02-001122 Sumter Citizens Against Irresponsible Development, Inc.; Kenneth Roop; And Aubrey Varnum vs. Southwest Florida Water Management District And North Sumter Utility Company
 Status: Closed
Recommended Order on Monday, June 24, 2002.


View Dockets  
Summary: Applicants have given reasonable assurances and complied with all applicable criteria with result that water use, irrigation, and environmental resource permits should be issued.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SUMTER CITIZENS AGAINST )

12IRRESPONSIBLE DEVELOPMENT, )

15INC.; KENNETH ROOP; and AUBREY )

21VARNUM, )

23)

24Petitioners, )

26)

27vs. ) Case No. 02 - 1122

34)

35SOUTHWEST FLORIDA WATER )

39MANAGEMENT DISTRICT and NORTH )

44SUMTER UTILITY COMPANY, )

48)

49Respo ndents, )

52)

53and )

55)

56THE VILLAGES WATER CONSERVATION )

61AUTHORITY, L.L.C., )

64)

65Intervenor. )

67)

68SUMTER CITIZENS AGAINST )

72IRRESPONSIBLE DEVELOPMENT, )

75INC.; KENNETH ROOP; AUBREY )

80VARNUM; and T. DANIEL )

85FARNSWORTH, )

87)

88Petitioners, )

90)

91vs. ) Case No. 02 - 1123

98)

99SOUTHWEST FLORIDA WATER )

103MANAGEMENT DISTRICT and THE )

108VILLAGES OF LAKE - SUMTER, INC., )

115)

116Respondents. )

118)

119SUMT ER CITIZENS AGAINST )

124IRRESPONSIBLE DEVELOPMENT, )

127INC.; KENNETH ROOP; and AUBREY )

133VARNUM, )

135)

136Petitioners, )

138)

139vs. ) Case No. 02 - 1124

146)

147SOUTHWEST FLORIDA WATER )

151MANAGEMENT DISTRICT and THE )

156VILLAGES OF LAKE - SUMTER, INC., )

163)

164Respondents, )

166)

167and )

169)

170THE VILLAGES WATER CONSERVATION )

175AUTHORITY , L.L.C., )

178)

179Intervenor. )

181)

182RECOMMENDED ORDER

184Administrative Law Judge Don W. Davis of the Division of

194Administrative Hearings (DOAH) held a final hearing in the

203above - styled matter on May 20 through 22, 2002, in Bushnell,

215Florida. The following appearances were entered:

221APPEARANCES

222For Petitioners, Sumter Citizens Against Irresponsible

228Development, Inc., and T. Daniel Farnsworth:

234John R. Thomas, Esquire

238Thomas & Associates, P.A.

242233 Third Street, North

246Suite 101

248St. Petersburg, Florida 33701

252For Petitioners, Kenneth Roop and Aubrey Varnum:

259Michael A. Skelton, Esquire

26311007 North 56th Street

267Suite 204

269Temple Terrace, Florida 33617

273For Respon dent, Southwest Florida Water Management

280District:

281Margaret M. Lytle, Esquire

285Steve Rushing, Esquire

288Southwest Florida Water Management District

2932379 Broad Street

296Brooksville, Florida 34604 - 6899

301For Respondent, The Villages of Lake - Sumter, Inc., and

311t he Intervenors, North Sumter Utility Company, L.L.C., and

320The Villages Water Conservation Authority, L.L.C.:

326Martha Harrell Chumbler, Esquire

330Nancy G. Linnan, Esquire

334Carlton Fields Law Firm

338Post Office Drawer 190

342Tallahassee, Florida 32302 - 0190

347STATEM ENT OF THE ISSUE

352Whether proposed Water Use Permits Nos. 20012236.000 (the

360Potable Water Permit) and 20012239.000 (the Irrigation Permit)

368and proposed Environmental Resource Permit No. 43020198.001 (the

376ERP) should be issued by the Respondent, Southwest Florida Water

386Management District (the District).

390PRELIMINARY STATEMENT

392On August 31, 2001, North Sumter Utility Company, L.L.C.

401(the Utility), and The Villages Water Conservation Authority,

409L.L.C. (the Authority), simultaneously applied to the District

417f or permits to withdraw groundwater to serve a portion of the

429development known as The Villages of Sumter. On July 5, 2001,

440The Villages of Lake - Sumter, Inc. (the Villages Inc.), which is

452the general partner of both the Utility and the Authority,

462applied f or a permit to construct a stormwater management system

473that would also serve a portion of The Villages of Sumter.

484Issuance of the Potable Water and Irrigation Permits are subject

494to the criteria contained in Rule 40D - 2.301, Florida

504Administrative Code, w hile the issuance of the ERP is subject to

516those criteria set forth in Rules 40D - 4.301 and 40D - 4.302,

529Florida Administrative Code.

