000 gallons per day of water from that well for incidental uses associated with the operation of Camp Kulaqua.5 These withdrawals were made on the assumption that the test well permit fell under the broad umbrella of the General Water Use Permit. (Respondent also has a permitted 6- inch diameter well and an unregulated 4-inch well on its premises, both of which are used for water supply needs at Camp Kulaqua.) It is true, as Respondent asserts, that its Permit authorized incidental withdrawals of up to 50,000 gallons per day for unspecified uses at Camp Kulaqua. However, these withdrawals are authorized under the General Water Use Permit and not the test well permit. The two permits are separate and distinct. On the one hand, a test well is intended to be temporary in nature and used only for the purpose of test well development and collecting information regarding the height of the aquifer and water quality at the site of the proposed activity. Conversely, withdrawals for any other purpose, even incidental, must be made from the production wells, which are only authorized by the General Water Use Permit. Before a test well can be used for normal consumptive purposes, the permit holder must seek a modification of the permit to include it as a part of its general water use permit. Here, no such modification was sought by Respondent, and no authorization was given by the District. Therefore, Respondent's incidental water uses associated with its test well cannot be counted as "uses" for the purpose of complying with the use requirement in Section 373.243(4), Florida Statutes. In light of the District's credible assertion to the contrary, Respondent's contention that it is common practice to lawfully withdraw water from a test well for incidental consumptive purposes has been rejected. (It is noted, however, that the District has not charged Respondent with violating the terms of its test well permit.) Extreme Hardship Under Section 373.243, Florida Statutes (which was enacted in 1972), the District is authorized to revoke a water use permit "for nonuse of the water supply allowed by the permit for a period of 2 years." However, if the user "can prove that his or her nonuse was due to extreme hardship caused by factors beyond the user's control," revocation of the permit is not warranted. The phrase "extreme hardship caused by factors beyond the user's control" is not defined by statute or rule. In the context of this case, however, the District considers an extreme hardship to occur under two scenarios. First, if the aquifer level has dropped so low due to drought conditions that a permit holder cannot access the water through its well, its nonuse is excusable. Alternatively, if an emergency order has been issued by the District directing permit holders (including Respondent) to stop pumping due to certain conditions, an extreme hardship has occurred. (Presumably, a severe water shortage would precipitate such an order.) In this case, the District issued a water shortage advisory, but not an emergency order, due to a "severe drought," indicating that users could still pump water, but were encouraged to voluntarily reduce their usage. This advisory remained in effect from the summer of 1998 until the spring of 2003, when a severe drought ended. However, no emergency order was ever issued by the District. Respondent contends that its nonuse was due to an extreme hardship caused by factors beyond its control. More specifically, it argues that a severe drought occurred in Alachua County during the years 1998-2003, and that under these conditions, federal regulations prevented it from withdrawing water for bottling purposes, which was the primary purpose for securing a permit. Further, even if it had withdrawn water during these drought conditions, such withdrawals could have adversely impacted Hornsby Spring and constituted a violation of a District requirement that water resources not be adversely impacted. Because an investment of several hundred thousand dollars was required to drill and install the two production wells, Respondent contends it was not financially prudent to make that type of investment and begin operations until normal spring conditions returned. These contentions are discussed in greater detail below. Around September 7, 1999, a representative of a water bottling company first approached Respondent about the possibility of the two jointly operating a water bottling plant and/or transporting water in bulk from Respondent's property. Prompted by this interest, less than three weeks later Respondent filed its application for a water use permit (although at that time it did not mention on the application that off-site bulk transfers would occur), and a permit was eventually issued in February 2000. Later, and through a professional firm it employed, Respondent had discussions with representatives of several bottling companies, including Great Springs Waters of America (Great Springs) and Perrier Group of America. Apparently, these more serious discussions with a potential suitor did not take place until either late 2000 or the spring of 2001. Periodic measurements taken by District staff at Hornsby Spring reflected natural drought conditions from April 2000 to April 2003. As noted earlier, this was the product of a "severe drought" which took place between the summer of 1998 and the spring of 2003; the drought was one of a magnitude that occurs only once in every 50 to 100 years. During the years 2000 through 2002, the spring had zero flow or was barely flowing much of the time.6 Had Respondent pumped water during 20 out of the 24 months after the Permit was issued, it could have potentially violated the requirement that it not harm Hornsby Spring. This fact is acknowleged by a District witness who agreed that if the "spring is not flowing, . . . [pumping] would have an [adverse] impact." Even as late as October 2003, the spring had tannic discoloration caused by the lengthy drought conditions. The parties agree, however, that there is no water shortage in the District at the present time. To illustrate the difficulty that it experienced in obtaining a joint venture partner for water bottling purposes, Respondent established that in the spring of 2001, a Great Springs representative visited the site when the spring was "barely flowing." For obvious reasons, Respondent could not "bring a party there who would want to enter into a business [agreement]" under those conditions. These same conditions remained in effect during most of the two year period. The District points out, however, that even though the spring was low or barely flowing, so long as the aquifer itself was not too low, Respondent could still withdraw water from the aquifer, since Condition 2 of the Permit authorizes withdrawals from the aquifer, and not the spring. The reason for this apparent anomaly is that when a spring ceases to flow, the aquifer has simply dropped below the level of the spring vent; even under these circumstances, however, there may still be a substantial quantity of water in the aquifer available for pumping. Assuming that it could still lawfully pump water when the spring was dry or barely flowing without causing adverse impacts to the spring, Respondent was still subject to federal regulations which govern the bottling of spring water. See Title 21, Part 165, C.F.R. For spring water to be marketed as bottled "spring water," 21 C.F.R. § 165.119(2)(vi) requires that the water "be collected only at the spring or through a bore hole tapping the underground formation feeding the spring." This means that the bore hole had to be physically connected with the cave system feeding Hornsby Spring or produce water of the same quality as that discharging from the spring. The regulation goes on to provide that "[i]f spring water is collected with the use of an external force [such as by a pump], water must continue to flow naturally to the surface of the earth through the spring's natural orifice." While this regulation obviously does not prohibit Respondent from pumping water, since that authority lies within the District's exclusive jurisdiction, it does provide that in order to use spring water for bottling purposes, the water must continue to flow naturally from the aquifer to the spring. If it does not, the water cannot be used for this purpose. Because Hornsby Spring had zero flow for parts of 2001 and 2002, and severely reduced flows during most of the other time during the two-year period ending February 2002, Respondent was effectively prevented by the foregoing regulation from using the water for bottling purposes. Therefore, Respondent's nonuse was due to extreme hardship caused by factors beyond its control -- a severe drought lasting throughout the two-year period after the Permit was issued, and federal regulations which prevented it from using water for the purpose for which the Permit was issued. Thus, the nonuse is excusable.
The Issue The issue in this case is whether Bocilla Utilities, Inc. is entitled to a public drinking water construction permit for the expansion of an existing reverse-osmosis water plant located on Don Pedro Island.
