15-003845 Tropical Audubon Society, Inc. vs. Florida Power &Amp; Light Company And South Florida Water Management District Status: Closed Recommended Order on Thursday, December 31, 2015.

Summary: Petitioner failed to prove that the proposed water use would cause harmful saline water intrusion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TROPICAL AUDUBON SOCIETY, INC.,

Petitioner,

vs. Case No. 15 - 3 845

FLORIDA POWER & LIGHT COMPANY

AND SOUTH FLORIDA WATER

MANAGEMENT DISTRICT,

Respondents.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case was held on October 13

and 14, 2015, in Miami, Florida, before Bram D.E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner Tropical Audubon Society , Inc. :

James M. Porter, Esquire

James M. Porter, P.A.

9350 South Dixie Highway, 10th Floor

Miami, Florida 33156

For Respondent Florida Power & Light Company :

Gary Perko, Esquire

Brooke E. Lewis, Esquire

Hopping Green and Sams, P.A.

119 South Monroe Street, Suite 300

Tallahassee, Florida 323 01

Peter Cocotos, Esquire

Florida Power & Light Company

215 South Monroe Street, Suite 810

Tallahassee, Florida 32301

For South Florida Water Management District:

Jennifer D. Brown, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

STATEM ENT OF THE ISSUE

The issue to be determined in this case is whether Florida

Power & Light Company (ÐFPLÑ), is entitled to a water use permit

issued by the South Florida Water Management District

(ÐDistrictÑ) to withdraw water for use at FPLÓs Turkey Poin t

P ower P lant in Miami - Dade County.

PRELIMINARY STATEMENT

On June 1, 2015, the District provided notice of its intent

to issue Individual Water Use Permit No. 13 - 05856 - W to FPL.

Petitions for administrative hearing challenging the proposed

permit were fi led by Atlantic Civil, Inc. , on June 22, 2015, and

by Tropical Audubon Society , Inc. (Ð Tropical Audubon Ñ) , on

June 23, 2015. The District referr ed the two cases to DOAH where

they were consolidated for hearing .

Respondents filed motions to strike portion s of the two

petitions and they were granted with respect to provisions of the

petitions for hearing which claim the proposed water use cannot

be authorized except in a proceeding held pursuant to the Power

Plant Siting Act (ÐPPSAÑ).

On September 14, 2015 , A tlantic Civil, Inc. , voluntarily

dismissed its petition for hearing and Case No. 15 - 3844 was

closed .

At the final hearing, o fficial recognition was taken of the

Florida Department of Environmental ProtectionÓs (ÐDEPÑ)

Administrative Order of December 2 3, 2014 (OGC No. 14 - 0741),

Florida Administrative Code C hapter s 40E - 2 and 40E - 10, and the

ApplicantÓs Handbook for Consumptive Use Permit Applications

within the South Florida Water Management District (ÐApplicantÓs

HandbookÑ). Joint Exhibits J - 1 through J - 6 w ere admitted into

evidence.

Tropical Audubon presented the testimony of Laura Reynolds,

Tropical Audubon Ós Executive Director ; Thomas E. Lodge, Ph.D.,

accepted as an expert in coastal ecology; Kirk Martin, P.G.,

accepted as an expert in groundwater h ydrology ; Phillip Coram, an

Environmental Administrator with DEP , and Jefferson Giddings,

Princip al Scientist with the District. Tropical Audubon Exhibits

T 2, T 12, T 14 - T16, and T 20 were admitted into evidence.

FPL presented the testimony of Steven Scrogg s , accepted as

an expert in power plant engineering, design and operation ; and

W. Scott Burns, P.G. accepted as an expert in groundwater

hydrology and groundwater flow and transport. FPL E xhibits FPL 1 -

FPL6, FPL8 , FPL 10, and FPL 20 - FPL23 were admitted into evidence.

The District presented the testimony of Simon Sunderland,

P.G., DistrictÓs Section Leader for Lower East Coast Planning,

Permitting, and Compliance ; and Steven Memberg, P.G., the

District Ós Chief Scientist. District Exhibits D 1 - D 4 and D 13 were

admitted into evidence.

RespondentsÓ Joint Exhibits R - 2 and R - 4 were admitted into

evidence .

The three - volume T ranscript of the final hearing and the

transcript of the August 21, 2015, motion hearing were filed with

DOAH. The parties filed proposed rec ommended orders that were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

opical Audubon is a Florida not - for - profit corporation

i ncorporated more than one year prior to the date FPL filed its

permit application . Tropical Audubon was formed for the purpose

of protectin g the environment, fish and wildlife resources, and

air and water quality. Its mission is to Ðconserve and restore

South FloridaÓs ecosystems, focusing on birds, other wildlife and

their habitats for the benefit of humanity and the earthÓs

biological diversity.Ñ

2. Tropical Audubon has approximately 465 members . M ore

than 25 reside in Miami - Dade County. A substantial number of

Tropical Audubon Ós members use the area near Turkey Point for

recrea tional activities, including wildlife observation.

