07-000564 City Of Lakeland vs. Southwest Florida Water Management District Status: Closed Recommended Order on Friday, January 4, 2008.

Summary: Petitioner provided reasonable assurances for a water use permit through 2014 with total allocations of 29.5 mgd, with 4.0 mgd from the City`s Northeast Wellfield. The evidence did not support its request for 36.8 mgd or 8.77 mgd from Northeast Wellfield.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF LAKELAND, ) )

)

Petitioner, )

) Case No. 07-0564

vs. )

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on August 6-10,

13-16, and 21, 2007, in Lakeland, Florida.

APPEARANCES

For Petitioner: Segundo J. Fernandez, Esquire

Timothy P. Atkinson, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A.

301 South Bronough Street, Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondent: Dominick J. Graziano, Esquire

Bush, Graziano & Rice, P.A.

Post Office Box 3423

Tampa, Florida 33601-3423

and

Joseph J. Ward, Esquire

Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34604

STATEMENT OF THE ISSUE

The issue is whether the Southwest Florida Water Management

District (District) should issue water use permit (WUP) No.

2004912.006 to the City of Lakeland (City), and if so, how much

water should be allocated under the permit and what conditions

should be imposed on the allocation, particularly in regard to

withdrawals from the City's Northeast Wellfield (NEWF).

PRELIMINARY STATEMENT

On December 29, 2006, the District gave notice of its

intent to issue WUP No. 2004912.006 (the proposed permit) to the

City. The proposed permit allocates the City 35.03 million

gallons per day (mgd) of water through 2013, rather than the

36.8 mgd through 2018 requested by the City. Among other

conditions, the proposed permit imposes limits and a phasing

schedule on the withdrawals from the City’s NEWF, and it

requires the City to obtain additional approvals from the

District prior to increasing withdrawals at the NEWF beyond 1.5

mgd.

On January 23, 2007, the City filed a petition with the

District requesting an administrative hearing pursuant to

Sections 120.569 and 120.57(1), Florida Statutes. 1 The petition

argues that the proposed permit “is not the permit for which the

City applied,” and alleges that “reasonable assurances have been

provided for all requested water allocations . . . in the City’s

permit application to the District.”

On January 30, 2007, the District referred this matter to

the Division of Administrative Hearings (DOAH) for the

assignment of an Administrative Law Judge to conduct the hearing

requested by the City. The referral was received by DOAH on

February 1, 2007.

The final hearing was initially scheduled to begin on

June 18, 2007, but it was continued to August 6, 2007, at the

request of the parties. The final hearing was held over a

period of 10 days, concluding on August 21, 2007.

The City presented the testimony of 11 witnesses: Charles

Garing (expert), Charles Drake (expert), Bruce LaFrenz (expert),

Ken Glass (fact), Dr. Robert Maliva (expert), Dr. Weixing Guo

(expert), William Musser (expert), Mary Hayes (expert),

Dr. David Depew (expert), Dr. Michael Dennis (expert), and

Dr. Thomas Missimer (expert). The District presented the

testimony of nine witnesses: Ken Weber (expert), Joe Oros

(fact), David Carpenter (fact), Dann Yobbi (expert), Robert

Peterson (expert), Dr. Mark Stewart (expert), John Emery

(expert), Dr. Brian Ormiston (expert), and Dr. Scott Emery

(expert). The areas in which the experts were tendered and

accepted are set forth in the Transcript of the final hearing.

The following exhibits were received into evidence: City

Exhibits 1(a)(1) through 1(a)(74), 1(b)(1) through (1)(b)(3), 2

through 24, 26 through 39, 41, 43, 48 through 52, 54, 56 through

59, 62, 65, 66, 82(a) through 82(c), 83, 84, 89, 107 through

111, 118, 124, 125, 127, 129a through 129h, 130, 136, 140,

140(a), 141 through 144, 163, 166a, 168, 170, 172(a) through

172(f), 177(a) through 177(c), 187(a), 194, 201(a) through

201(i), and 202(a) through 202(c); and District Exhibits 2

through 6, 8, 9, 12 through 15, 18, 29, 32, 32a, 33, 35, 36, 59,

61, 63, 68, 69, 71, 85, 87a, 87b, 87c, 87h, 87k, 88(a)(1), 89c,

90a through 90c, 91a through 91c 102, 113, 122 through 125,

125a, 126, 127, 129 through 132, 153, and 154a through 154c.

The 10-volume Transcript of the final hearing was filed on

September 13 (Volumes I through VI and X) and October 22, 2007

(Volumes VII, VIII, and IX). The parties initially requested

and were given until October 1, 2007, to file proposed

recommended orders (PROs). The deadline was twice extended at

the request of the parties. The PROs were timely filed on

October 22, 2007, and have been given due consideration in the

preparation of this Recommended Order.

Each PRO includes a draft permit and a draft environmental

monitoring and management plan (EMMP). The draft permit and

EMMP attached to the City’s PRO were presented at the final

hearing in City Exhibits 84 and 168. The draft permit and EMMP

attached to the District’s PRO appear to have been developed

after the final hearing in response to the evidence presented at

the hearing.

On December 26, 2007, the District filed a motion to reopen

the record for additional evidence on the issue of reuse. The

motion was denied in an Order entered on December 27, 2007.

FINDINGS OF FACT

A. Introduction

1. This is an unusual case in that the District gave

notice of its intent to issue a permit that the City does not

want and that the District staff testified that the City is not

even entitled to based upon the information submitted prior to

and at the final hearing.

2. That said, there is no disagreement between the parties

that a permit should be issued to the City. Indeed, despite the

District Staff's testimony that the City failed to provide

“reasonable assurances” prior to or at the final hearing on a

variety of issues, the District takes the position in its PRO

that a permit should be issued to the City, subject to various

conditions and limitations.

3. There is also no disagreement between the parties that

the permit should include an allocation of 28.03 mgd from the

City’s Northwest Wellfield (NWWF).

4. The main areas of disagreement between the District and

the City are the duration of the permit; the total allocation of

water under the permit; and, perhaps most significant, the total

allocation from the NEWF.

B. Parties

5. The City is an incorporated municipality located in

Polk County.

6. The City is within the boundaries of the District and

is within the Southern Water Use Caution Area (SWUCA) designated

by the District.

7. The City is the applicant for the WUP at issue in this

case, No. 20004912.006.

8. The City operates a public water utility that provides

potable water and wastewater services to customers in and around

the City. The utility’s water service area extends beyond the

City limits into surrounding unincorporated areas of Polk

County.

9. The District is the administrative agency responsible

for conservation, protection, management and control of the

water resources within its geographic boundaries pursuant to

Chapter 373, Florida Statutes, and Florida Administrative Code

Rule Chapter 40D.

10. The District is responsible for reviewing and taking

final agency action on the WUP at issue in this case.

C. Stipulated Facts

11. The parties stipulated that the City’s substantial

interests have been adversely affected by the District’s intent

to issue the proposed permit, and that the proposed permit is

different from the permit that the City applied for.

12. The parties also stipulated that there is reasonable

assurance that the City’s proposed water use will not interfere

with a reservation of water as set forth in Florida

Administrative Code Rule 40D-2.302; that the proposed use will

not significantly induce saline water intrusion; that the

proposed use will incorporate the use of alternative water

supplies to the greatest extent practicable; and that the

proposed use will not cause water to go to waste.

D. The City’s Wellfields

(1) Overview

13. The City obtains the water that its water utility

provides to its customers from two wellfields, the NWWF and the

NEWF.

14. The NWWF is located north of Lake Parker in close

proximity to Interstate 4 and Kathleen Road. It provides water

to the Williams Water Treatment Plant, from which the water is

distributed throughout the City water utility’s service area.

15. The NWWF is located on the Lakeland Ridge, which is a

geographic feature that is approximately 250 to 260 feet above

sea level. The Lakeland Ridge has a thick clay intermediate

confining unit that isolates the surficial aquifer from the

underlying aquifers.