Findings Of Fact Bocilla Utilities, Inc. (Applicant) was incorporated in the mid-1980s for the purpose of supplying water to a residential development being developed by some or all of the principals of the water utility. The residential development is on a bridgeless barrier island in Charlotte County. Applicant initially proposed locating the plant on the mainland with submerged pipes to the island. This proposal was approved by the Army Corps of Engineers and Department of Environmental Regulation, but the Trustees of the Internal Improvement Trust Fund denied Applicant's request for an easement across submerged state lands. After failing to obtain a submerged land easement, Applicant obtained the permits to build a reverse-osmosis (RO) water plant at its present location on the barrier island. Included among the permits was a permit from the Department of Natural Resources dated September 11, 1985, allowing Applicant to construct the water treatment plant, two underground concrete water storage tanks, and a tennis court on top of the tanks up to 100 feet seaward of the coastal construction control line. Applicant is a certificated utility that, since September 1994, has been regulated by the Public Service Commission. It was previously regulated by Charlotte County. By Application for a Public Drinking Water Facility Construction Permit filed January 26, 1995 (Application), Applicant requested a permit to expand the treatment capacity of its water plant from 30,000 gallons per day (gpd) to 120,000 gpd. By installing the new treatment equipment in two stages, the plant would have an immediate capacity of 60,000 gpd. Applicant proposes no material changes to the existing water storage tanks, distribution system, or the size or location of the building that houses the existing and proposed water treatment equipment. The Application form asks Applicant to identify any well construction permits obtained from the water management district and to provide a map showing any sanitary hazards within 500 feet of each proposed well. The Application form requires Applicant's professional engineer to attest that the project complies with Chapter 62-555, Florida Administrative Code. The Engineering Report attached to the completed Application supplies the requested information, but explains that Applicant's hydrogeologist had not, as of the date of the report, obtained the well-construction permits from the water management district. By Intent to Issue dated February 27, 1995, the Department of Environmental Protection (DEP) gave notice of its intent to issue the requested permit. Noting that it has permitting jurisdiction under Section 403.861(9), Florida Statutes, and that the project is not exempt, DEP determined that a public drinking water construction permit is required for the proposed work. The Intent to Issue is based on DEP's belief that reasonable assurances have been provided to indicate that the proposed project will not adversely impact water quality and the proposed project will comply with the appropriate provisions of Florida Administrative Code Rules 62-4, 62-550, 62- 555 and 62-699. Petitioners timely objected to the issuance of the proposed permit. Petitioners reside in Applicant's certificated area on the barrier island. They presently obtain their water from private wells or cisterns, rather than Applicant. If the permit were granted so as to expand Applicant's production capacity, Petitioners would be more likely required to obtain water from Applicant due to Charlotte County's mandatory hookup ordinance. About a week before filing the Application, Applicant applied on January 20, 1995, to the Southwest Florida Water Management District (SWFWMD) for permits for the construction of the two wells included in the draft permit. SWFWMD granted these permits on February 8, 1995, about three weeks after receiving the applications. Consistent with its normal practice in granting well-construction permits, SWFWMD did not provide interested persons with a point of entry to challenge the permits. The SWFWMD permits provide in part: Compliance with state and local county health regulations as per Chapter 17-555, Florida Administrative Code (F.A.C.), is required via the Drinking Water System Permit. Compliance with Chapters 17-532 and 17- 555, F.A.C., on construction standards and grouting procedures for Public Supply Wells shall be followed. * * * This well site has been judged as satisfactory based on the location and information provided to [SWFWMD] at the time of the well site inspection. . . . * * * Public Supply Wells must meet certain setback requirements from all potential sources of contamination. To obtain and retain your Drinking Water System Permit, please coordinate any future development of the surrounding property within 200' of your well site with the Charlotte County Health Department. * * * By letter dated February 14, 1995, from a SWFWMD representative to Applicant's hydrogeological consultant, SWFWMD acknowledged that it granted Applicant a setback variance of 100 feet from nearby septic systems in permitting the two new wells. The letter states that the "variance is based upon the known geohydrology of the area and the proposed construction of the wells," as well as an understanding that the "existing public system is working out with no problems." A month later, a letter from a DEP engineer identifies various types of sanitary hazards and implicitly ratifies the setback variance granted by SWFWMD. By letter dated March 14, 1995, Gary Maier identified sanitary hazards as septic tank systems, sewer lines, swimming pools and associated chemicals, pet excretions, and residential chemicals such as pesticides, fertilizers, paints, oils, and solvents. Mr. Maier's letter acknowledges that SWFWMD had granted a variance from 200 feet to 100 feet "due to geologic and treatment conditions," but cautions that "any further decrease in setbacks for sanitary hazards would be imprudent." Applicant's water plant is located on Don Pedro Island, which is part of an island chain consisting, from north to south, of Knight Island, Don Pedro Island, and, usually, Little Gasparilla Island. The low-lying island chain fronts the Gulf of Mexico on the west. The northern end of the island chain abuts Lemon Bay on the east. Over the years, storms have opened and closed passes at various points along the island chain. The island chain is vulnerable to flooding, and some areas are more vulnerable than others. One of the historic passes is Bocilla Pass. The plant site area is about a half mile south of this now-closed pass. The Gulf beaches on either side of the point at which the Bocilla Pass emptied into the Gulf have suffered considerable erosion in recent years, to the point that recently built homes have been inundated by water and had to be removed or razed. The plant site area includes the building housing the water treatment and other equipment, two 50,000-gallon storage tanks immediately to the west of the building, the existing water supply well located just east of the building, and the two proposed water supply wells located a short distance east and south of the building. The existing storage tanks, which mark the westernmost extent of the plant site area, are about 235 feet east of a pronounced erosion line along the Gulf shore and are separated from the Gulf by South Gulf Boulevard. Immediately adjacent to the tanks is the building housing the water treatment equipment. The two proposed wells would be located about 200 and 450 feet south of the tanks. The plant site area is much closer to water on the east. The southerly proposed well is about 12 feet west of the mean high water line of Bocilla Lagoon, and the northerly proposed well is about 16 feet west of the mean high water line of Bocilla Lagoon. The building housing the water treatment equipment is further away from the water, but still less than 50 feet. Bocilla Lagoon is a long and narrow waterway that was dredged in a north-south direction parallel to the Gulf shoreline. Bocilla Lagoon is closed off by land less than a quarter of a mile south of the plant site area. The lagoon runs to the north to connect to what remains of Bocilla Pass, which then runs easterly a short distance to a dredged extension of Lemon Bay. The building housing the water treatment equipment and the storage tanks are not located in the vulnerable FEMA V[elocity] zone. However, the record does not establish the location of the proposed wells relative to the V- zone. Testimony concerning the location of the V-zone relative to the water plant establishes only that the building, not the two proposed wells, are safely outside the V-zone. Nothing in the record establishes contour lines on the barrier island in the vicinity of the plant site area or the elevation of the land at the site of the two proposed wells. Applicant has recently upgraded the security of the storage tanks through the addition of locks to the manholes. The installation of fences is impractical and unnecessary because the tanks are topped by a six-inch, reinforced slab of concrete that also serves as tennis courts. The proposed wells would be well constructed. They would extend 167 feet into a confined artesian aquifer. The concrete pressurized grouting coupled with a potentiometric surface of seven feet make it unlikely that the wells would be vulnerable to contaminants. During severe-storm conditions, pumping would cease, leaving the system in its naturally pressurized state, so that surface water could not easily flow down into the well. Additionally, the RO filtration technology is one of the most effective at eliminating contaminants from drinking water. However, failing to have shown that the two proposed wells are outside the V-zone, Applicant has also failed to provide reasonable assurances that the two proposed wells would be protected from damage from the velocity wave action associated with the V-zone. Applicant has constructed and operated the water plant in an exemplary fashion. Applicant has at all times met or exceeded applicable standards for water quality, safety, and operations. Original construction exceeded minimum requirements and added to the durability of the fixtures. The building housing the water treatment equipment and hydropneumatic tank has been issued a floodproofing certificate by a registered engineer. The certificate states that, with human intervention in the form of bolting predrilled plywood boards over openings, the plant is waterproofed to an elevation of 14 feet NGVD, which is one foot higher than the FEMA-supplied base flood elevation of 13 feet NGVD. Applicant employs an operations manager with a Class A license rather than one with merely a Class C license, even though only a Class C operator is required for a water plant of this size. Also, Applicant maintains a low-level chlorine indicator, even though not required to do so due to the small size of the utility. The relevant sewage flows from the quantity of water that would be drawn by each proposed well would be greater than 2000 gpd. Near the proposed wells are single- and multi-family residences served by on-site sewage disposal systems, the above- described road, a swimming pool on the other side of the road, an injection well, and the treatment plant at which Applicant stores anti-scaling agents, ammonia, chlorine, and acid. However, Applicant has shown that none of these items is within 100 feet of the proposed wells. Bocilla Lagoon is not a sanitary hazard at this time. The two deficiencies in Applicant's proof relate solely to the susceptibility of the proposed wells to a significant risk of damage from flooding and other disasters and the location of the proposed wells relative to areas least subject to localized flooding. In all other respects, such as fire flow and security, Applicant has provided reasonable assurances that the applicable criteria would be satisfied or that the proposed work would have no bearing on the issue raised by Petitioners.