3. The District is a multi - purpose water management

district with powers and duties set forth in c hapter 373, Florida

Statutes, and Florida Administrative C ode Chapters 40E and 62 -

40.410, including power s and duties related to the regulation of

consumptive uses of water. Its principal office is located at

3301 Gun Club Road, West Palm Beach, Florida.

4. FPL is a regulated public utility which provides

electric service to its customers in 35 Florida cou nties. FPL

owns and operates the Turkey Point P ower P lant, an electric power

generating facility located in unincorporated southeastern Miami -

Dade County and within the boundaries of the District .

Background

5. FPLÓs Turkey Point property is located 25 miles south of

Miami and is situated on the coastline adjacent to Biscayne Bay.

The property covers a bout 9,400 acres.

6. The Turkey Point Power Plant consists of five electric

generating units. Units 1 and 2 are gas and oil - fired boilers .

Unit 2 has been decommissioned. Units 3 and 4 are nuclear units.

Unit 5 is a combined cycle gas turbine unit.

7. Construction of U nits 1, 2, 3 , and 4 , as well as the

Turkey Point Cooling Canal System (ÐCCSÑ), predated the enactment

of the PPSA. However, Units 3 and 4 were certified under the

PPSA in 2008 when they were uprate d to increase the ir steam -

electric generating capacity. Unit 5 was certified under the

PPSA in 2005 .

8. Units 1 and 2 originally used once - through cooling,

which involved taking water from Biscayne Bay and discharging it

back into the Bay. In 1971, following a lawsuit brought by the

U.S. Department of Justice, FPL signed a Consent Decree tha t

required FPL to construct the CCS, a closed - loop cooling canal

system, to eliminate heated, surfac e water discharges to Biscayne

Bay and Card Sound.

9. T he CCS is a 5,900 - acre network of canals which

dissipate heat from the water used in the operation of Units 3

and 4, as well as Unit 1 when in operation.

10. The CCS functions like a large radiator , which uses

evaporation, convective heat transfer, and radiated heat loss to

lower the water temperature. Circulating water pumps provide for

counter - clockwise flow of water from the discharge canal , down

through the western side of the CCS, and then bac k up the eastern

side of the CCS to the power plant. The full circuit from

discharge to intake takes a bout 48 hours.

11 . The CCS does not directly discharge to surface water ,

but water can enter or leave the CCS by g roundwater seepage

because the canals are not lined. Additions of w ater into the

CCS include plant process water, rainfall, stormwater runoff, and

groundwater seepage .

12. In addition to the Consent Decree, FPL entered into an

agreement with the DistrictÓs predecessor agency in 1972 to

add ress the operation of the CCS. The agreement has been updated,

with the most recent version being the Fifth Supplemental

Agreement , executed in 2009.

13. Pursuant to the Fifth Supplemental Agreement, FPL

implemented an extensive surface water and ground water monitoring

program in and around the CCS. Since 2010, FPL has collected

monitoring data for water levels, fluid density, salt

concentrations, and conductivity from 42 groundwater monitoring

wells. FPL also collects water level data at seven locatio ns

within the CCS on an hourly basis.

14. In 2013 and 2014, monitoring data showed water quality

decreased in the CCS, with increased salinity, algae bloom s , and

suspended solids in the water. D ecreased water quality reduced

heat dissipat ion, so water t emperatures increased .

15. FPL was authorized by the Nuclear Regulatory Commission

(NRC) to operate the CCS with water temperatures as high as 100

degrees Fahrenheit (F). In 2014, water temperatures exceeding

100 degrees caused plant shutdowns. As a re sult, FPL requested

and t he NRC allowed the maximum operating temperature of CCS

water to be raised to 104 degrees .

16. Higher water temperatures cause more evaporation and

because the evaporation of water leaves its salt content behind,

the salinity of the water in the CCS increased.

17. Water in the CCS bec a me Ð hypersaline ,Ñ having chloride

concentrations greater than 3 5 Practical Salinity Units (PSU) ,

which is the average salinity of seawater. Because hypersaline

water is denser and heavier than the naturally occurring

groundwater, it sinks down through the CCS canals into the

Biscayne Aquifer and down through the a quifer to a confining

layer that separates the Biscayne Aquifer from the Floridan

Aquifer, a bout 80 feet below the CCS .