16. The NEWF is located to the north of Interstate 4,

adjacent to Old Polk City Road. It provides water to the Combee

Water Treatment Plant (Combee), from which the water is

distributed throughout the City water utility’s service area.

17. The NEWF is located at an elevation of approximately

135 feet above sea level. The surficial aquifer at the NEWF is

relatively thin, and the intermediate confining unit at the NEWF

is not as thick as it is at the NWWF. The Upper Floridan

Aquifer (UFA) begins at approximately 65 below land surface at

the NEWF.

18. The City’s water treatment plants are traditional lime

softening plants and are not able to treat brackish groundwater

or surface water to the extent necessary for human consumption.

It would be cost-prohibitive to implement a process to treat

brackish water at the plants.

(2) Relevant Permitting History

19. The City’s water utility has been in operation for

more than 100 years, and the NWWF has been in operation since at

least the early 1980’s.

20. The earliest permit for the NWWF contained in the

record is permit No. 204912, which was issued by the District in

January 1987. The permit authorized average annual withdrawals

of 28.3 mgd, and had an expiration date of January 1993.

21. The NEWF was first permitted by the District in

December 1989. The permit, No. 209795.00, authorized the City

to pump an average of 9.0 mgd from the NEWF. The permit had a

six-year duration, with a December 1995 expiration date.

22. The permits for the NWWF and the NEWF were combined

into a single permit in October 1993. The permit, No.

204912.03, authorized the City to pump a total of 28.1 mgd, with

9.0 mgd from the NEWF. The permit had a 10-year duration, with

an October 2003 expiration date.

23. In December 2002, the City's WUP was administratively

modified pursuant to the District’s SWUCA rules. The modified

permit, No. 20004912.004, did not change the permitted

quantities at the NEWF or the 2003 expiration date, but the

total allocation was reduced to 28.03 mgd.

24. In October 2003, prior to the expiration of the

existing permit, the City submitted an application to renew and

modify its WUP permit. The application requested a 20-year

permit with a total allocation of 32.8 mgd, with up to 16.0 mgd

from the NEWF.

25. During the permit review process, the City amended its

application to increase the requested total allocation by 4.0

mgd (from 32.8 mgd to 36.8 mgd) and to decrease the requested

duration of the permit by five years (from 2023 to 2018). The

36.8 mgd requested by the City was to be allocated between the

NWWF (28.03 mgd) and the NEWF (8.77 mgd).

26. The City supplemented its application during the

permit review process in response to multiple requests for

additional information and clarification from the District. The

information provided by the City in support of the application

is extensive; the “permit file” received into evidence consisted

of approximately 2,500 pages, and the entire file is

approximately twice that size. 2

27. The review process culminated in what the District

staff considered to be a “negotiated permit” 3 that would

initially authorize pumping of 33.03 mgd, with 28.03 from the

NWWF, 1.5 mgd from the NEWF, and 3.5 mgd from a production well

to be constructed at Combee. The proposed permit includes a

phasing schedule that would allow for increased withdrawals --

up to 35.03 mgd total and 4.0 mgd from the NEWF 4 -- if the City

is able to demonstrate to the District’s satisfaction that the

increased pumping will not cause adverse environmental impacts.

28. The District gave notice of its intent to issue the

proposed permit on December 29, 2006, and the permit was placed

on the “consent agenda” for the District Governing Board’s

meeting on January 30, 2007.

29. On January 23, 2007, before the proposed permit was

considered by the Governing Board, 5 the City timely filed a

petition challenging the proposed permit. The petition alleges

that the proposed permit does not allocate sufficient water to

meet the City's projected population demands in 2018 and that it

does not allocate water quantities from the NEWF and the NWWF in

the manner requested by the City.

(3) The NEWF

30. The NEWF is approximately 880 acres in size. Wetlands

comprise approximately half of the site.

31. The NEWF is located within the boundaries of the Green

Swamp, which is an area of critical state concern (ACSC)

designated under Chapter 380, Florida Statutes.

32. The Green Swamp is a hydrologically and

environmentally important feature of central Florida

encompassing thousands of acres of cypress wetlands, marshes,

and forests.

33. In 1992, a task force recommended that public water

supply wellfields “of capacity greater than 1.8 mgd (average 3.6

mgd maximum)” from the UFA be discouraged in the Green Swamp

ACSC in favor of wells from the Lower Floridan Aquifer in order

to “mitigate drawdown impacts to the surficial aquifer system

and resulting dehydration of wetlands . . . .” There is no

evidence of that recommendation being formally adopted by the

District or any other governmental agency, and the District does

not have more stringent permitting criteria for WUP applications

in the Green Swamp, except that it considers potential adverse

impacts to all isolated wetlands and not just those larger than

one-half acre in size. 6

34. The City installed five 16-inch production wells at

the NEWF, along with a number of associated monitoring wells.

The production wells, which are cased to approximately 120 feet

with a total depth of approximately 750 feet, pump water from

the UFA.

35. Pumping at the NEWF started in October 2005. The City

has been pumping 4.0 mgd from the NEWF since that time.

36. The City has spent over $34 million to bring the NEWF

into service. The costs directly related to the acquisition of

the NEWF site and the installation of the wells at the site

account for approximately $7.6 million of that amount; the

remainder of the costs are for associated infrastructure, such

as the installation of water lines from the NEWF site and the

construction of Combee.

37. The wetlands on the NEWF site are predominantly

isolated cypress wetlands, although there are some connected

systems. Isolated wetlands are more susceptible to impacts from

water deprivation than are connected wetland systems.

38. The uplands on the NEWF site consist primarily of open

pasture and fields and areas of planted pines.

39. Extensive drainage improvements were constructed on

the NEWF site between 1941 and 1980 when the site was being used

as improved pastureland for cattle grazing and managed woodland

for logging and silviculture. The improvements included the

construction of a network of drainage ditches, culverts, roads,

a grass landing strip, and a gas pipeline.

40. The intent and effect of the drainage improvements was

to remove surface water from the onsite wetlands. Historical

aerial photographs show that these efforts were successful.

41. The wetlands on the NEWF were adversely impacted by

the drainage improvements, but for the most part, they are still

functioning, albeit low-quality wetlands.

42. The extensive ditching on the NEWF site continues to

have an adverse impact on the wetlands even though the ditches

have not been maintained and do not function as efficiently as

they once did.

43. The planted pine trees on the NEWF site may also be

adversely affecting the wetlands through increased

evapotranspiration from the surficial aquifer. However, the

evidence was not persuasive regarding the extent of the impact

from evapotranspiration.

44. The present condition of the wetlands at the NEWF is

not the result of recent activity. The biological indicators in

the wetlands (e.g. , adventitious roots on cypress trunks, large

oak trees in the wetlands, red maple trees in areas that had at

one time been dominated by cypress trees) show that the degraded

condition of the wetlands dates back decades.

45. The progressive draining and degradation of the

wetlands caused by the ditching and other drainage improvements

constructed on the NEWF site is apparent in the historic aerial

photographs of the site. The size of the wetlands and the

“hydrologic signatures” (e.g. , standing water around the rims of

wetlands and across the site, extensive cypress canopies, etc. )

visible on earlier aerial photographs are less visible or non-

existent in more recent aerial photographs.

46. The wetlands on the NEWF site have shown no biological

indicators of impacts from the pumping at the NEWF that started

in October 2005. This does not necessarily mean that the

pumping is not impacting the wetlands because the parties'

experts agree that it can take many years for such biological

indicators to appear.

47. The more persuasive evidence establishes that the

historical drainage improvements on the NEWF site were the

primary cause of the degraded condition of the wetlands. 7

48. The more persuasive evidence also establishes that

unless altered, the drainage improvements on the NEWF site will

continue to have an adverse effect on the wetlands.

49. The City proposed a conceptual Wetland Improvement

Plan (WIP) that is designed to restore and enhance the wetlands

on the NEWF. A central component of the WIP is the

reengineering and alteration of the drainage features by

installing “ditch blocks” in some areas and culverts in other

areas. The WIP also includes not replanting the pine trees on

the NEWF site once the existing planted pines are harvested.