Recommendation It is RECOMMENDED that the Department of Professional Regulation enter a final order denying the application of Bocilla Utilities, Inc. for a public water supply construction permit. ENTERED on August 25, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on August 25, 1995. APPENDIX Rulings on Respondents' Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant and repetitious. 6-7 (except last sentence): adopted or adopted in substance. (last sentence): rejected as unsupported by the appropriate weight of the evidence and legal argument. (except last sentence): rejected as subordinate, recitation of testimony, and irrelevant. 8 (last sentence): adopted or adopted in substance. 9: rejected as irrelevant. 10: adopted or adopted in substance, except to extent of legal argument as to effect of action of SWFWMD in granting variance. 11-12: rejected as irrelevant. 13 (except last sentence): adopted or adopted in substance. 13 (last sentence): rejected as irrelevant. 14-17 (except last sentence): adopted or adopted in substance. 17 (last sentence): rejected as legal argument. 18-21: adopted or adopted in substance. 22: rejected as unnecessary. 23: adopted or adopted in substance as to protection from only sanitary hazards. 24-26: adopted or adopted in substance as to description of aquifer, proposed well construction, and efficiency of RO filtration process, but not as reasons in support of Paragraph 23. 27 (first sentence): adopted or adopted in substance. 27 (remainder): rejected as unnecessary. 28: adopted or adopted in substance. 29: rejected as unnecessary. 30-31: adopted or adopted in substance. 32: rejected as irrelevant. 33-40: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Robert Starr P.O. Box 5337 Grove City, FL 34224 Betty Brenneman P.O. Box 67 Placida, FL 33946 Jim Duff P.O. Box 41 Placida, FL 33946 M. Christopher Bryant Oertel Hoffman P.O. Box 6507 Tallahassee, FL 32314-6507 Thomas I. Mayton, Jr. Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2440
The Issue Whether permission should be granted to Petitioner, pursuant to Chapter 380, Florida Statutes, to develop land in Manatee County by phosphate mining operations, as set forth in the petition.
Findings Of Fact Estech General Chemicals Corporation (Estech) is a Delaware corporation. It was formerly Swift Agricultural Chemicals Corporation, but the corporate name was changed on August 1, 1979. The application was filed in the name of Swift Agricultural Chemicals Corporation, but Estech is the corporate successor to Swift's interests. (Stipulation) In 1965-66, Estech purchased approximately 10,393 acres of land in Manatee County as a potential phosphate mining site. Estech has been actively mining phosphate rock in Florida for over fifty years, and purchased the Manatee County property because large deposits of phosphate rock lie under the surface of land. Phosphate rock is a valuable mineral resource and is an ingredient in fertilizers. (Stipulation) The property is classified as a general agricultural district under the Manatee County Zoning Ordinance. Mining is authorized in such a district by "special exception" as provided in the ordinance. Additionally, Manatee County requires approval of a master mining plan for any mining operations. Such approval is granted through a two-step process. First, an applicant must obtain approval for a special exception, its master mining plan, and development of regional impact (DRI) Thereafter, the applicant must obtain an operating permit in the manner described in the zoning ordinance. Prior to granting a special exception, the County Planning Commission and Board of County Commissioners (Board) must find that the proposed use will be reasonably compatible with surrounding uses, and that any nuisance or hazardous feature involved is suitably separated and buffered from adjacent uses. The ordinance specifies detailed information to be contained in applications for exceptions, including a conceptual reclamation plan, reclamation bond, and evidence of financial responsibility after master plan approval and prior to issuance of any operating permit. It further provides for regular inspection of constructed facilities, reports, and compliance by the applicant with regulations as to matters such as dam construction, water withdrawals, water quality, and the like. Manatee County does not yet have a finally approved land use plan under the Comprehensive Planning Act of 1975, but a draft thereof is now pending before the Board. (Stipulation, testimony of Rile, Exhibit 20) In the past, Manatee County has granted other applications of special exceptions, DRI development orders and master mining plan approval for mining phosphate rock, subject to conditions and limitations, as follow; On January 28, 1974, the Board granted approval to Beker Phosphate Company for phosphate mining on approximately 10, 970 acres of land adjacent to Estech's southern and western borders. On December 27, 1977, the Board granted approval to W. R. Grace and Company for phosphate mining on approximately 5,050 acres of land adjacent to Estech's northern and eastern borders. By approving these applications, the Board has authorized phosphate mining by W. R. Grace and Beker on large tracts of land adjacent to Estech's property, subject to conditions and limitations. Additionally, on July 7, 1976, the Board granted approval to Phillips Petroleum Company for phosphate mining on approximately 6500 acres of land in southeastern Manatee County. On September 14, 1978, the approval was rescinded by an amended development order pending the submission of additional evidence and testimony at a new hearing. None of the above mining developments are currently conducting mining operations. (Stipulation) On August 3, 1977, before the approval of the W. R. Grace and Company mine, Estech filed an application with the Southwest Florida cater Management District for a consumptive use permit authorizing the use of water for mining operations. On September 6, 1978, the consumptive use permit was issued pursuant to Order No. 78-75 of the District Governing Board. (Stipulation, Exhibit 1) On May 5, 1978, Estech filed an application for special exception with Manatee County. A master mining plan and all required documents were also filed with the application. Review of the application was made by the staff of the County Planning Department which recommended development approval subject to certain conditions. (Stipulation, Exhibit 3, 6) On May 9, 1978, Estech filed a DRI application with the Tampa Day Regional Planning Council (TBRPC) and with Manatee County. On November 13, 1978, the governing board of the TBRPC held a public hearing to consider Estech's application for DRI approval. At the close of the hearing, the governing board of the TBRPC adopted the report recommending approval of Estech's application subject to conditions. (Stipulation, Exhibit 4-5, 6) On January 10 and 11, 1979, a public hearing was held jointly by the Board and the County Planning Commission on the various applications. The parties to the hearing were Estech, Manatee County, and Sarasota County who entered the proceeding as an intervenor. Also represented were Manatee County Planning and Development Board and the TBRPC. Notice of the hearing was provided to the public and the Department of Community Affairs (DCA). On February 22, 1979, the Manatee County Planning Commission unanimously adopted a Recommended Development Order recommending that the Board approve the development of regional impact, the master mining plan and special exception with conditions. (Stipulation, Exhibits 1-10) On August 9, 1979, the Board approved a motion denying the Estech special exception, and on August 16, the Board adopted a resolution denying the special exception, master mining and reclamation plan, and the application for development approval The stated reasons for denial cited the Nanatee County Zoning Ordinance and stated that (a) "the use contemplated by the development is not reasonably compatible with surrounding uses," and (b) "nuisances or hazardous features are involved in the development and same are not suitably separated and buffed from adjacent uses." The Board therefore determined, pursuant to Section 380.06(11), F.S., that: The development is not located in an area of critical state concern. The State of Florida has not adopted a land development plan applicable to this area. The development is not consistent with local land development regulations. The report and recommendations of the Tampa