18. When the hype rsaline water reaches the bottom of the

Biscayne Aquifer, it moves laterally in all directions. However,

the primary focus of the District and the DEP has been on the

western movement of the hypersaline water because of the

potential harm to existing lega l uses of water and offsite land

uses to the west. The hypersaline Ð plume Ñ has migrated two t o

three miles west of the CCS .

19 . In August 2014, FPL requested and the District issued

an emergency order to withdraw water from the L - 31E C anal and

discharge it to the CCS to reduce salinity and temperature . FPL

withdrew water over a 21 - day period in September and October , an

average of 43 mgd, and observed reduction s in salinity, algae

blooms, and temperatures within the CCS. With the combina tion of

rainfal l and water from the L - 31E Canal , CCS salinity levels were

reduced by about 20 practical salinity units (PSU ) .

2 0 . When the proposed permit that is the subject of this

case was challenged, FPL sought and obtained another emergency

order t o use water from the L - 31E Canal during the 2015 rainy

season (June 1 to November 30).

2 1 . Use of water from the L - 31E Canal in 2015 reduce d

temperature and salinity levels in the CCS. Salinity declin ed

from 95 PSU to 60 PSU.

2 2 . On December 23, 2014, the D EP issued a n Administrative

Order ( Ð AO Ñ ) which, among other things, directs FPL to submit a

Salinity Management Plan with the primary goal of Ðreduc[ing] the

hypersalinity of the CCS to abate westward movement of CCS

groundwater into class G - II groundwaters of the St ate.Ñ

The Proposed P ermit

2 3 . FPL applied for the water use permit at issue in this

case so it could continue to use water from the L - 31E Canal for

reducing temperature and salinity in the CCS.

2 4 . The proposed water use permit would authorize FPL to

pump up to 100 million gallons per day during the period June 1

through November 30 in 2015 and 2016. 1/

2 5 . The permit prohibits withdrawals during the June

through November period if they would interfere with the water

reservation for Nearshore Central Biscayne Bay , which was

established by Florida Administrative Code R ule 40E - 10.061 .

26 . T he proposed project involves installation of three

pumps and pipes to transfer water from the L - 31E N orth C anal to

the L - 31E Canal where it would flow south to a poi nt where two

pumps would withdraw the water and discharge it through two pipes

into the CCS.

27 . The permit would allow FPL to withdraw up to 100

million gallons per day (ÐmgdÑ). The proposed permit does not

identify temperature or salinity objectives, but FPL would be

required to submit weekly water temperature and salinity data to

demonstrate that the water use is reducing the temperature and

salinity of the water within the CCS.

28 opical Audubon contends the proposed project is not

entitled to a permit because it would harm the natural resources

of Biscayne Bay, would increase saltwater intrusion, is not

limited to the amount of water needed, and is inconsistent with

the 2008 Certification Order and the 2014 AO.

Biscayne Bay

29 . Biscayne Bay w as a tidal estuary before human changes,

as described above, reduced freshwater inflows to the Bay. Now

the Bay has salinity levels characteristic of a marine lagoon.

3 0 . Salinity levels historically varied across Biscayne

Bay, but now the salinity leve ls are higher.

3 1 . The species richness of Biscayne Bay has been reduced

by the reduction of freshwater inflows; that is, the observed

numbers of some animals and the areal extent of some plants have

been reduced.

3 2 . The reservation of water for Nears hore Central Biscayne

Bay is for a geographic area which generally follows the

shoreline along Biscayne Bay and extends 500 meters from the

shoreline. It is a small fraction of the total area of the Bay.

3 3 . Tropical Audubon stipulated that FPLÓs propos ed water

use would not interfere with the water reservation for Nearshore

Central Biscayne Bay, but it contends the reservation does not

account for all of the freshwater needs of the Bay.

3 4 . Tropical AudubonÓs expert, D r. Lodge, suggested that

the area l extent of Ðlower salinity grass bedsÑ would increase

with fresh water inputs exceeding the water reservation, which

would benefit the species that use these grass beds.

3 5 . Neither the reservation rule nor the evidence presented

by Tropical Audubon ind icates what amount of freshwater is needed

for all of Biscayne Bay. Tropical AudubonÓs position is simply

that more freshwater flow into Biscayne Bay is better than less

and FPLÓs proposed water withdrawal from the L - 31E Canal will

result in less freshwat er reaching Biscayne Bay.

36 . Respondents stipulated that a substantial number of

Tropical AudubonÓs members have substantial interests in

recreational uses in and near Biscayne Bay, but Respondents did

not stipulate that the proposed project affected th ose interests.

37 opical Audubon presented little evidence to

demonstrate the proposed water use could affect its membersÓ

substantial interests. Instead, it devoted almost all of its

efforts at the final hearing and in its proposed recommended

order to addressing matters that would not affect Tropical

AudubonÓs members, such as saltwater intrusion or inconsistency

with the Certification Order.