50. The ditch blocks and other modifications to the

drainage features are intended to hold water on the NEWF site

and redirect it to the wetlands. This will help to hydrate the

wetlands, increase soil moisture levels, and allow more water to

percolate into the surficial aquifer following rain events.

51. The District staff expressed some concerns with the

City’s WIP at the final hearing, but acknowledged that the

plan’s “conception . . . has a lot of merit.” Indeed, in its

PRO, the District recommends the “installation of ditch blocks

and similar measures at the [NEWF] site.”

52. The WIP, if properly implemented, has the potential to

enhance the wetlands by returning them to a more natural

condition.

53. The City will likely need an Environmental Resource

Permit (ERP) from the District before any system of ditch blocks

can be installed. The details of the WIP can be worked out

during the ERP permitting process. 8

54. A good monitoring plan is part of providing reasonable

assurances. The parties agree that a monitoring plan should be

included as a permit condition, and the EMMPs attached to the

parties’ respective PROs appear to be materially the same.

55. The City has monitored the wetlands at the NEWF since

1994, pursuant to a specific condition in the 1993 WUP permit.

The methodology used by the City to monitor the wetlands was

approved by the District, and despite the fact that the City has

submitted biannual monitoring reports to the District for almost

14 years, the District expressed no concerns regarding the

methodology or results of the monitoring until recently.

56. The District commenced its own wetland assessment

procedure at the NEWF in May 2007, which included setting

“normal pools” in several of the wetlands. “Normal pool”

describes the level at which water stands in a wetland in most

years for long enough during the wet season to create biological

indicators of the presence of water.

57. The establishment of normal pools was part of the

District’s efforts to establish the “existing natural system”

against which any post-withdrawal adverse impacts at the NEWF

would be measured in accordance with Section 4.2 of the Basis of

Review for Water Use Permit Applications (BOR). 9

58. Normal pools could not be established in several of

the wetlands because there was no measurable standing water

above the surface in the wetland. District staff observed

similar conditions –- i.e. , no standing water in the wetlands –-

on at least one occasion following a significant rain event

prior to the start of pumping at the NEWF.

59. The District does not have a rule governing the

setting of normal pools, but the City’s experts did not take

issue with the normal pools set by the District or the

methodology used by the District to set the normal pools.

60. The EMMP proposed by the City is an extensive

monitoring plan that incorporates a series of onsite monitoring

wells, wetland monitoring stations for vegetation and

hydrogeology, monitoring of pumping rates and pumping data, and

monitoring of rainfall data. The EMMP will make use of the

extensive data that has been collected on the NEWF site since

the 1990’s as well as the normal pools set by the District, and

if properly implemented, the EMMP will detect any potential

adverse impacts as they occur to allow for remedial mitigation.

61. The District staff acknowledged at the final hearing

that the EMMP proposed by the City “with some minor

modifications” is an appropriate plan to monitor changes in the

wetlands at the NEWF. The necessary "minor modifications" were

not explained at the final hearing, and as noted above, there

does not appear to be any material difference in the EMMPs

attached to the parties’ respective PROs.

62. The Green Swamp is generally viewed as a “leaky” area,

with little or no confinement between the surficial aquifer and

the Floridan aquifer.

63. Regional data, including studies by the United States

Geologic Survey (USGS) and the District, reflect that the NEWF

is located in a “transitional area” between areas of little or

no confinement to the north, northwest, and east of the NEWF and

areas of thicker confinement to the south. However, at least

one study (published in 1977 USGS report) shows the NEWF in an

area designated as "poor" for its relative potential for

downward leakage.

64. Regional data may be used to gain knowledge about the

aquifer properties at a potential well site, but such data is

not a valid substitute site-specific data. Indeed, the location

of the NEWF in a “transitional area” makes site-specific data

even more important.

65. The City used geologic cross-sections (e.g. , soil

borings and core samples) at the NEWF to determine the site’s

lithologic characteristics. By contrast, the District relied

primarily on USGS reports and other regional data to postulate

as to the lithologic characteristics of the NEWF. As a result,

the City’s position regarding the lithologic characteristics of

the NEWF was more persuasive than the District’s position.

66. The lithology of the NEWF site consists of a shallow,

sandy surficial aquifer, which extends to a depth of 3 to 5

feet, proceeding downward to sandy clay and clay sand semi-

confining layers, alternating with impermeable clay units,

interspersed with an intermediate aquifer composed of sandy

clays and clay sands that contain water, proceeding downward to

the limestone of the UFA.

67. The presence of clay layers between the intermediate

aquifer and the UFA, together with clay layers between the

intermediate aquifer and the surficial aquifer, provide two

layers of protection between the pumped aquifer and the

surficial aquifer and wetlands, and serve to ameliorate any

impacts to the surficial aquifer caused by withdrawals from the

UFA.

68. “Leakance” is a measure of vertical conductivity that

describes the rate at which water flows through a confining

unit. As a result, leakance is one of the most important

factors to consider when modeling surficial aquifer impacts and

potential wetland impacts from groundwater pumping.

69. Generally, a higher leakance value is an indication of

a “leakier” system with less confinement between the surficial

aquifer and the UFA. The “leakier” the system, the greater the

impacts of pumping on the surficial aquifer will be.

70. The District contends that the confining unit

underlying the NEWF is “leaky” and that the pumping at the NEWF

is likely to directly and adversely affect the onsite wetlands.

However, the more persuasive evidence establishes that the lower

leakance value derived by the City based upon the site-specific

lithology of the NEWF and the data from the aquifer performance

tests (APTs) conducted at the NEWF is more accurate than the

higher leakance value urged by the District.

71. The purpose of an APT is to determine the hydrologic

parameters of an aquifer. In particular, an APT is used to

determine the transmissivity, leakance, and storage values of

the aquifer.

ansmissivity is a measure of how easily water flows

through the ground, and storage is a measure of the amount of

water in the porous spaces of the aquifer. Generally, a higher

transmissivity value and a lower storage value indicate better

confinement.

73. There have been three APTs conducted at the NEWF.

74. The first APT (APT-1) was conducted in 1989 as part of

the initial permitting of the NEWF. A high transmissivity value

and a low storage value were calculated in APT-1. A leakance

value was not calculated.

75. The results of APT-1 were presented to the District to

justify the City’s request to pump 9.0 mgd from the NEWF, which

the District approved.

76. The 1993 permit combining the NWWF and the NEWF

required the City to conduct a long-term APT in order to

“determine the leakance parameter between the surficial and

intermediate aquifers and the leakance parameter between the

intermediate and Upper Floridan aquifers.” The permit stated

that if the hydrologic parameters obtained in the APT were

different from those used in the model submitted in support of

the initial WUP, the City would have to revise the model and, if

necessary, modify the WUP to reduce withdrawals.

77. This second APT (APT-2) was a seven-day test conducted

by the City in January 2001 in accordance with a methodology

approved by the District. An “exceedingly low” leakance value

of 4.5 x 10 -4 gallons per day per cubic foot was calculated in

APT-2. The transmissivity and storage values calculated in APT-

2 were essentially the same as the values calculated in APT-1.

78. The District expressed concerns with the results of

APT-2, and in December 2001, the District advised the City that

it should “proceed with caution during the planning of

infrastructure (pipelines) for the [NEWF]” because the

“wellfield may not be able to produce the volume of water the

City has stated that would like from the wellfield, without

causing adverse impacts.” 10

79. Based upon these concerns, the District conducted an

APT (APT-3) at the NEWF in April and May 2003.

80. The parties’ experts agree that data from APT-3 is

reliable, but the experts disagree in their interpretation of

the data, particularly in regards to the leakance value.

81. The City’s experts calculated a leakance value of 1.4

x 10 -4 feet per day per foot, which is a low leakance value. The

expert presented by the District, Dann Yobbi, calculated a

higher leakance value of 3.4 x 10 -3 feet per day per foot, which

suggests relatively “leaky” aquifer.

82. The leakance value calculated by the City’s experts is

more persuasive than the value calculated by Mr. Yobbi because

Mr. Yobbi did not “de-trend” the data from APT-3 based upon the

general declines in water levels occurring at the time of APT-3.