Bay Regional Planning Council on file in these proceedings recommended approval of the development subject to stated modifications and conditions and the development as described in the application and the presentations made in these proceedings is not consistent with the report and recommendations of said regional planning agency." (Stipulation, Hearing Officer's Exhibit 3) Estech presently operates the Watson and Silver City Mines in southwestern Polk County. The proposed project is to replace depletion of reserves in the 1980's from those mines. The lad in question is located in northeastern Manatee County in a rural agricultural area. Most of the acreage is now being utilized as grazing land for cattle. Approximately 78 percent of the total area is unimproved due to the low productivity of the soils. Most of the tract lies in the watershed of the Manatee River and is bisected by the river's north and east forks. The topography of the land is relatively flat, with over 5,000 acres of native range that was once long-leaf pine flatwoods. However, logging, grazing, and other influences have all but eliminated the pine over-story and impacted adversely on the under-story. The land has been over- grazed, reducing the extent of native forage species while encouraging the growth of wire grass and saw palmetto. About 18 percent of the tract is composed of various types of wetlands, such as swamp forest, marsh and grassy ponds, and an 18 acre cypress dome. The north and east forks of the Manatee River join about four miles southwest of the site, and drain into Lake Manatee approximately eight to ten miles downstream. Lake Manatee drains into the Manatee River and ultimately into the Gulf of Mexico. Lake Manatee is the primary potable water supply serving the majority of the population in Manatee County and a significant portion of Sarasota County. An earthen dam is located at the lake, and the Manatee County water treatment plant is also at that location. (Testimony of Cornwell, Zimmerman, Lincer, Exhibits 4, 6, 12, 39) The mining operation is planned to produce approximately three million tons of phosphate annually for a period of twenty-one years. About 6600 acres of the site are deemed mineable. Estech proposes to use equipment and design generally available and practiced by presently operating mines. The major components of operation are large walking draglines, hydrologic ore transportation via pipeline to a central washer, a feed preparation and flotation plant, wet rock storage and drying, and shipment via rail. Clay and sand wastes will be disposed of initially in separate areas, with subsequent mixing as backfill in reclamation. Two rock dryers are proposed for the facility to reduce moisture in the phosphate rock. A single 480 acre above- ground clay settling area is planned to receive clay wastes during the initial period of operation. The intended waste disposal plan will utilize a sand-clay mix which will be deposited in mining cuts. Water use is designed to divide the needed supply for operations between surface and ground water resources, and to provide for recharge of the Floridan Aquifer. A 200 acre surface water reservoir will be constructed for storage which will decrease ground water use. Reclamation will be accomplished by restructuring and filling of disturbed sites followed by revegetation. The end result is designed to provide improved pasture, marsh and wetland areas, a number of lakes, and a wilderness area. (Exhibits 4, 13, 11) a. In 1978, the Environmental Protection Agency evaluated various impacts of phosphate mining in central Florida, and made recommendations concerning methods of operations by the phosphate industry to minimize and mitigate any adverse impacts upon the region (Areawide EIS) . It was prepared to establish a basis for initiating site-specific environmental impact statements for new source mining in connection with issuance of national pollutant discharge elimination systems (NPDES) permits under the Federal Water Pollution Control Act (PL 92-500). Incident to Petitioner's application for such a permit, a draft environmental statement (Draft EIS) was issued on October 5, 1979. It had primarily been prepared by a third party contractual consultant, Conservation Consultants, Inc., upon the recommendation of Petitioner to the EPA. The consulting firm had previously done consulting work for Petitioner. However, no evidence was presented that the assessments accepted by the EPA in its provisional adoption of the studios contained in the Draft EIS were not impartial. Many of the evaluations of the proposed project which were the subject of testimony by Petitioner's witnesses were based in part upon studies and data contained in the Draft EIS. However, testimony by the individuals who had prepared such data was not presented at the hearing. The Draft EIS document was provisionally received in evidence. It is hereby determined that the document, although not authenticated as provided by Section 90.902(4), Florida Statutes, qualifies as an exception to the hearsay rule under Section 90.803(8) as a public record, and is received under Section 120.58(1)(a), Florida Statutes, as "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." The data compilations contained therein are considered prima facie correct, subject to challenge. Conclusions set forth therein, of course, are not factual matters, and merely are of some persuasive value. b. The Draft EIS for the Estech project made comparisons to the Area- wide EIS recommendations, and found that Estech's proposal deviated from the Area-wide EIS recommendations in two significant areas, i.e., construction of a rock drying facility and mining of a segment of the east fork of the Manatee River. The Draft EIS concluded that the proposed drying facility could be justified for various reasons and proposed to approve that portion of the project. However, the document agreed with the Area-wide EIS that mining should not be conducted in the east fork of the river. The EPA therefore proposed to issue the NPDES permit conditioned upon compliance by Estech with all recommendations contained in the Area-wide EIS except the one related to rock dryers. Based upon the EPA recommendation, Estech has acknowledged that it will not pursue its original intent to mine in the east fork. (Testimony of Davis, Exhibits 8, 11, 47) WATER HYDROLOGY a. The consumptive use permit issued to Petitioner by the Southwest Florida Water Management District (SWFWMD) on September 6, 1978, pursuant to Chapter 373, Florida Statutes, authorizes the average annual withdrawal of 12,960,000 gallons of water per day (gpd) for the purpose of mining and beneficiating approximately 3 million tons per year of phosphate rock. During the first three years after commencing mining operations, water withdrawal is to be from the Floridan Aquifer by means of four production wells and five standby production wells. Thereafter, Estech will divert from the east fork of the Manatee River as will fill or attempt to fill the storage basin to capacity, while maintaining minimal flows downstream. The permit requires Estech to construct a system of connector wells to recharge 3,024,000 gpd (average annual) from the unconfined surficial aquifer and/or secondary artesian aquifer to the Floridan Aquifer prior to the start of withdrawals. Other conditions attached to the permit require water quality analysis of water moving through the system of connector wells, monitoring welts, rainfall recording equipment, pumping tests, and consent from nearby property owners prior to dewatering of mining pits within 700 feet of the property, unless the water table will not be lowered more than three feet. Estech is also required, commencing with the fourth year of mining, and subject to availability of specified quantities of surface water, to (a) limit its ground water withdrawals so as not to lower the potentiometric surface of the aquifer more than five feet at its boundary, and (b) to limit its average annual net ground water withdrawals to 7 million gallons of water per day. SWFWMD found that issuance of the permit for the stated quantities of water will be of reasonable beneficial use as defined in Sections 373.019(5), F.S., consistent with the public interest, and will not interfere with any existing legal use of water. SWFWMD further reserves from use of water by Estech in such locations and quantities as it determines may be required for the protection of fish, wildlife, and the public health and safety. b. Estech has agreed that (a) to promote the maintenance of the 25- year flood plains, water stress caused by pit dewatering shall be limited to only one side of the flood plain at a time, and mining of the opposite side will be delayed until mined portions have been re-created to design elevations, when feasible, and ground water levels have recovered; (b) to construct surface recharge ditches as necessary to minimize ground water table stress adjacent to the flood plains; (c) to cause no disturbance or incompatible land use activity within any such flood plain except where unavoidable; (d) to insure no land use activity which would inhibit native vegetative growth for the flood plain during the mining period, and (e) to conduct a post-reclamation study as to final frequency elevations for the information of governmental agencies. If it is found that peak flows of any drainage basins have been increased over premining conditions, Estech will increase the retention capacity of the recreated land appropriately. After mining is completed, the storage reservoir and control structures will be dedicated by Estech to Manatee County if the county governing body deems the reservoir necessary to the operation of the Manatee County utility system. (Testimony of Davis, Exhibit 6,7,26,47, Stipulation) During normal mining operations, Estech's withdrawal of surface water under