38 . Tropical AudubonÓs three - part proposition for harm to

the substantial interests of its members is that (1) taking fresh

water out of the L - 31E Canal will deprive Biscayne Bay of fresh

water that would otherwise flow to the Bay; (2) there will be a

resulting reduction in the biological health of the Bay ; and (3)

the reduction in biological health will be no ticed by Tropical

AudubonÓs members and will materially diminish their recreational

enjoyment of the Bay.

39 . However, Dr. Lodge, was unable to say what effect FPLÓs

proposed water use ( in two wet seasons ) would have on the Bay.

The effect could be de m inimis. It could be undiscernible to a

member of Tropical Audubon who is recreating on or near the Bay.

4 0 opical Audubon failed to prove the proposed water use

would have more than a de minimis effect on the environmental

resources of Biscayne Bay. Therefore, it failed to prove non -

compliance with any District permit requirement applicable to

protection of Biscayne Bay and its natural resources .

Saline Water Intrusion

4 1 . Section 3.4 of t he ApplicantÓs Handbook requires that a

water withdrawal mu st not cause harmful saline water intrusion.

42. The saline water interface is generally where

groundwater with greater than 10,000 milligrams per liter total

dissolved solids (Ðmg/L TDSÑ) meets groundwater with less than

10,000 mg/L TDS.

43 . Because DEP classifies groundwater with less than

10,000 mg/L TDS as G - II groundwater and groundwater with greater

than 10,000 mg/L TDS as G - III groundwater, the saline water

interface can also be described as the interface between G - II and

G - III groundwater.

44 . Th e location of the saltwater interface is affected by

many factors, such as rainfall. ÐSaltwater intrusionÑ usually

describes the human - induced landward movement of the saline water

interface that has resulted from drainage structures, fresh water

withdraw als, and other activities that have reduced the volume

and, therefore, reduced the ÐpushÑ of fresh groundwater toward

the coast.

45 . Saltwater intrusion is considered harmful to water

resources in large part because of its effect on land uses.

Saltwater intrusion prevents or makes significantly more

difficult future land uses that typically require withdraw and

use of fresh groundwater, such as agriculture. For existing land

uses that rely on withdraw of fresh groundwater, saltwater

intrusion Ðcontaminat esÑ the water supply and can make the land

uses no longer practicable.

46. The hypersaline plume e x tends two or three miles west

of the CCS and continues to move westward. It is pushing the

saline water inter f ace, which is now four or five miles west of

the CCS, futher west. The saline water interface is moving

westward at the rate of 4 00 to 600 feet per year.

47. T he CCS is causing harmful saline water intrusion. The

factual dispute in this proceeding is whether the proposed use of

water from the L - 31E Canal increases the current intrusion

problem.

48. The parties also have a legal dispute about the scope

of the DistrictÓs review regarding saline water intrusion:

whether the DistrictÓs review is confined to the impacts of the

withdrawal, itself, o r whether the District must also consider

the impacts of the use of the w ater after the withdrawal

(discharging it into the CCS).

49. T he criteria in the ApplicantÓs Handbook focus the

DistrictÓs review on the effects of a proposed withdrawal. With

rega rd to saline water intrusion, the District evaluates whether

the withdrawal will cause lateral or vertical migration of saline

water . The District determined that FPLÓs withdrawal from the L -

31E Canal would not cause the migration of saline water . That

d etermination was not disputed by Tropical Audubon .

opical Audubon contends the District must also

determine whether FPLÓs use of the water -- discharging it into the

CCS -- would cause harmful saline water intrusion by pushing the

saline water interfac e more landward.

51. The District permit reviewer testified that, in

determining whether FPLÓs proposed project was consistent with

the public interest, he considered the expected benefits of

lowering salinity and temperature in the CCS, as well as reduc ing

the hypersaline plume and its impacts on saline water intrusion . 2 /

As explained in the Conclusions of Law, this analyses is required

to determine whether FPLÓs proposed water use is consistent with

the public interest.

52. FPL used a water/salt budg et model for the CCS to

quantify the volume of water and mass of salt entering and

exiting the CCS over time. The water/salt budget model was run

for dry and average weather conditions and multiple withdrawal

rates. In each scenario, the model results sh owed that the

greater the volume of water pumped into the CCS, the greater the

reduction of salinity in the CCS.

53. T he District performed groundwater model ing which

showed that freshening of the groundwater would occur rapidly in

the upper portion of t he Biscayne aquifer near the CCS. T he

model showed no adverse impacts and some slight improvements in

water quality in all areas except for one temporary effect at one

monitor well.