Indeed, Mr. Yobbi testified that he is in the process of

revising his report on APT-3 to address this issue and he

acknowledged that the surficial aquifer showed only a “slight

response” to the pumping during APT-3.

83. The leakance value calculated by the City’s experts in

APT-3 is consistent with the leakance value calculated in APT-2.

The transmissivity and storage values calculated in APT-3 are

also consistent with the values calculated in APT-1 and APT-2.

84. The reliability of the leakance values and other

aquifer parameters calculated by the City’s experts for the NEWF

is confirmed by water level data compiled by the City pursuant

to the monitoring requirements in the existing WUP.

85. The water level data was collected from monitoring

wells at the NEWF in the surficial aquifer, the intermediate

aquifer, and the UFA. The City began collecting this data in

1994 and it continues to collect and report the data to the

District as required by the existing WUP.

86. The water level monitoring data reflects that the

surficial aquifer at the NEWF responds almost immediately to

rain events. By contrast, the intermediate aquifer and UFA show

a more subdued response to rainfall events, which is indicative

of good confinement, especially between the UFA and the

surficial aquifer.

87. The water level monitoring data shows that rainfall or

lack of rainfall is the major controlling factor relative to the

rate of surficial aquifer recharge at the NEWF.

88. The water level monitoring data since pumping began at

the NEWF shows that the pumping at 4.0 mgd is having a minimal

impact on the surficial aquifer at the NEWF. Indeed, the more

persuasive evidence establishes that the general decline in

water levels that has been observed in the monitoring wells at

the NEWF over the past several years is more likely than not

attributable to the severe drought in the area and the onsite

drainage features, and not the pumping at the NEWF. 11

89. Moreover, the more persuasive evidence shows that

following the start of pumping at the NEWF in October 2005, the

water levels in the surficial, intermediate, and Floridan

aquifers returned to the historic patterns of up and down

response to rainfall events shown throughout the thirteen-year

period of record: the surficial aquifer fills quickly (as it

receives the rainwater directly) and empties quickly (through a

combination of surface drainage, evapotranspiration,

evaporation, and leakage), while the UFA responds with more

gradual rising and falling (as water enters the aquifer through

recharge areas and slowly percolates into the aquifer through

more confined areas).

90. The analysis of the water level data collected during

APT-3 showed a similar trend in the rates of decline in the

surficial aquifer as were reflected in the hydrographic record

of the monitoring well data collected by the City since 1994.

The natural, post-rainfall rate of decline under non-pumping

conditions was consistent with the rate of decline observed

during pumping conditions in APT-3.

91. In sum, the interpretation of the water level data by

the City’s experts was more persuasive than the interpretation

by the District’s experts.

E. Modeling of Predicted Drawdowns and Impacts

92. The City utilized two different models to predict

drawdowns from the proposed pumping at the NWWF and NEWF: the

USGS “Mega Model” and the District’s District-Wide Regulation

Model (DWRM).

93. The models incorporated regional data published by the

USGS and the District as well as site-specific data from the

NEWF, including the lithologic information collected through

soil borings and the hydrologic parameters of the aquifers

calculated in APT-3. The models were calibrated and de-trended

to remove “background conditions” (e.g. , regional water level

declines) so that the models would only show the predicted

effects of the pumping.

94. Once the calibration was complete, the models were run

to simulate the effect of the pumping on the groundwater flows

in the area. The models produced contour maps that showed the

predicted drawdowns in the surficial aquifer as a result of the

pumping.

95. The USGS Mega Model predicted that pumping the NEWF at

8.77 mgd would result in drawdowns of approximately 0.5 foot in

the surficial aquifer in and around the NEWF.

96. The DWRM model predicted a 0.18 foot drawdown in the

surficial aquifer in and around the NEWF when pumping the NEWF

at 4.0 mgd, and a drawdown of 0.4 foot when pumping at 8.77 mgd.

97. The same models were used to predict the “cumulative”

drawdowns by taking into account pumping by existing legal users

as well as the pumping at the NWWF. The cumulative models

assumed pumping of 36.8 mgd from the City’s wellfields.

98. The USGS Mega Model predicted that cumulative

drawdowns in the surficial aquifer in and around the NEWF would

be an additional 0.3 feet, with 8.77 mgd of pumping at the NEWF.

99. The DWRM model predicted that the cumulative drawdowns

in the surficial aquifer in and around the NEWF would be 0.4

foot with 4.0 mgd of pumping at the NEWF, and 0.6 foot at 8.77

mgd of pumping at the NEWF.

100. The City utilized the 1995 data set of existing legal

users in its cumulative DWRM modeling because that was the data

set provided by the District. The difference between the 1995

data set and the more current 2002 data set is on the order of

20 mgd, which is inconsequential in comparison to the 1.1

billion gallons per day of withdrawals included in the model

that are spread over the geographic extent of the District.

101. The predicted drawdowns in the surficial aquifers in

and around the NEWF would be considerably greater if the

hydrologic parameters calculated by Mr. Yobbi were used in the

DWRM model. For example, the District’s modeling predicted

drawdowns between 1.0 and 1.2 feet in the surficial aquifer in

and around the NEWF when pumping 1.5 mgd from the NEWF, 3.5 mgd

from Combee, and 28.03 mgd from the NWWF.

102. The wetlands experts presented by the parties agreed

that the level of drawdown predicted by the City at the NEWF has

the potential to adversely impact the wetlands on the site. The

experts also agreed that there is no bright line as to the

amount of drawdown that will adversely impact the wetlands.

103. The City’s expert, Dr. Michael Dennis, testified that

drawdowns in the surficial aquifer between 0.18 foot and 0.5

foot “probably” would not affect the wetlands at all, or at

least “not measurably.” He also testified that drawdowns

between 0.5 foot and one foot “are the drawdowns that you need

to be concerned about.”

104. The District’s expert, John Emery, testified that a

drawdown in the surficial aquifer of 0.4 foot “could” adversely

affect the wetlands if no mitigation is provided, but that a

drawdown of 0.2 to 0.3 foot might not. 12

105. The WIP is expected to increase the amount of water

that gets to the wetlands on the NEWF site. However, the extent

to which the WIP will increase the water levels in the wetlands

and offset the predicted drawdowns in the surficial aquifer is

unknown at this point.

106. Limiting pumping at the NEWF to 4.0 mgd is reasonable

and prudent based upon the uncertainty regarding the

effectiveness of the WIP and the experts’ testimony regarding

the level of drawdowns that likely would, and would not,

adversely affect the wetlands at the NEWF.

107. In sum, the more persuasive evidence establishes that

the drawdown predicted at 4.0 mgd of pumping –- 0.18 foot

(individually) and 0.4 feet (cumulatively) –- is not likely to

adversely impact the already significantly degraded wetlands at

the NEWF, particularly if the WIP is properly implemented.

F. Demand Projections

108. The City did not use the full 28 mgd allocated under

its existing WUP. It pumped only 21 mgd in the 12 months

preceding October 2003, when the permit was scheduled to expire;

it pumped only 26 mgd in 2006; and the pumping for 2007 was

expected to be approximately 1 mgd lower than the pumping in

2006.

109. The City's WUP application contained population and

demand projections for different years in the future. For 2014

(the permit expiration date proposed by the District), the

“functional population” 13 of the service area was projected to be

183,264 and the average demand was projected to be 29.5 mgd; for

2023 (the original permit expiration date requested by the

City), the projections were 203,721 people and 32.8 mgd; and for

2018 (the permit expiration date now requested by the City), the

projections were 192,176 people and 30.9 mgd.

110. The projections in the WUP application were prepared

in 2003, and City's primary consultant, Charles Drake, testified

that the data was “accurate” and “reliable.” However, more

recent data shows that the population projections in the WUP

application were slightly understated.

111. The more recent data is contained in the “Water

Services Territory Population Estimates and Projections” reports

prepared by the City's utility department in March 2006 and

March 2007. The reports include estimates of the functional

population for prior years, and projections of the functional

population for future years. The estimates reflect the “actual”

population for a given year in the past, whereas the projections

reflect the “expected” population for future years.