its consumptive use permit will reduce the flow into Lake Manatee by about 7.5 millions gallons per day (mgd) . The average annual flow of water into Lake Manatee is about 75 mgd. The Manatee County 4 Water Treatment Plant currently uses 25 mgd. During drought conditions, SWFWMD reserves the right to restrict withdrawals under the consumptive use permit. A "safe reservoir yield" means the available amount of water during the most severe drought conditions. The effect of Estech's withdrawals will reduce the Lake Manatee safe reservoir yield of 29 mgd by .75 million mgd. If the three proposed phosphate mines in the area, i.e., Estech, W. R. Grace, and Beker Phosphate Company, operate simultaneously in the future, it will reduce the flow into Lake Manatee by approximately 9.3 millions gallons per day. Estech's withdrawals of water will impact on the Lake Manatee reservoir only during periods of extreme drought at which time SWFWMD can declare a water shortage and direct cessation or restriction of withdrawals. (Testimony of Wissa, Zimmerman, Exhibit 7) WATER QUALITY a. Surface water quality on the Estech property is generally moderate to poor. It is highly enriched in nutrients, and moderate to poor in terms of color and dissolved oxygen. It is low in dissolved solids and slightly acidic. It had moderate levels of nitrogen, and high levels of iron and fluoride. Most streams on the property have soft water and meet most Class III standards. Water quality is considered "mediocre" from an ecological standpoint due to the low levels of dissolved oxygen. The water in Lake Manatee is similar to that found in the streams on the Estech property. It generally falls into Class IA standards for a potable water supply. The Manatee Water Treatment Plant removes the high color from the water during the process. Approximately 1.43 mgd of water will be discharged into the streams as a result of Estech's mining operations. This amount will constitute approximately one to three percent of the total amount of water flowing into Lake Manatee. Based on data from studies made of other milling operations conducted by Estech, mining discharges should not produce a significant change in the water quality of Lake Manatee. Although there will be an increase in dissolved solids and phosphorus, nitrogen will be decreased. Alkalinity will increase somewhat and this is considered to be beneficial to the Lake Manatee water supply since alkalinity levels in the lake currently are at times below recommended governmental criteria for drinking water. Use of flocculents in Estech's proposed sand-clay process will not adversely affect Lake Manatee water quality because the polymer substance will adsorb onto clay particles and other suspended matter. Polymers degrade over a period of time and the nitrogen in the polymer will not be available for plant growth in the lake. Although higher dissolved solids will cause an increase in hardness of the lake water, it will assist in removing the high color from the water during the treatment process. However, there will be some increase in treatment costs. In the opinion of water quality experts, the effluent discharged from Estech's property will be within the Federal NPDES standards and the state Class III water quality standards. There will be no cumulative impact by other mining operations in the area because Estech will be the only mine to discharge in the Manatee River or its tributaries. Surface water runoff from the site will not be significantly different than it is now, and it will be subject to applicable permit limitations. Deposits of clay in the initial settling area will form a relatively impervious liner and prevent leaching pollutants into ground water. Similar effects will result in the mined out pits which are reclaimed with the proposed sand-clay mixture. The flocculents used in this process will adhere to the clay particles, thus preventing entry into the ground water system. Monitoring of ground water quality will be required by applicable permits. (Testimony of Brezonik, Davis, Bromwell, Lincer, Zimmerman, Exhibits 4, 7, 11, 26-29, 31-34, 48, 57, supplemented by Exhibits 30, 35, 45) RADIATION a. The uranium and radium concentrations in overburden materials at the Estech site are slightly lower than those typically observed in central Florida. The depth of overburden at the site is double that normally found in the central Florida area. The phosphate ore matrix at the site contains about half the radioactivity found in the central Florida matrix. Four samples taken at the site show no evidence of a "leach" zone over the matrix, thus indicating that total radioactivity concentrations in reclaimed areas will be lower at the Estech site than has been experienced in other central Florida phosphate areas. Although ground radiation increases after reclamation, since most of the land area of Florida has extremely low levels of radioactivity in the soil compared to other areas in the nation, the increases in soil radium concentration in reclaimed areas at the site will bring the total gamma ray exposure rate up to approximately the average for the nation, and therefore is not significant in terms of human health. A higher radium concentration is expected in the initial clay settling area which will increase the surface exposure rate by approximately one-half of the rate in other reclaimed areas. Airborne radioactive particulate emissions from the site will consist of dust released from the rock dryers and "fugitive" dust caused by vehicular traffic and other disturbances of surface soil. Both are calculated to produce approximately the same amount of radiation exposure. The projected emissions from the rock dryers will produce a maximum dose of 5.8 millirems per year at the site boundary, as compared to the EPA standard for human health of 1500 millirems per year. The increase in exposure from both sources therefore is relatively insignificant from a human health standpoint. The radium 226 that would be added to surface soils by deposition from rock dryer emissions during the contemplated 21 years of mining activities' will increase the soil radioactivity concentration around the site from about 50 percent to less than 51 percent of the typical soils in the nation, and therefore such change would not be statistically measurable or significant. Existing concentrations of radium in surface waters at the Estech site are within the normal range of surface waters elsewhere in the nation. Mining activities will not cause any appreciable difference in radium concentrations in ground or surface waters. Although radium 226 concentrations in surface waters off-site may be elevated to some degree after reclamation, the final concentration will be much less than the EPA drinking water standard of 5 pico curies per liter. Radium concentrations in the soil of reclaimed lands will be in a normal range and not significantly different from those existing prior to mining operations. Therefore, such concentrations in food products grown in the soil and meat produced from animals who graze in the area, or in byproducts such as milk, will not be increased. Such concentrations could decrease because plants discriminate against the uptake of radium if sufficient calcium is available, as will be the case in areas reclaimed with the sand-clay mixture. Concentrations of radium in the initial clay settling area will be considerably larger than that of the other reclaimed areas and therefore will show similar increases in food products in that area. However, the concentrations should not exceed the EPA standard of 5 pico curies of radium per liter. Therefore, food products grown on the site after reclamation will present no significant radiological changes from normal dietary contributions. A preliminary study conducted in lakes located on reclaimed phosphate mining land in Polk County produced preliminary data to show that the accumulation of radiation in fish at those locations is greater than that found in fish at Lake Manatee. However, as heretofore found, the ore matrix at the Estech site contains only about half the radioactivity found in the matrix in other phosphate areas of Central Florida. Most likely, the amount of radiation found in fish in Lake Manatee will approximate the amount for fish in future lakes on the Estech site because phosphatic clays were removed to construct the lake dam and matrix is exposed at the lake bottom. The radioactivity levels found in the Lake Manatee fish are relatively low, and since radiation is concentrated in the bones which are seldom consumed, there would be no significant adverse health impacts to humans who ate fish from reclaimed lakes at Estech's site. Radioactive materials are absorbed to any clay particles which might be discharged during mining operations and normally are not "stripped" from such particles until it reaches a salt water body. The normal water treatment process used at the Manatee County Water Treatment Plant would remove most of such clays from the water and thus dilute any residual radioactivity concentrations. The reclaimed lands will have different radiological characteristics than the land before mining. These primarily are elevation of possible radiation exposure in any future residential structures and uptake of radionuclides into agricultural products. Some 68 percent of the land is expected to be improved pasture and a small amount will be used for citrus and row crops after the cessation of mining activities. The abundance of clay in the surface soil will produce a "discrimination" against uptake of radium by crops. The return or replacement of low activity top soil to reclaimed areas would substantially reduce potential radiation impacts. Estech does not plan to replace soil over reclaimed areas except on those where excessive radiation is found to be present. There is no state regulatory requirement for