54. Based on modeling results and monitoring well data, it

was the opini on of t he DistrictÓs principal scientist,

Mr. Giddings, that the addi tion of water from the L - 31E Canal

would not increase the western movemen t of the saline interface.

FPLÓs expert hydrologist, Mr. Burns, agreed .

opical Audubon Ós expert hydrogeol ogist, Mr. Martin,

opined that the addition of L - 31E water into the CCS w ould

increase the westward migration of the hypersaline water i n the

Biscayne A quifer and the saline water interface . It was his

opinion that th e addition of freshwater into the CCS w ould

increase the water levels and the Ðdriving headÑ within the CCS

and thereby increase the downward push against the hypersaline

plume, pushing it westward at a greater rate. Mr. Martin did not

know what the increase in the rate of western movement wo uld be.

56. Mr. Martin conducted no modeling or other analysis to

substantiate his opinion about the increase in driving head, and

it appeared he did not take into account how the driving head

would be affected by reducing the density of the water in the

CCS. Reducing the density of the water w ould offset the effects

of raising the water level.

57. Mr. MartinÓs opinion that adding water from the L - 31E

Canal would push the saline water interface westward was also

based on his assumption that the fresher water moving downward

from the CCS would not mix with the hypersaline water . However,

this opinion was not supported by modeling as was the contrary

opinion s of M r. Giddings and Mr. Burns .

58. M onitoring data collected during the period in which

FPL ha s added fresher water to the CCS indicates that mixing is

occurring and that head differences in the CCS do not appear to

affect chloride levels at distance .

59. FPL provided reasonable assurance that the proposed

water use would not increase the rate of saline water intrusion.

Existing Legal Use s, Offsite Land Uses, and Pollution

60 opical Audubon does not contend the withdrawal of

water from the L - 31E Canal would interfere with existing legal

uses of water, adversely affect off - site land uses, or c ause

pollution. However, similar to its claim regarding harmful

saline water intrusion, Tropical Audubon claims the proposed

discharge of the water into the CCS would interfere with existing

legal uses of water, harm offsite land uses, and cause pollution .

These claims are derived from Tropical AudubonÓs belief that

discharging freshwater in to the CCS would increase the rate of

saline water intrusion. Because Tropical Audubon failed to prove

the proposed w ater would increase sal ine water intrusion , there

is no need to address the derivative claims .

Conflict w ith the Conditions of Certification

6 1 opical Audubon asserts that the proposed water use is

inconsistent with the DEP National Pollution Discharge

Elimination System (Ð NPDES Ñ) permit for the Tu rkey Point Plant

and with the Fifth Supplemental Agreement between FPL and the

District. As explained in the Conclusions of Law, it is normally

beyond the scope of a permit proceeding to claim the conditions

of another permit would be violated. However, because the NPDES

permit and the Fifth Supplemental Agreement are incorporated into

or addressed in the 2008 Certification Order for Turkey Point,

and the PPSA preempts all other environmental permitting

associated with an electric power plant, it is relev ant in this

proceeding to determine whether the proposed water use would

conflict with the conditions of certification for the Turkey

Point Power Plant .

6 2 . It is also explained in the Conclusions of Law that the

Administrative Law JudgeÓs consideration of potential conflict

must be based on a conflict ascertainable from the plain meaning

of the Certification Order, NPDES permit, and Fifth Supplemental

Agreement.

6 3 . There has been no determination of conflict by the

Siting Board or DEP. In fact, DEP h as determined there is no

conflict between the proposed water use permit and the NPDES

permit.

6 4 . The fact that the NPDES permit describes the CCS as a

closed - loop system does not create an irreconcilable conflict.

The requirement for a closed - loop sys tem was to terminate a

system that had surface discharges of heated water to Biscayne

Bay and replace it with a system that circulates water through

the power plant with no surface discharges to the Bay. The CCS

would still be a closed - loop system with th e additions of water

from the L - 31E Canal because it would still have no surface

discharges to Biscayne Bay.

6 5 . The fact that the NPDES permit does not mention the

discharge of water from the L - 31E Canal into the CCS does not

create an irreconcilable co nflict. The NPDES permit also does

not address rainfall inputs to the CCS. The NPDES permit

addresses industrial waste inputs. Water from the L - 31E Canal,

like rainwater, is not a waste input.

6 6 . The fact that the CCS will operate differently with th e

addition of L - 31E water does not create an irreconcilable

conflict. The manner in which water from the L - 31E Canal would

change the operation of the CCS is not different from the way

variable rainfall constantly changes the operation of the CCS.

6 7 . Th e NPDES permit does not specifically prohibit the

introduction of other water into the CCS.

6 8 . DEP determined that the addition of L - 31E water would

not require a modifi cation of the NPDES permit because it would

not change the effluent limits or monito ring requirements of the

permit.