112. The estimates and projections in these reports, like

the projections in the WUP application, were prepared in

accordance with the methodology contained in the BOR. The

District did not take issue with the projections in the reports

or the WUP application.

113. The estimated functional population of the service

area in 2003, 2004, 2005, and 2006 exceeded the population

projected for those years in the WUP application. On average,

the projected populations for each year understated the “actual”

populations by approximately 3,500 persons. 14

114. Likewise, the population projections for future years

in the March 2007 report are higher than the population

projections for the same years in the WUP application. For

example, the report projects that the functional population of

the service area in 2014 will be 191,208 (as compared to 183,264

in the WUP application), and that population in 2018 will be

203,247 (as compared to 192,176 in the WUP application).

115. The City presented “revised” population projections

at the final hearing in City Exhibit 140. The revised

projections were based on the projections in the March 2006

report, but also included data from the “water allocation

waiting list” that is part of the City’s concurrency management

system that was created by the City in response to legislation

passed in 2005 requiring local governments to allocate and

approve requests for water for new development.

116. The population projections in City Exhibit 140 are

234,959 in 2014; 247,390 in 2018; and 264,556 in 2023. These

projections include an additional 43,471 persons related to new

development in the concurrency management system, as well as the

additional 2,600 to 3,000 persons projected per year in the WUP

application and the March 2006 report.

117. The City failed to establish the reasonableness of

the revised population projections. Indeed, among other things,

the evidence was not persuasive that the additional population

attributed to the new development in the concurrency management

system is not already taken into account, at least in part, in

the annual population increases projected in the March 2006

report. 15

118. The most reasonable population projections for the

service area of the City's utility are those in the March 2007

report. 16

119. The record does not contain demand projections

directly related to the population projections in the March 2007

report. However, demand projections for those population

projections can be inferred from the WUP application (City

Exhibit 1(a)(2), at 0036) and City Exhibit 140 (at page 0015).

120. The 2014 projected population of 191,208 in the March

2007 report roughly corresponds to the projected population for

2018 in the WUP application (192,176) for which the projected

demand was 30.9 mgd; and it also roughly corresponds to the

projected population for 2008 in City Exhibit 140 (193,001), for

which the projected demand was 28.7. Thus, in 2014, it is

reasonable to expect that demand will be between 28.7 and 30.9

mgd.

121. The 2018 projected population of 203,247 in the March

2007 report roughly corresponds to the projected population for

2023 in the WUP application (203,721) for which the projected

demand was 32.8 mgd; and it also roughly corresponds to the

projected population for 2009 in City Exhibit 140 (201,983), for

which the projected demand was 30.2 mgd. Thus, in 2018, it is

reasonable to expect that demand will be between 30.2 and 32.8

mgd.

122. The demand projections in the WUP for 2014 (29.5 mgd)

and 2018 (30.9 mgd) fall within the range inferred for the

populations in the March 2007 report. Thus, even though the

population projections in the WUP application for 2014 and 2018

are understated, the demand projections for those years in the

WUP are still reasonable.

123. The demand projections in City Exhibit 140 –- 35.3

mgd in 2014 and 36.6 mgd in 2018 –- are overstated as a result

of unreliable population projections upon which they are based.

G. Other Issues

(1) Duration of Permit

124. The 1987 permit for the NWWF had a six-year duration,

as did the original 1989 permit for the NEWF.

125. The 1993 permit had a 10-year duration, but that

permit did not increase the amount of authorized withdrawals; it

simply combined the authorizations for the NWWF and the NEWF

into a single permit.

126. In this case, the City is requesting a permit that

expires in 2018, which was a 15-year duration at the time the

application was filed, but now is a 10-year duration. The

District is proposing a permit with a six-year duration,

expiring in 2014.

127. The District is authorized to approve a WUP with a

duration of up to 50 years. The District’s rules provide that

the duration of the permit is to be determined based upon “the

degree and likelihood of potential adverse impacts to the water

resource or existing users.”

128. The District’s rules require that in order for the

District to approve a permit with a duration of more than 10

years, the applicant is required to present sufficient facts to

demonstrate that such a permit is “appropriate.”

129. Section 1.9 of the BOR provides “guidelines”

regarding the duration of permits. The guidelines in the BOR

are not binding on the District, but the nearly identical

language in Florida Administrative Code Rule 40D-2.321 is

binding on the District.

130. The BOR provides that a six-year permit is to be

issued for renewal permits “with modification to increase the

quantity withdrawn by more than or equal to 100,000 gpd or 10%

or more of the existing permitted quantities, whichever is

greater.”

131. The BOR and Florida Administrative Code Rule 40D-

2.321(2)(b) also provide that a six-year permit is to be issued

“where the potential for significant adverse impacts are

predicted.”

132. The renewal permit that the City is seeking requests

an increase of 8.7 mgd (from 28.1 mgd to 36.8 mgd) over the

existing permitted quantities, which exceeds the 10 percent

threshold in Section 1.9 of the BOR. Moreover, there is a

potential for significant adverse impact from the renewal permit

that the City is seeking. Accordingly, a six-year permit is

appropriate under the District’s rules and the guidelines in the

BOR.

133. The City failed to demonstrate why a longer permit

duration is appropriate under the circumstances of this case.

134. District staff testified at the final hearing that

the permit term should be calculated from the date the permit is

issued, which will be some point in 2008. Therefore, the permit

should have an expiration date of 2014.

(2) Offsite Impacts

135. The City used the modeling described above to predict

the drawdown in the UFA from the proposed pumping in order to

determine whether there will be any adverse impacts on existing

legal users.

136. The predicted drawdown in the UFA in the vicinity of

the NEWF ranges from 1.6 feet to 2.4 feet with 4.0 mgd of

pumping at the NEWF, and between 3.4 feet and 5 feet with

pumping at 8.77 mgd.

137. The predicted drawdown in the UFA in the vicinity of

the NWWF ranges from 10.0 to 14.0 feet, with 28.03 mgd of

pumping at the NWWF. 17

138. These predicted drawdowns are not expected to have

any adverse impacts on existing legal users that have wells in

the UFA. Most permitted wells in the UFA use vertical turbine

pumps, which can easily accommodate fluctuations in water levels

of five feet or more.

139. The City has not received any complaints from

existing users since it began pumping 4.0 mgd at the NEWF in

October 2005.

140. The pumping at the NWWF, which has been ongoing for

more than 20 years, has not caused any adverse impacts to

existing legal users.

141. The City is required under the existing WUP to

respond to any adverse impact complaints from existing legal

users, and it is required to implement mitigation, as needed. In

short, City is required to do whatever is necessary (e.g. ,

relocating or increasing capacity of pump, lowering pipes) to

return any well impacted by the pumping to its prior function.

142. The City did not evaluate the potential impacts of

its proposed pumping on unpermitted wells because the District

does not maintain a database of unpermitted wells. However, the

City acknowledges that if its pumping impacts an unpermitted

well, it will be obligated to mitigate those impacts in the same

manner that it is required to mitigate impacts to existing

permitted users.

143. The predicted drawdowns for water bodies in the

vicinity of the NWWF and the NEWF that have designated Minimum

Flows and Levels (MFLs) -- Lake Bonny, Lake Bonnett, and the

Cone Ranch wetlands -- are minimal, on the order of 0.1 foot.

144. The City evaluated the impacts of pumping on

contaminated sites listed by the Department of Environmental

Protection (DEP) in the vicinity of the NWWF and NEWF. Based

upon the results of the modeling conducted by the City, there is

no reason to expect that pumping at the NWWF and/or NEWF will

have any measurable impact on those sites or lead to pollution

of the aquifer.

(3) Potential Impacts of NWWF Pumping

145. The only concern expressed by the District with

respect to the pumping at the NWWF relates to the potential

environmental impacts of the pumping on Lake Bonny and Lake

Bonnett.