replacement of top soil in such areas at the present time. The final clay settling areas when returned to any land use will be most beneficially affected by returned top soil from the standpoint of residual radiation. However the return of top soil to all areas would present an excessively high cost-benefit ratio in general due to the relatively low degree of matrix radioactivity. In addition, since the advisability of replacement of top soil would depend on site specific data, in some instances return of the original soil could increase the uptake of radium in crops and make little or no difference in other radioactivity areas such as radon exposure in homes. Radon-222 flux from the soil surface will be increased due to the redistribution of radium-226 in the reclaimed lands. The elevation of outdoor airborne radon-226 will not be significant. Radon exposure consists of gas emerging from ground which contains radium during the process of radium decay. No problem is ordinarily presented unless such gas is in a confined area, such as migration to a poorly ventilated house. If inhaled, it can irradiate the bronchial lining and lead to possible health problems such as lung cancer. The only area at the Estech site where it is expected that radon levels will exceed EPA standards is the initial clay settling area. Accordingly, residential development should not be conducted on that reclaimed area after termination of mining activity. This area is presently planned to be used only for pasture purposes, and it is unlikely that it would ever be suitable for housing purposes due to lack of support of the residual ground structure. (Testimony of Morton (Exhibit 1), Shiager, Bromwell, Upchurch, Livingston, Gamble, Exhibits 4, 7, 11, 49, 52-53) Estech has agreed to establish an air monitoring program, to include monitoring for all sources of radiation associated with any of its emissions, including levels of radium 226. It also has agreed to provide a detailed radiological analysis of the reclaimed land to the Manatee County Health Department upon completion of reclamation. If an area has unacceptable radiation levels, Estech agrees to cover the area with lower value materials such as may be found in over-burden or sand tailings and clay by-products. (Testimony of Davis, Exhibit 47) AIR QUALITY a. Air quality considerations include emissions from Estech's proposed rock dryers and fugitive dust. The proposed dryer system consists of two fluidized bed rock dryers for drying phosphate rock, pebble and concentrate product, using number 6 fuel oil limited to one percent sulphur content. Control devices will consist of two wet venturiadsorber scrubber systems designed to remove 99.8 percent of particulate matter and 96.5 percent of sulphur dioxide from stack emissions. b. Computer "modeling", using conservative assumptions, predicts that emissions from the rock dryer pollution control systems will be in compliance with local, state, and federal regulations, as well as meet the requirement of a Best Available Control Technology (BACT) determination, and all other applicable air pollution regulations, including prevention of significant deterioration (psd) . On May 19, 1980, the Department of Environmental Regulation issued a construction permit for the two rock dryers to Estech pursuant to Chapter 403, Florida Statutes, and therein determined the proposed system was Best Available Control Technology. Conditions to the permit require that emissions tests be conducted for determination of compliance with applicable state air quality rules prior to application for an operating permit. (Testimony of Sholtes, Exhibits 1, 4, 7, 14, 43, 55) Computer modeling of fugitive emissions at the site created by road traffic and the like would result in approximately the same impact as emissions from the rock dryers. Cumulative emissions from existing and potential air pollution sources, including consideration of eight possible future rock dryers in the vicinity of Manatee County shows that there would be a very minor impact on the Manatee County area from an air quality standpoint. (Testimony of Sholtes, Exhibit 43) The 1978 EPA Area-wide Environmental Impact Statement for the Central Florida Phosphate Industry recommended that rock drying processing at beneficiation plants be eliminated and that wet rock be transported to chemical plants. The recommendation was based on consideration of greater allowable source emission rates than are now permitted by federal regulations. The EPA Draft Environmental Impact Statement prepared in connection with the Estech project pointed out this distinction, and concluded that the objective of the Area-wide EIS to protect air quality would be attained by the current system of air quality controls. The Draft EIS also found that use of the proposed rock dryers was dictated by market conditions which required the shipment of dry rock to chemical plants at other locations. Although Estech has an existing rock dryer at its Silver City Mine in Polk County, the facility there is older, less fuel efficient and does not meet current control criteria required of new facilities. Estech has reduced the originally contemplated amount of phosphate rock to be dried at the proposed facility from 3 million tons to 2,350,000 tons per year, due to the fact that it can now sell wet rock to various purchasers. (Testimony of Cape, Davis, Exhibits 8, 11) Although Sarasota County has concerns about the possible unavailability of one percent sulphur fuel in the future, Estech is limited to that sulphur content by DER permit conditions, as well as by Manatee County ordinance. (Testimony of Klier, Sholtes, Exhibits 55, 57) The quality of air in Manatee and Sarasota Counties currently is relatively good. The older, retired individuals who reside in Sarasota County greatly exceed the national average of that age category, with a much higher incidence of cancer and respiratory disease. Current governmental criteria for air quality greatly exceed present Sarasota County levels and do not measure certain pollutants such as fugitive dust and radionuclides. Radionuclides emitted as a result of phosphate mining recently have been added to the list of hazardous air pollutants under the Federal Clean Air Act. However, Federal Regulations have not been issued to establish standards for such emissions. (Testimony of Klier, Exhibits 44, 57) WASTE DISPOSAL a. The beneficiation of the phosphate ore will generate two solid waste products consisting of clay or "slimes" and sand "tailings." Traditionally, the two waste materials have been transported to separate disposal areas; i.e., clays have been impounded behind earthen dams constructed around natural ground or mined out areas, and sand tailings have been disposed of in mined out pits or, in some cases, in above-ground piles. Estech plans to use a somewhat new waste disposal technique by placing a sand-clay mixture in mined-out pits. In order to achieve a proper mixture, the clays will be treated with chemical flocculants to enhance their settling rate. The method will mix the sand and clay in the approximate ratio of 2.5 to 1 by weight and will be placed in waste disposal areas enclosed by earthen levees or dikes averaging fourteen feet in height. The enclosed areas will be filled to an average height of nine feet above natural grade, thereby leaving a free-board of five feet to the top of the dike. It is necessary to fill above ground to some extent to allow for subsidence of the material as it dewaters and consolidates. This system is designed to enhance water recovery efficiency and provide reclaimed land with a better agricultural potential at an earlier date than would normally be the case. Over 5,000 acres are planned for sand-clay disposal, all but 200 acres of which will be in mined-out areas Since no mined out area is available initially, an earthen dam will be constructed on unmined ground covering approximately 480 acres as an initial clay settling area. The dam structure is proposed to be about 200 feet wide and thirty feet high with a circumference of approximately four miles. In the past, the practice of disposing of clay wastes in above- ground areas raised the distinct possibility of potential dam failure with consequent release of the clay slimes. Prior to 1972, a large number of earthen phosphate dams in Florida failed due to inadequate design or construction. Following several serious dam failures in Florida, including the Cities Service Dam on the Peace River in 1971, minimum requirements for construction of such earthen dams were promulgated in Chapter 17-9, Florida Administrative Code. Since that time, no earthen dam constructed in Florida according to the regulatory requirements has failed. The state regulations require extensive engineering, design and monitoring to minimize the risk of dam failure. The design for the proposed Estech dam is based on extensive field investigation of soil conditions, and geological and hydrological analysis of the site. Soil borings show that there would be an adequate foundation for the dam and that "sinkholes" do not exist in the area. Soil for construction of the dam will be obtained in the immediate site area. The materials used in constructing the facility will be "zoned" in a manner designed to control seepage. Other seepage control devices will include internal gravel drains surrounding a collection pipe to lower the line of seepage through the dam and to prevent seepage from breaking out on the downstream slope. There will be three decant structures whose outlets discharge into a return water ditch along three sides of the embankment, with a surface drainage ditch on the other side to collect runoff. Although a layer of hardpan sub-soil is discontinuous and only extends for about 60 to 70 percent of the site circumference, such discontinuity is not considered critical due to other protections incorporated