6 9 opical Audubon asserts that the proposed permit is

inconsistent with the Fifth Supplemental Agreement between the

District and FPL . It points to a requirement in the agreement to

Ðoperate the interceptor ditch syst em to restrict movement of the

water from the cooling water system westward of Levee 31 E

adjacent to the cooling water system to those amounts which would

occur without the existence of the cooling canal system. Ñ

70 . The interceptor ditch is a ditch runn ing along the

western border of CCS, which was intended to intercept

hypersaline groundwater and prevent it from moving further

westward. It has failed to prevent the western movement of

hypersaline water.

7 1 opical Audubon did not show the proposed w ater use

would affect the operation of the interceptor ditch. Therefore,

Tropical Audubon failed to prove there is an irreconcilable

conflict between the proposed water use permit and the Fifth

Supplemental Agreement.

Conflict with t he DEP Administrative Order

7 2 opical Audubon asserts that the proposed permit is

inconsistent with an AO issued by DEP in December 2014 to address

CCS salinity issues . However, the AO is not yet in effect and is

not a part of the 2008 Certification Order. As explained in the

Conclusions of Law, FPLÓs compliance with the AO cannot be made a

condition of compliance with the proposed water use permit.

7 3 . Furthermore, Tropical Audubon failed to demonstrate

there is a conflict between the AO and the proposed water use.

Sum mary

7 4 . In summary, FPL provided reasonable assurance that the

proposed water use would comply with all applicable permit

criteriaopical Audubon did not meet its burden to prove

otherwise.

CONCLUSIONS OF LAW

Standing

7 5 opical Audubon has stan ding to bring this challenge

under s ection 403.412(6), Florida Statutes .

7 6 opical Audubon offered competent evidence to show how

the substantial interests of its members could be affected, which

is sufficient to establish association standing under ch apter

120. See St. Johns Riverkeeper, Inc. v. St. Johns River Water

Mgmt. Dist. , 54 So. 3d 1051, 1054 (Fla. 5th DCA 2011); Fla.

Homebuilders AssÓn, Inc. v. DepÓt of Labor and EmpÓt Servs. , 412

So. 2d. 351 (Fla. 1982). However, Tropical Audubon failed to

show by a preponderance of the evidence that its members would be

adversely affected.

Nature of the Proceeding

7 7 . This is a de novo proceeding, intended to formulate

final agency action and not to review action taken earlier and

preliminarily . McDonald v. Dep't of Banking & Fin. , 346 So. 2d

569, 584 (Fla. 1st DCA 1977).

7 8 . An a pplicant is entitled to a water use permit if it

provide s reasonable assurance that it will comply with all

applicable permitting criteria. The term Ðreasonable assuranceÑ

means Ða substantial likelihood that the project will be

successfully implemented.Ñ Metro. Dade Cnty. v. Coscan Fla .,

Inc . , 609 So. 2d 644, 648 (Fla. 3d DCA 1992). It does not mean

absolute guarantee s.

Burden and Standard of Proof

7 9 . Because Tropical Audubo n has challenged a water use

permit issued under c hapter 373, Florida Statutes, the procedure

described in section 120.569(2)(p), Florida Statutes, is

applicable , which places the burden of ultimate persuasion upon

the challenger after the permit applicant has introduced the

permit file constituting the prima facie case.

80 . The standard of proof is a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat. (2015).

P ermit Criteria

8 1 . Section 373.223(1) provides that Ð[t]o obtain a permit

pursuant t o the provisions of this chapter, the applicant must

establish that the proposed use of water: (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.Ñ

8 2 . The District implements section 373.223(1) via rule

40E - 2.301 (1) , which provides in relevant part as follows:

In order to obtain a permit , permit renewal,

or permit modification under this chapter, an

applicant must give reasonab le assurances

that the proposed water use at the time the

permit application is deemed complete:

(a) Will not cause harmful saline water

intrusion;

(b) Will not harm offsite land uses;

(c) Will not cause harm to wetlands or other

surface waters;

(d) Will not cause pollution of the water

resources;

(e) Is otherwise a reasonable - beneficial use

as defined in Section 373.019(13), F.S., with

consideration given to the factors set forth

in Rule 62 - 40.410, F.A.C.;

( f) Will not interfere with presently

existing legal uses;

* * *

(j) Is consistent with Sections 373.016 and

373.036, F.S., and otherwise is consistent

with the public interest as prescribed by

Chapter 373, F.S., and this chapter.

8 3 . T he District further implements the requirements of

c hapter 40E - 2 .301 via the ApplicantÓs Handbook, which is

incorporated by reference in rule 40E - 2.091(1).