146. The City agreed to include those lakes in its EMMP.

(4) Combee

147. Combee is located approximately four miles south of

the NEWF.

148. There is a relatively thick clay confining unit at

Combee, which, according to the District, makes it a better

location for water withdrawals than the NEWF.

149. The District conducted an APT at Combee in 2006.

150. The hydrologic parameters derived from the APT, and

the “preliminary modeling” performed by the District show that

the City may be able to withdraw at least 3.0 mgd from wells at

Combee.

151. The proposed permit authorized pumping of 3.5 mgd

from Combee. The proposed permit also included a phasing

schedule pursuant to which pumping at Combee would be decreased

to 3.0 mgd if pumping at the NEWF reached 4.0 mgd.

152. The City expressed an interest in obtaining water

from Combee throughout the permitting process. However, the

City represented at the outset of the final hearing that the

Combee well is “off the table because the City wishes to

maximize the withdrawal allocation from [the NEWF].”

153. The City stated in its PRO that it is “willing to

consider permitting a production well at [Combee] as a potential

mitigation resource, should unexpected adverse impacts require

the City to divert production to a back-up resource.”

154. The District stated in its PRO that the Combee well

is “available for mitigation purposes," and that the City

“should be encouraged to apply for a WUP for withdrawals from

Combee up to 3.0 mgd to provide additional mitigation for

pumping from the [NEWF].”

(4) Pump rotation

155. Rotation of pumping between the wells in a wellfield

is a standard practice, and it can be an effective mitigation

technique.

156. The City utilizes well rotation programs at the NWWF

and the NEWF in order to minimize the stress on the production

aquifers.

157. Rotating pumping between the production wells at the

NEWF is particularly appropriate because several of the wells

are located in very close proximity to wetlands. Rotating the

pumping will help to minimize the potential for adverse impacts

to the wetlands.

158. The actual rotation schedule is an operational

decision that is made based upon observed conditions at the

wellfield site, rather than something that is typically included

in the WUP.

(5) Conservation and Reuse

159. The City has a four-tiered conservation rate

structure, modeled after the District’s graduated water-rates

prototype. The rate structure imposes higher unit costs as

individual consumption increases, thereby discouraging wasteful

uses of water.

160. The City has a comprehensive leak detection program

aimed at preventing the loss of water within the City’s water

distribution system. This program has helped to reduce the per-

capita per-day consumption rate for the City by reducing the

volume of water that is wasted before it is delivered to the

consumer.

161. The City has implemented irrigation restrictions

aimed at reducing the quantities of water used by domestic

customers for lawn and garden watering.

162. The per capita rate of water consumption is a measure

of the effectiveness of a water conservation program; the lower

the figure, the better.

163. The City’s per capita rate has increased in recent

years, but its adjusted gross per capita rate has decreased.

The adjusted gross per capita rate takes into account

“significant users,” which are defined as non-residential

customers other than golf courses that use more than 25,000

gallons per day or that represent more than five percent of the

utility’s annual water use. 18

164. The City’s per capita rate in 2005 was 145.69 gallons

per day, and its adjusted gross per capita rate in that year was

132.01 gallons per day.

165. The adjusted gross per capita rate may not exceed 150

gallons per day within the SWUCA. Thus, the City will be

required to continue its conservation programs (and implement

additional programs, if necessary) to ensure that its adjusted

gross per capita rate does not exceed 150 gallons per day over

the life of the permit.

166. A portion of the City’s treated wastewater is reused

for cooling at the City’s McIntosh Power Plant pursuant to a

permit from DEP under Chapter 403, Florida Statutes. The DEP

permit, No. FL0039772 (Major), states in pertinent part:

Industrial Reuse: Effluent is reused . . .

as a non-contact cooling water at the City

of Lakeland McIntosh Power Generating Plant.

The volume of water used on a daily basis

fluctuates on an as needed basis. There are

no restrictions on the volume that can be

routed to the reuse system. The power plant

evaporates water in the cooling process or

returns cooling water into the Glendale WWTP

for final treatment in the manmade wetlands

treatment system. The reuse in the power

plant is not required as effluent disposal.

. . . .

167. The remainder of the City’s treated wastewater is

“blended” with the water used at the power plant in order to

meet the conductivity standards in the DEP permit and the

conditions of certification for the power plant and/or directly

discharged into an artificial wetland system that ultimately

discharges to the Alafia River.

168. Section 3.1 of the BOR (at page B3-2) provides that

“Water Use Permittees within the SWUCA who generate treated

domestic wastewater are encouraged to demonstrate that . . . 50%

of the total annual effluent flows is beneficially reused.”

(Emphasis supplied).

169. The BOR lists a number of uses of treated wastewater

that are considered to be beneficial reuse. The list includes

“industrial uses for cooling water, process water and wash

waters” and “environmental enhancement, including discharges to

surface water to replace withdrawals.”

170. The City’s use of treated wastewater for cooling at

the McIntosh Power Plant is a beneficial reuse under the BOR.

171. The treated wastewater directly discharged by the

City into the artificial wetland system is not a beneficial

reuse under the BOR because it is not replacing surface water

withdrawals.

172. The BOR requires all users within the SWUCA to

investigate the feasibility of reuse, and requires the

implementation of reuse “where economically, environmentally and

technically feasible.”

173. The City has not recently undertaken a study or

otherwise evaluated the feasibility of increasing its reuse.

174. The draft permit attached to the District's PRO

includes a specific condition requiring the City to "provide a

comprehensive study of reuse opportunities encompassing the

[City's] water, wastewater, and electrical utilities systems" by

January 1, 2009.

CONCLUSIONS OF LAW

175. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

176. The City has the burden to affirmatively prove by a

preponderance of the evidence that its WUP application should be

approved. See Dept. of Transportation v. J.W.C. Co., Inc. , 396

So. 2d 778, 787-89 (Fla. 1st DCA 1981).

177. The District does not have a formal burden of

production in this case, as the parties seem to believe. 19 The

discussion in J.W.C. Co. regarding the shifting of the burdens

of production was in the context of a third-party challenge to

an agency’s notice of intent to approve a permit.

178. The court’s discussion of the shifting burdens of

production was based upon the “general proposition” that:

a party should be able to anticipate that

when agency employees or officials having

special knowledge or expertise in the filed

accept data and information supplied by the

application, the same data and information,

when properly identified and authenticated

as accurate and reliable by agency or other

witnesses, will be readily accepted by the

hearing officer, in the absence of evidence

showing its inaccuracy or unreliability.

J.W.C. Co. , 396 So. 2d at 789. However, this “general

proposition” is not applicable in this case because the

information presented by the City during the free-form permit

review process was not sufficient to convince the District to

issue the permit that the City wanted.

179. That said, it is not enough for the District to

simply say that the information provided by the City is

insufficient to meet the permitting requirements; it must

demonstrate the inadequacy of the information, either through

cross-examination of the City’s witnesses or through the

presentation of its own evidence.

180. The City must provide “reasonable assurances” that

the proposed withdrawals will not violate the applicable

statutes and rules. This standard does not require the City to

provide absolute guarantees, nor does it require the City to

eliminate all speculation concerning what might occur if the

requested withdrawals are authorized; instead, the City is only

required to establish a "substantial likelihood that the project

will be successfully implemented." See , e.g. , Metro Dade County

v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992);

Blanco v. Southwest Fla. Water Management Dist. , Case No. 05-

3274, 2006 Fla. Div. Adm. Hear. LEXIS 144, at ¶ 102 (DOAH Apr.

10, 2006; SWFWMD May 30, 2006), aff’d , 955 So. 2d 573 (Fla. 2d

DCA 2007) (table).

181. In evaluating whether reasonable assurances have been

provided, it is appropriate to look at the totality of the

circumstances. See Booker Creek Preservation, Inc. v. Mobil

Chemical Co. , 481 So. 2d 10, 13 (Fla. 1st DCA 1986). A future

monitoring requirement is a factor that can be considered in

determining whether reasonable assurances have been provided.

See Metropolitan Dade County , 609 So. 2d at 648.