into the design of the structure. As the waste clay is deposited into the settling area, it will begin to consolidate with consequent decrease of permeability and form a sealer or liner along the bottom of the settling area, thus reducing the possibility of a "piping" failure through circular seepage. The possibility of dam failure due to "over-topping" by reason of excessive rainfall or wind and wave action occasioned during hurricane conditions is extremely remote. Dam design provides for a five foot freeboard which can be increased during a major storm by reducing the water level through spillway structures. Wooden booms anchored along the shoreline and vegetative growth will reduce wave action to some extent. During normal mining operations, there will be only about two feet of water over the clays in the settling area, and maximum height of storm waves would not exceed two feet. During the critical initial period, when a maximum of some twenty feet of water would be in the settling area, there would remain ten feet of freeboard to reduce the possibility of over-topping. The proposed Estech dam was "over-designed" to exceed the requirements of Chapter 17-9. Conservative assumptions were made that only water would be in the settling area, and that no hardpan would be present at the site, or clay in the settling area to seal the foundation. Expert testimony established that the dam design exceeds the requirements of state regulations and that the probability of a dam failure is extremely low because the design engineers addressed the most common causes of dam failures, which include over- topping, piping, sinkholes, slope failure, and earthquakes. The evidence shows that there is little likelihood of failure due to any of those causes. This finding is based not only on the fact that the dam design meets or exceeds the specifications of Chapter 17-9 as to methods of construction and inspection prior and subsequent to operation, but also because of Estech's commitment to "proof test" the strength of the dam with clear water prior to the deposition of clay wastes to monitor piezometric levels within the dam and otherwise determine if any potential problems exist during the critical initial period of operation. Although state regulations require that a registered engineer inspect each active dam annually, Estech will insure that inspection by the design engineer will be made on a monthly basis during the first year of active operations, together with inspection by company trained personnel at least three times a day during that period. (Testimony of Wissa, Dromwell, Halter, Exhibit 1, 3, 7, 11, 17, 21-24, 36-37, 59-61, 63) Due to the fact that the Estech dam will be located in the Manatee River watershed, there would be a serious adverse impact upon the Lake Manatee reservoir in the event of dam failure at a time when the clay settling area primarily contains waste clays. The most dangerous period is during initial filling operations and, since Estech will "proof test" the dam with clear water initially, a failure at that state would be relatively minor since the higher color and suspended solids contained in the discharge would be greatly diluted. However, if a failure occurred at a time the dam contained primarily waste clays, the reservoir capacity and safe reservoir yield of Lake Manatee would be substantially reduced, and the levels of suspended solids in the reservoir would be greatly increased. Approximately six to eight thousand acre feet of clay "slimes" in excess of a billion gallons would be deposited in the reservoir by a dam failure. Although the slimes would most probably-not reach the Lake Manatee dam, if an excessive amount of suspended solids reached the dam intake structure, it could well result in a cessation of water treatment plant operation for a period of seven to ten days. The clay wastes reaching the lake would coat the shoreline and therefore cause erosion and re-suspension by wave action and rain. It would be a chronic problem for the water treatment plant and require considerable additional expenditure of funds. Such a long-term problem would require time-consuming and expensive redesign of the plant with reduced output of drinking water during that period. The release of dilute clay as a result of a dam failure would cause initial turbidity of stream waters resulting in near total mortality of all aquatic animal life. However, nearly full recovery should occur in several years. Turbidities would decrease as the clay settled into the depths of Lake Manatee, but chronic turbidity would continue for months or years. Much of the non-woody vegetation in the upper Manatee River areas would be killed directly or coated with clay residues, but this loss would have no long-term significance. Trees and woody shrubs probably would not be significantly impacted, but would be stressed. Clays would be retained in the lake on a long-term basis unless removed by dredging at great expense. An initial severe impact to the fish population of the lake would be temporary, but fishing would not return to prespill levels. The recreational use of the lake would be impaired significantly and its ecological character would be altered for many years. Dam failure would not significantly affect the radioactivity concentrations in Lake Manatee or cause the water in the lake to violate the EPA drinking water standard for radium, since most of the radioactive materials would adhere to the clays which are subject to removal by the water treatment process. (Testimony of Wissa, Brezonik, Bromwoll, Cornwell, Shiager, Fishkind, Upchurch, Lincer, Zimmerman, Balter, Exhibits 11, 25, 38-39, 57) a. In view of concerns raised about the possibility of a dam failure, Estech considered several alternatives to an above-ground initial clay settling area. The cost of constructing the proposed above-ground impoundment is approximately 3.6 million dollars. If a below-grade settling area were to be constructed, it would eliminate the possibility of release of clay wastes. However, the clays in a below-grade area would not consolidate as easily as in a conventional settling area, and thus reclamation would be delayed for a longer period. The cost of constructing a below-grade settling pond would be almost thirty million dollars. The construction of a double dam around the initial settling area would cost over fifteen million dollars and preclude the mining of some 640,000 tons of phosphate ore with an inground value of nearly one million dollars. The second dam also would be subject to the same possibility of failure as the initial dam. The final alternative considered by Estech was one which would use a sand-clay mixture in the above-ground settling area rather than clay wastes only. If a dam failure occurred with such a mixture in the settling area, the impacts on Lake Manatee would be reduced considerably because the thicker sand- clay mixture would not reach the lake. Although turbid water would reach Lake Manatee in the initial surge, with consequent higher suspended solids, there would be no great impact on the ability of the water treatment plant to provide finished drinking water, although the cost of treatment would be somewhat higher. Release of the sand-clay mix would have only a negligible impact on Lake Manatee, but a major impact would result in the upper reach of the north fork of the Manatee River. The mixture would move into the north fork and proceed down stream until reaching the east fork tributary. Most vegetation, including trees, would be killed or severely stressed in the upper reach. Much of the sand-clay would be colonized by upland vegetation, but erosion and sedimentation would be slow and continue until a new channel and associated flood plain developed over a long period of time. A sand-clay mix in the initial settling area would permit more rapid reclamation, but it is necessary to use chemical flocculants in order to assist in achieving a satisfactory mix of materials. The cost of flocculents constitute the significant additional costs of some seven million dollars more than the proposed plan of constructing an above-grade settling area filled with dilute clays. A consulting engineer employed by Estech is of the opinion that the additional margin of safety by utilizing the sand-clay mixture justifies the additional expenditure, but Estech's design engineers and management personnel are of the opinion that the remote possibility of dam failure does not justify the additional cost. (Testimony of Wissa, Fishkind, Bromwell, Cornwell, Davis, Cape, Exhibits 7, 18-19, 39) OTHER ENVIRONMENTAL CONSIDERATIONS AND RECLAMATION PLAN a. About 72 percent of the 10,394 acre mine site will be "disturbed" during the course of mining operations. An average of 325 acres per year will be mined during the 21 years of mining. Some 690 acres will be used for the plant site, the initial clay settling area, and other support functions. About 11 to 13 percent of the property will be disrupted yearly. Each mining area will require about six years to complete land clearing, mining, and reclamation. Some 5700 acres of native range which once were pine flatwoods will be replaced primarily with improved pasture during reclamation. About 830 acres of this area will not be mined, but will be planted with pine seedlings to recreate a pine flatwoods condition. Twenty-three acres of sand-pine scrub will be mined and reclaimed to agriculture, but a 50 acre parcel will be preserved. Over 400 acres of xeric oak will be mined, but some 90 acres will be preserved. There will be an additional 58 acres of mixed forest land along established drainage swales in the reclaimed pastureland which should encourage wildlife movement and preservation. The only existing cypress swamp covers 18 acres and will be preserved. About 384 acres of lakes will be created with littoral zone wetlands along their edge as a result