Water Quantity

8 4 opical Audubon argues that FPL failed to demonstrate

its need for the amount of water requested, up to 100 mgd,

because FPL did n ot identify any salinity or temperature goals in

the CCS. However, this is a unique situation in which the

withdrawal is limited to two wet seasons and the mitigative

effects on saline water intrusion increase with increased

freshwater volumes. It is not unreasonable for the District to

allow the 100 mgd withdrawal and to require monitoring of the

effects on salinity in the CCS and on saline water intrusion in

the Biscayne Aquifer.

Saline Water Intrusion

8 5. Tropical Audubon Ós primary claim is that the proposed

water use should be denied because the discharge into the CCS

would cause harmful saline water intrusion. The District argues

that its review of this criterion, as well as criteria regarding

interference with existing legal uses of water, harm to offsite

land uses , and pollution, is confined to the impacts of the

withdrawal, itself, and not the use of the water by the permittee

after the water is withdrawn.

8 6 opical Audubon points to language in rule 40E - 2.301

and elsewhere which it believes requires the District to consider

the impacts of the intended water use, not just the withdrawal.

8 7 . The District defin es the term Ðwater useÑ as ÐAny use

of water which reduces the supply from which it is withdrawn or

diverted . Ñ ApplicantÓs Handbook, £ 1.1. Even this definition of

water ÐuseÑ reflects a focus on the water withdrawal , rather than

on how the water is used by the permittee .

8 8 . Section 3.4 of the ApplicantÓs Handbook is intended to

implement the criteria in rule 40E - 2.301 with respect to saline

water intrusion. Section 3.4 defines saline water intrusion in a

manner that shows it relates to the potential of the water

withdrawal to affect saline water movement. Section 3.4 does not

address the potential effect of the permit applicantÓs in tended

use of the water on saline water intrusion.

8 9 . The same focus on the withdrawal of water is contained

in the sections of the ApplicantÓs Handbook that pertain to the

impacts on existing legal uses, offsite land uses, and pollution.

The DistrictÓs interpretation of these rules has not been

invalidated in any rule challenge proceeding. Nor has DEP

determined that the criteria in the ApplicantÓs Handbook are

inconsistent with state water policy pursuant to DEPÓs authority

under rule 62 - 40 to review all water management rules for

consistency with state water policy.

9 0 . An agencyÓs interpretations of the statutes it is

charged with implementing, and of its own rules, are entitled to

deference. See Fla. DepÓt of Rev . v. Fla. Mun. Power Agency , 789

So . 2d 320, 323 (Fla. 2001); Falk v. Beard , 614 So. 2d 1086, 1089

(Fla. 1993).

9 1 . Nevertheless, i t is clear that the statutory

requirement that water uses be Ðreasonable - beneficialÑ is

directed to more than the withdrawal of water. ÐReasonable -

beneficialÑ is defined in 373.019(16) to require that the

ÐpurposeÑ of the use be both reasonable and consistent with the

public interest. See also Maloney, Ausness, and Morris, A Model

Water Code 170 - 173 (1972)(explaining the authorsÓ intent in

creating the reasona ble - beneficial standard). The ÐbeneficialÑ

element of the reasonable - beneficial standard is related to the

use of the water after it is withdrawn. There is no benefit

associated with just the withdraw al of water .

9 2 . Consistency with the public interest is a part of the

reasonable - beneficial use standard and is the third prong of the

Ðthree - prong testÑ in section 373.223.

9 3 . Reducing the hypersaline plume and its impacts on

saline water intrusion was expressly identified at the final

hearing and in the DistrictÓs proposed recommended order as a

basis for the DistrictÓs determination that the proposed water

use was consistent with the public interest. It follows

logically that, if FPLÓs proposed water use would have the

opposite effect -- increasing the h ypersaline plume and its impacts

on saline water intrusion -- the District could not have determined

that the water use was consistent with the public interest.

Untenable is the proposition that chapter 373 and the rules of

the District do not enable the Di strict to prevent foreseeable

harm to the water resources that will be caused by an applicantÓs

use of water.

9 4 . However, Tropical Audubon failed to demonstrate that

the proposed water use would cause harmful saline water

intrusion . Tropical Audubon did not prove the existing intrusion

problem would be made worse by the proposed water use .

Conflict with the Conditions of Certification

9 5 . Through the PPSA, the State preempts the regulation of

electrical power plant sites. See § 403.510(2), Fla. Stat. The

operation of a power plant is only subject to the conditions of

certification. See § 403.511(2)(a), Fla. Stat. Modifications to

the conditions of certifications can only be made pursuant to the

PPSA. See § 403.516, Fla. Stat.