182. Section 373.223(1), Florida Statutes, requires the

applicant for a WUP to establish that the proposed water use:

(a) Is a reasonable-beneficial use as

defined in s. 373.019;

(b) Will not interfere with any presently

existing legal use of water; and

(c) Is consistent with the public

interest.

183. Section 373.019(16), Florida Statutes, defines

“reasonable-beneficial use” to mean “the use of water in such

quantity as is necessary for economic and efficient utilization

for a purpose and manner which is both reasonable and consistent

with the public interest.”

184. The rules adopted by the District to implement

Section 373.223(1), Florida Statutes, are codified in Florida

Administrative Code Rule Chapter 40D-2. The BOR, which is

incorporated by reference in Florida Administrative Code Rule

40D-2.091, contains additional standards and guidance for the

District’s review of WUP applications.

185. A six-year permit is appropriate in this case. See

Fla. Admin. Code R. 40D-2.321(2)(b); BOR § 1.9. The City failed

to demonstrate that a permit with a longer duration is

appropriate under the circumstances of this case.

186. The "conditions for issuance of permits" in Florida

Administrative Code Rule 40D-2.301 provides in pertinent part:

(1) In order to obtain a Water Use

Permit, an Applicant must . . . provide

reasonable assurances, on both an individual

and cumulative basis that the water use:

(a) Is necessary to fulfill a certain

reasonable demand;

(b) Will not cause quantity or quality

changes which adversely impact the water

resources, including both surface and ground

waters;

(c) Will not cause adverse environmental

impacts to wetlands, lakes, streams,

estuaries, fish and wildlife, or other

natural resources;

(d) Will comply with the provision of 4.3

of the Basis of Review [concerning minimum

flows and levels] . . .;

(e) Will utilize the lowest water quality

that the Applicant has the ability to use;

(f) Will not significantly induce saline

water intrusion;

(g) Will not cause pollution of the

aquifer;

(h) Will not adversely impact offsite

land uses existing at the time of the

application;

(i) Will not adversely impact an existing

legal withdrawal;

(j) Will incorporate water conservation

measures;

(k) Will incorporate reuse measures to the

greatest extent practicable;

(l) Will not cause water to go to waste;

and

(m) Will not otherwise be harmful to the

water resources within the District.

187. Compliance with these “conditions for issuance”

provides reasonable assurance of compliance with the standards

in Section 373.223(1), Florida Statutes.

188. With respect to paragraph (a) of the rule (and BOR

Sections 3.6 and 4.1), the City failed to establish that the

requested 36.8 mgd in 2018 is necessary to fulfill a reasonably

certain demand. Rather, the more persuasive evidence supports a

demand for 29.5 mgd in 2014, and a demand for 30.9 mgd in 2018.

Those amounts reflect the “demand that is supported by adequate

documentation.” See BOR § 4.1 (“Only the portion of demand that

is supported by adequate documentation will be permitted.”).

189. With respect to paragraph (b) of the rule, the more

persuasive evidence establishes that with a 4.0 mgd limit on

withdrawals from the NEWF, the proposed use will not adversely

impact water quality or quantity in the surficial aquifer or the

UFA. Specifically, the evidence establishes that the NEWF is

not as “leaky” as the District contends; that pumping of the UFA

at the NEWF a rate of 4.0 mgd is not likely to adversely affect

the water levels in the surficial aquifer or the wetlands at the

NEWF; and that the EMMP appropriately requires continued

monitoring of the water levels and the wetlands at the NEWF.

190. With respect to paragraph (c) of the rule (and

Section 4.2 of the BOR), the more persuasive evidence

establishes that with a 4.0 mgd limit on withdrawals from the

NEWF, the proposed use will not adversely affect wetlands or

other natural resources. The degraded condition of the wetlands

at the NEWF is a result of the historical drainage features on

the site, not the 4.0 mgd of pumping that started at the NEWF in

October 2005, and continued pumping at that rate will not

further degrade the wetlands. Moreover, any additional impacts

from the continuation of pumping at that rate will likely be

offset by the implementation of the WIP proposed by the City.

191. With respect to paragraph (d) of the rule (and

Section 4.3 of the BOR), the more persuasive evidence

establishes that with a 4.0 mgd limit on withdrawals from the

NEWF, the proposed use will not adversely impact any water

bodies for which MFLs have been established. The City’s

modeling showed an inconsequential impact on the water bodies in

the vicinity of the NWWF and the NEWF that have designated MFLs,

and the City has agreed to include those water bodies in its

EMMP.

192. With respect to paragraph (e) of the rule (and

Section 4.4 of the BOR), the more persuasive evidence

establishes that the proposed withdrawals from the UFA are the

lowest quality water that the City can technically and

economically use, and it was stipulated that the proposed use

incorporates the use of alternative water supplies to the

greatest extent practicable. It would be cost-prohibitive for

the City to use other types of water (e.g. , brackish water) to

provide potable water to the customers of its water utility.

193. With respect to paragraph (f) of the rule (and

Section 4.5 of the BOR), it was stipulated that the proposed use

will not significantly induce saline water intrusion.

194. With respect to paragraph (g) of the rule (and

Section 4.6 of the BOR), the more persuasive evidence

establishes that with a 4.0 mgd limit on withdrawals from the

NEWF, the proposed use will not cause pollution of the aquifer.

The City’s modeling shows that the proposed pumping is not

likely to have any measurable impact on the contaminated sites

listed by DEP in the vicinity of the wellfields and there is no

evidence that the pumping will cause the contamination from any

of those sites to reach the aquifer.

195. With respect to paragraphs (h) and (i) of the rule

(and Section 4.8 of the BOR), the more persuasive evidence

establishes that with a 4.0 mgd limit on withdrawals from the

NEWF, the proposed use will not adversely impact offsite land

uses or existing legal users. There is no credible evidence

that the existing pumping at the NWWF or NEWF has caused adverse

impacts to offsite land uses or existing legal users, and the

draft permit attached to the District’s PRO includes adequate

mitigation measures in the event that such impacts occur.

196. With respect to paragraphs (j) and (k) of the rule

(and Sections 4.10 and 4.11 of the BOR), the more persuasive

evidence establishes that the City currently implements various

conservation measures, including reuse of treated wastewater for

cooling at its power plant, but that the City has not recently

explored whether it can do more reuse. A condition requiring

the City to study other potential conservation and reuse

opportunities should satisfy the District’s concerns that the

City is not doing enough conservation and reuse, and also

satisfy the applicable regulatory criteria.

197. With respect to paragraph (l) of the rule (and

Section 4.12 of the BOR), it was stipulated that the proposed

use will not cause water to go to waste.

198. With respect to paragraph (m) of the rule (and

Section 4.13 of the BOR), the more persuasive evidence

establishes that with a 4.0 mgd limit on withdrawals from the

NEWF, the proposed use will not “otherwise be harmful” to the

water resources within the District. This paragraph is a

“catch-all” provision, which encompasses issues that are not

listed in the other paragraphs of the rule. No such issues are

present in this case.

199. On balance, the City met its burden to provide

reasonable assurances for 4.0 mgd of withdrawals from the NEWF.

That is the quantity currently being pumped from the NEWF, and

the more persuasive evidence establishes that level of pumping

is not adversely affecting the onsite wetlands such that a

limitation of pumping to 1.5 mgd (as proposed by the District)

is warranted. Moreover, any impacts to the onsite wetlands

resulting from the pumping should be adequately mitigated by the

WIP, which, if properly implemented, is expected to restore and

enhance the functioning of the wetlands.

200. The more persuasive evidence establishes that the

EMMP proposed by the City, in conjunction with the other

monitoring conditions in the draft permit attached to the

District’s PRO satisfy the requirements of Sections 5.1 through

5.8 of the BOR. The extensive monitoring required by the EMMP

will provide the District sufficient data to assess the impacts

of the City’s pumping from the NEWF (and the NWWF) and to take

appropriate action if the impacts are greater than expected.

See Fla. Admin. Code R. 40D-2.381(2)(b).