of mining operations and reclamation. No lakes are presently located on the Estech site. The reclamation plan provides for the most important and sensitive wetland areas on the site to be preserved, and it is planned to create a 100- acre wilderness area near the cypress head. The Estech property includes 1837 acres of wetlands which comprise about 18 percent of the site. These include 1219 acres of swamp forest, 600 acres of marsh ponds, and the 18 acre cypress dome. Mining will temporarily remove one third of the swamp forest and about 60 percent of the marshes. About 1064 acres (58 percent) will not be mined, and 1046 acres will be restored. The reclamation plan will result in an overall 15 percent increase in wetland acreage over pre-mining conditions. Disruption of these areas is limited as to types of wetlands as recommended in the EPA Area- wide EIS. Under this system, the most ecologically sensitive "Category I" wetlands must be preserved. "Category II" wetlands are those which may be mined if an adequate restoration program is proposed. This is the acreage for which Estech has prepared its restoration program. "Category III" wetlands, of which only 174 acres are located on the Estech site, do not require protection. Although Estech's proposed restoration of riverine hardwood swamps involves a new concept of phosphate mining reclamation, the reclamation plan and commitment by Estech includes provision for demonstration of its ability to successfully recreate those areas prior to mining. If the pilot project or actual re- creation of the hardwood swamps during a five-year project period is unsuccessful, these areas will not be mined. Present wildlife use of the rangeland at the Estech site is low due to activities such as heavy grazing and hunting. Although there will be migration of wildlife species during mining activities, the sequential pattern of mining and reclamation should provide sufficient opportunity for wildlife to relocate as suitable habitat becomes available. The proposed preservation of wetlands and creation of more wooded areas, marshes and lakes should result in potential positive long-term effects on many of the species in the area. Two threatened wildlife species that could be adversely impacted by the mining operations are the American alligator and eastern indigo snake. Although the alligator will decline somewhat during such operations, it is expected to increase above present levels with the addition of the lakes and increase in other wetlands when reclamation is completed. The eastern indigo snake will decline in numbers with the destruction of swamps and upland habitat, but should reach their former numbers after. reclamation. The United States Fish and Wildlife Service has recommended that efforts be made by Estech to have indigo snakes recovered from the work area for relocation. Estech will utilize double-walled pipelines with frequent inspections and mechanical safeguards to limit any damage that might occur in the event of a pipeline break in wetland areas. In addition, it will take numerous precautions concerning dragline crossings of wetland areas to prevent excessive damage and to restore such sites. As heretofore found, Estech does not plan to replace the topsoil in the majority of the reclaimed areas. It considers that a sand-clay mixture for reclamation will result in increase of soil productivity without the necessity of replacing the former topsoil. Replacement would be extremely expensive and would be of dubious value in view of the low quality of topsoil at the mine site. The reclaimed soils will be equal acid in many cases superior to the native soils in terms of fertility, moisture holding capacity, and nutrient retention, although they will have an initially poor structure in the top layer due to the absence of organic matter and soil biota. However, forage plantings on the improved pastures will encourage the development of such organic matter and, as it accumulates, natural vegetation will develop upon the sand-clay soils. Organic topsoil from wetlands will be placed in those areas when restored, as found necessary. Soil organisms perform useful functions that facilitate nutrient uptake and are important in any natural system. Most of such biota are lost during mining. However, barren soils are often colonized by invaders from adjacent undisturbed areas. Mycorrhizae and other beneficial organisms can be introduced through vectors, air, and from preserved wetlands. In addition, transplanting of trees and direct innoculation may accelerate the introduction of such organisms. Although use of the sand-clay mix for reclamation is a new technology, there have been prior successful tests of such a system. Estech will have to comply with reclamation standards of the Department of Natural Resources and other governmental requirements. If the system proves to be unworkable, adjustments can be made such as the ratio of sand to clay to facilitate improved drainage and plant growth. (Testimony of Cornwell, Davis, Cape, Bromwell, Lincer, Gamble, Exhibits 3, 4, 6-7, 11, 15-16, 39-42, 47, 57, supplemented by Exhibits 56, 58) ECONOMICS, HOUSING, AND TRANSPORTATION a. Estech's mining operation is intended to replace existing operations in Polk County. The proposed mining activity will cover an approximate thirty-year time period before reclamation is completed. Annual operation expenses are estimated at approximately $30,000,000.00, and total expenditures for the proposed mining activity will reach almost $650,000,000.00 in capital and operating costs. There will be some 325 permanent employees during the course of mining operations, the majority of whom will probably come from the existing Estech labor force in Polk County. Since most of those employees are expected to commute from present residences in the region, there should be minimal impact on housing facilities. A "multiplier" effect of Estech's expenditures and employment will have a greater resulting economic impact in the region. Some of Estech's employees and contractor personnel are expected to reside in Manatee county with consequent payroll income. A portion of Estech's maintenance and supply needs will undoubtedly be obtained from local businessmen in the county. The proposed project should have only a minimal impact on local governmental services since it is located in a rural area and will be self-sufficient as to water, sewer, fire and police protection. Local and state tax revenues will be a direct effect of the new mining activity. Substantial payments by Estech of state sales tax, severance tax, county ad valorem tax, and corporate income tax will produce substantial benefit to government. The Estech project should have only minimal impact on the road network because it plans to ship the phosphate product by rail rather than truck, except during extraordinary conditions such as a rail strike. In such a situation, Estech has agreed to notify the Manatee County engineer of its use of county roads so that a reasonable trucking schedule may be established to minimize conflict with peak traffic patterns. Although rail service is not presently available, Estech has a letter of commitment from a railroad line to provide necessary facilities for movement of phosphate rock. Estech has agreed not to commence mining operations until rail service is provided. Estech has also agreed to make necessary road improvement and maintain and repair any damage to county roads during the course of mining operations. (Testimony of Cape, Davis, Fishkind, Exhibits 4, 6, 7, 11, 47, 54) PUBLIC WITNESSES Seven public witnesses testified at the original hearings before Manatee County in January 1979, and six witnesses, including one who had appeared at the County hearing, testified at the final hearing. Additionally, a group of local citizens signed a petition which set forth various environmental concerns as to the proposed project and recommended denial of the application for development approval. Although the majority of the public witnesses were opposed to phosphate mining and environmental consequences thereof, several of the witnesses were of the opposite view and believed that phosphate mining could be conducted without adverse impacts on the environment. (Testimony of Fernald, Rain, King, Kitzmiller, Haley, Burlingame, Exhibit 2 (Testimony of Rains, Werick, Quy, Doozburg, H. Greer, M. Greer, Swizzik), 10, 50)
Recommendation That the Florida Land and Water Adjudicatory Commission issue a decision granting permission to Estech General Chemicals Corporation to develop its property located in Manatee County in the manner provided in the application for development approval, and subject to the conditions attached hereto at Exhibit 13, pursuant to the provisions of Chapter 380, Florida Statutes. DONE and ENTERED this 31st day of July in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Bob Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter State Treasurer State of Florida The Capitol Tallahassee, Florida 32301 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32301 Department of Community Affairs C/O C. Laurence Keesey, Esquire Room 204, Carlton Building Tallahassee, Florida 32301 Department of Administration Mr. Nevin Smith, Secretary 435 Carlton Building Tallahassee, Florida 32301 Wade L. Hopping, Esquire Hopping, Boyd, Green and Sams Post Office Box 6526 Tallahassee, Florida 32301 Roger Tucker, Esquire Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702 Richard F. Nelson, Esquire 2070 Ringling Boulevard Post Office Box 2524 Sarasota, Florida 33578 Bill Fay, Jr., Esquire 1400 4th Avenue West Post Office Box 959 Bradenton, Florida 33505 Baya Harrison, III, Esquire 325 North Calhoun Street Tallahassee, Florida 32301 Exhibit A * NOTE: Exhibit A, LIST OF EXHIBITS, is not a part of this ACCESS document. Exhibit A is available for review from the Division's Clerk's Office. Exhibit B