9 6 . The District argue d that a conflict with the

Certification Order cannot be a consider ed by the District in its

review of FPLÓs proposed water use. It cited legal cases holding

that entitlement to a permit cannot be based on compliance with

the criteria applicable to anothe r agencyÓs authorization . E.g. ,

Council of the Lower Keys v. Charley Toppino & Sons, Inc. , 429

So. 2d 67 (Fla. 3d DCA 1983).

9 7 . However, this proceeding presents a different and

unique situation because of the legislative mandate that only one

authoriza tion -- a site certification order -- shall govern the

operation of a power plant. A certification order Ðshall be in

lieu ofÑ any water use permit required by chapter 373. See

§ 403.511(3), Fla. Stat.

9 8 . In an Order issued August 28, 2015, the Administrat ive

Law Judge ruled that:

Section X of the conditions of certification

establishes Ðthe framework for new monitoring

[of the impacts of the CCS on water

resources] and, as may be needed, abatement

and mitigation measures, for approval of

FPLÓs Turkey Point Units 3 and 4 Uprate

Applications.Ñ The framework is a condition

of certification and, therefore, has

preemptive effect. The framework cannot be

changed except in a PPSA proceeding.

Pursuant to Section X, the framework for

monitoring and mitigating CCS impacts calls

for the approval of monitoring and mitigation

measures by the District, following

consultation with DEP and Miami - Dade County.

The proposed consumptive use permit conforms

with the framework and implements the

conditions of certification.

99 . The August 28, 2015 Order was, in essence, a ruling

that issuance of the proposed water use permit to FPL was not a

per se violation of the PPSA. However, remaining to be

determined was Tropical AudubonÓs claim that the water use permit

is inconsiste nt with DEPÓs NPDES permit and, therefore, would be

in conflict with the conditions of certification.

10 0 . There are no reported cases that have dealt with the

specific issue of how an alleged conflict with conditions of

certification is to be resolved. Tropical AudubonÓs claim that

the proposed water use permit conflicts with DEPÓs NPDES permit

should entail a more limited review by the Administrative Law

Judge than the review that would be conducted in a typical permit

proceeding in which DEP is a party and will issue the final order

with respect to its own permit. The review here should be akin

to the review that an Administrative Law Judge can make of real

property instruments when they are relevant in an administrative

proceeding to show colorable ri ghts or standing ; that is, the

review is limited to determining what is indicated by the plain

meaning of the instrument. See e.g. , Bonnie Conklin v. Putnam

Cnty . , Case 09 - 3597GM, ¥ 61 (DOAH RecÓd Order Dec. 24, 2009). If

this limited review is insuffici ent to resolve a dispute about

the intent or effect of the instrument, then the party with the

burden to establish the intent or effect has failed to meet its

burden of proof .

10 1 . In this case, DEP determined that the proposed water

use permit creates no conflict with the NPDES permit and Tropical

Audubon failed to show there is a irreconcilable conflict.

10 2 opical Audubon also failed to establish any

irreconcilable conflict with the Fifth Supplemental Agreement.

Conflict with DEPÓs Administrative Or der

10 3 . The AO is not a part of the 2008 Certification Order.

FPLÓs compliance with DEPÓs AO is not a relevant consideration in

determining FPLÓs entitlement to the District permit. See

Council of the Lower Keys , supra .

RECOMMENDATION

Based on the fo regoing Findings of Fact and Conclusions of

Law it is

RECOMMENDED that South Florida Water Management District

issue a f inal o rder that grants the proposed Individual Water Use

Permit (No. 13 - 05856 - W) to Florida Power & Light Company .

DONE AND ENTE RED this 31st day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December , 2015 .

ENDNOTE S

1/ The withdrawal in 2015 w as prevented by th is permit challenge.

2/ T ropical Audubon asserts that that the District did not

consider the effect on saline water intrusion in its public

interest analysis, but Mr. Sunderland testified otherwise at pp.

209 - 210.

COPIES FURNISHED:

James M . Porter, Esquire

James M. Porter, P.A.

9350 South Dixie Highway , 10th Floor

Miami, Florida 33156

(eServed)

Peter Cocotos, Esquire

Florida Power & Light Company

215 South Monroe Street, Suite 810

Tallahassee, Florida 32301

(eServed)

Erin L. Deady, Esquire

Erin L. Deady, P.A.

1111 Hypoluxo Road, Suite 207

Lantana, Florida 33462

(eServed)

Gary Perko, Esquire

Brooke E. Lewis, Esquire

Hopping Green and Sams, P.A.

119 South Monroe Street , Suite 300

Tallahassee, Florida 3230 1

(eServed)

Carlyn H. Kowalsky, Esquire

South Florida Water Managemen t District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Jennifer D. Brown, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Blake C. Guill ory, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416 - 4680

Kirk Burns, General Counsel

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416 - 4680

(eServed)

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 Orde r in this case.