201. The City did not provide reasonable assurances for

the requested 8.77 mgd of withdrawals from the NEWF. Even

though the evidence supported the City’s position that the

aquifer underlying the NEWF is not as “leaky” as the Disrict

contends, the evidence failed to establish that the predicted

drawdowns resulting from pumping the NEWF at a level of 8.77 mgd

would not cause unacceptable adverse impacts, even with the

mitigation proposed in the WIP.

202. In sum, the City provided the requisite reasonable

assurances for a six-year WUP with a total allocation of 29.5

mgd, including 4.0 mgd from the NEWF, subject the EMMP and WIP

attached to the City’s PRO and the other conditions included in

the draft permit attached to the District’s PRO.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the District issue WUP No. 2004912.006

with the terms and conditions contained in the draft permit

attached to the District’s PRO, except that:

1. The 2014 population referenced in the permit shall be

191,208;

2. The adjusted gross per capita rate shall not exceed 150

gallons per day;

3. Special Condition No. 2 shall be amended to authorize

withdrawals from the NEWF at 4.0 mgd annual average and 4.8 mgd

peak month, and the quantities listed in the Withdrawal Point

Table for the NEWF wells shall be adjusted accordingly;

4. Special Condition No. 4 shall be replaced with a

reference to the EMMP and the conceptual WIP attached to the

City’s PRO, and the list of monitoring stations in the EMMP

shall be amended to include Lake Bonny and Lake Bonnet; and

5. An additional specific condition shall be added

encouraging the City to pursue a WUP for the Combee site for

future water needs and/or for additional mitigation of the

impacts of pumping at the NEWF.

DONE AND ENTERED this 4th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January, 2008.

ENDNOTES

1 / All statutory references in this Recommended Order are to the

2006 version of the Florida Statutes. See Joint Prehearing

Stipulation, at 47 (“The parties agree that the statutes and

rules in effect at the time that the Petition for Administrative

Hearing was forwarded to the Division of Administrative Hearings

(January 30, 2007) apply to the Petitioner’s Water Use Permit

application.”).

2 / See City Exhibits 1(a)(1) through 1(a)(74) and 1(b)(1)

through 1(b)(3). See also Order to Show Cause entered on

October 18, 2007 (referencing the 4,800 page permit file

compiled by the District).

3 / The record supports this characterization of the proposed

permit. See , e.g. , City Exhibits 1(a)(61), 1(a)(64), 1(a)(65),

1(a)(68), 1(a)(73), and 1(a)(74); Transcript, at 1236-42. As a

result, very little weight has been given to the findings in the

proposed permit, the "routing sheet" prepared by District staff

recommending approval of the proposed permit (City Exhibit 170),

or the staff summary of the proposed permit presented to the

Governing Board (City Exhibit 1(b)(2), at 2396).

4 / These figures reflect average annual withdrawals. The

maximum peak month withdrawals authorized by the proposed permit

were 42.036 mgd total and 4.8 mgd from the NEWF.

5 / City Exhibit 1(b)(3) indicates that the Governing Board

approved the proposed permit on January 30, 2007, but it was

represented at the final hearing that the permit actually did

not come before the board as a result of the petition filed by

the City.

6 / See BOR § 4.2.A.2.b. But cf. District Exhibit 32A (e-mail

written by Joe Oros, the lead permit reviewer for the District,

which described the extent of his work on the City’s permit

application and stated that “the goal of reducing pumpage from

the [NEWF] and protecting the ‘Green Swamp’ will be achieved”).

7 / In making this finding, the undersigned did not overlook the

testimony of the District witnesses suggesting that the

extensive history of phosphate mining in Polk County and,

particularly, the Teneroc mine in close proximity to the NEWF

also contributed to the degraded condition of the wetlands at

the NEWF. The undersigned did not find that testimony

persuasive because, among other reasons, there is no evidence

that the condition of the wetlands has materially improved since

mining at the Teneroc mine ended more than 30 years ago.

8 / The City stated in its PRO (at paragraph 235) that it “is

prepared to collect any supplemental site-specific data needed

to finalize the technical parameters of the [WIP], and to apply

to the District for an ERP permit if it is determined that one

is required before the City can implement the [WIP].”

9 / The March 2003 BOR was received into evidence as District

Exhibit 3.

10 / The letter also states that “[s]ince the APT did not provide

usable aquifer parameters, pumpage from the [NEWF] is not

authorized.” See City Exhibit 31, at 0004. However, there is

no evidence that the District ever took formal action to modify

the 1993 WUP or to stop the City from pumping at the NEWF

pursuant to the authorization in the WUP. See also City Exhibit

1(a)(37) (authorizing the City to use water from the NEWF at the

existing permitted quantities for the start-up and performance

testing of Combee).

11 / In making this finding, the undersigned did not overlook the

“rate of decline” analyses prepared by District witnesses

Dr. Brian Ormiston and Dr. Scott Emery. However, as to

Dr. Ormiston’s analysis, the undersigned was not persuaded that

the sites he compared to the NEWF site were indeed comparable,

and as to Dr. Emery’s analysis, the undersigned was not

persuaded that the results of his analysis were statistically

significant.

12 / In making this finding, the undersigned did not overlook

Mr. Emery’s deposition testimony that 0.5 to 0.8 foot of

drawdown at the NEWF would be permittable, with mitigation.

However, Mr. Emery credibly testified at the final hearing that

he modified his opinion after getting additional information

about the current condition of the wetlands, including the

normal pool levels that showed that the wetlands were in worse

condition than he previously believed.

13 / The functional population takes into account the permanent

population as well as temporary populations, such as seasonal

residents, tourists, and commuters. See BOR § 3.6, at B3-25

through B3-27.

14 / Compare City Exhibit 1(a)(2), at 0036 (Table 2-3 of the WUP

application, column titled “population served”) with City

Exhibit 140, at 0077 (“historical estimates” column from the

March 2007 report).

15 / In making this finding, the undersigned did not overlook the

testimony of City witnesses Mary Hayes and Dr. David Depew that

the revised population projections do not “double count” the

population related to the new development. However, the

undersigned did not find that testimony persuasive.

16 / In making this finding, the undersigned did not overlook the

fact that the proposed permit states that an allocation of 35.03

mgd is necessary to serve a population of 232,003 in 2013.

However, it is clear from the record as a whole that the

proposed permit is not an admission by the District that the

35.03 mgd allocation is reasonable and necessary or that the

service area’s population will be 232,003 in 2013. See Endnote

3 and accompanying text. Indeed, by filing a petition

challenging the proposed permit, the City assumed the burden of

proving its entitlement to the entire 36.8 mgd it is seeking,

and not just the incremental difference between the 35.03 mgd in

the proposed permit and the 36.8 mgd.

17 / These figures were inferred from the contour maps in City

Exhibits 108 and 110.

18 / Section 3.6 of the BOR (page B3-23) allows significant users

to be deducted only if they are accounted for in a conservation

plan developed for the significant users and if a water survey

has been performed for each user that is deducted. The June

1998 conservation plan submitted by the City with its permit

application -– City Exhibit 1(a)(2), at 0142-0196 -- does not

appear to meet the requirements of the BOR. The record does not

reflect whether there is a more current plan that does meet the

requirements of the BOR. See Transcript, at 1883-84.

19 See City’s PRO, at ¶ 296 (“If the City makes a prima facie

showing of reasonable assurances, the burden of going forward

with the evidence shifts to the District to present evidence of

equivalent quality. The District cannot carry this burden by

presenting contrary evidence by mer speculation concerning what

‘might’ occur.” (Citations omitted)); District’s PRO, at ¶ 277

(“If the City satisfies its prima facie case of entitlement to

the permit requested, then the burden of presenting evidence

challenging this showing shifts to the District to refute the

City’s evidence.”).

COPIES FURNISHED :

David L. Moore, Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604-6899

Segundo J. Fernandez, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A.

301 South Bronough Street, Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

Joseph J. Ward, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604

Dominick J. Graziano, Esquire

Bush, Graziano & Rice, P.A.

Post Office Box 3423

Tampa, Florida 33601-3423

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.