532After initial application submittals and receipt of

539additional information and clarification from the applicants

546with regard to all three applications, the District issued

555notices of its proposed issuance, together with proposed permits

564on the following dates: the ERP on December 28, 2001; the

575Potable Water Permit on January 28, 2002; and the Irrigation

585Permit on January 29, 2 002.

591On February 22, 2002, Sumter Citizens Against Irresponsible

599Development, Inc. (SCAID), filed petitions challenging the

606District’s proposed agency action on each of the three

615applications. The District entered orders dismissing the

622petitions, withou t prejudice, on February 28, 2002, and, on

632March 13, 2002, SCAID - now joined by Kenneth Roop, Aubrey

643Varnum, and T. Daniel Farnsworth - filed amended verified

652petitions challenging the issuance of the permits. These

660amended petitions, although specifical ly brought pursuant to

668Section 403.412, Florida Statutes, also allege that the

676Petitioners will be substantially affected by the issuance of

685the permits.

687Prior to transmittal of the proceedings to the Division of

697Administrative Hearings (DOAH), the Distri ct dismissed

704Farnsworth, with prejudice, from the two proceedings challenging

712issuance of the Potable Water and Irrigation Permits, as his

722petitions were untimely. The amended petitions of SCAID, Roop

731and Varnum and - as to Case No. 02 - 1123 only - Farnswo rth were

747then forwarded to DOAH on March 19, 2002. After the petitions

758were received by DOAH, the Utility and the Authority filed

768motions to intervene and Respondent, the Villages Inc., moved to

778have all three proceedings consolidated. All three motions

786were granted and the consolidated proceeding was scheduled for

795hearing on May 20 through 23, 2002.

802In the Prehearing Stipulation, the Petitioners allege that

810the rule criteria for issuance of the three permits have not

821been met, while the Villages Inc., the Utility, and the

831Authority (jointly "the Applicants") and the District assert

840that the applicable criteria have been met and, therefore, the

850Applicants are entitled to have the permits issued.

858At the final hearing, the District and the Applicants

867join tly presented the testimony of three fact witnesses:

876John E. Parker, Jackson Sullivan, and Robert Farner. They also

886presented the testimony of five expert witnesses: Vivian

894Bielski, an expert in hydrology, geohydrology, and water use

903permitting; Kenn eth Barrett, an expert in surface water

912management and environmental resource permitting; Leonard

918Bartos, an expert in limnology, wetlands delineation, wetlands

926mitigation, and environmental resource and water use permitting;

934John W. Parker, an expert in h ydrology, geohydrology, and water

945use permitting; and Nicholas Andreyev, an expert in geotechnical

954engineering and geohydrology. In addition, the District and the

963Applicants offered into evidence 28 exhibits, all of which were

973admitted.

974Petitioners offe red the factual testimony of the three

983individual Petitioners: Roop, Farnsworth, and Varnum, as well

991as that of two other lay witnesses, William Clay Wing and

1002Russell Weir. Petitioners also offered the expert testimony of

1011Dr. Devo Seereeram, Ph.D., - an expert in hydrogeotechnical

1020engineering, hydrology, and hydrogeology - and offered into

1028evidence the deposition of Andreyev. Twelve (12) exhibits

1036offered by Petitioners were admitted.

1041The parties jointly introduced five exhibits that were

1049received into t he record.

1054The Transcript of the final hearing was filed on May 24,

10652002, and the parties filed their Proposed Recommended Orders

1074ten days thereafter on June 3, 2002.

1081FINDINGS OF FACT

1084The Parties

10861. The individual Petitioners, Farnsworth, Roop, and

1093Va rnum are all Florida citizens and residents of Sumter County.

11042. None of the individual Petitioners offered any evidence

1113relating to direct impacts that the ERP would have on their

1124property. With respect to the Potable Water and Irrigation

1133Permits, anecd otal testimony was presented by Petitioners and

1142Wing and Weir relating to well failures and sinkholes in the

1153area. Two Petitioners, Roop and Varnum, live in close proximity

1163to the property encompassed by the three permits. Petitioner

1172Farnsworth’s propert y is approximately three and a half miles

1182from the project boundary. Wing and Weir live approximately

1191four and a half to five and 18 miles from the project site,

1204respectively.

12053. SCAID is a Florida not - for - profit corporation that has

1218approximately 130 m embers. Farnsworth, the president of SCAID,

1227identified only Roop and Varnum as members who will be directly

1238affected by the activities to be authorized by the permits.

12484. The District is the administrative agency charged with

1257the responsibility to cons erve, protect, manage, and control

1266water resources within its boundaries.

12715. The Utility and the Authority are limited liability

1280companies, of which the Villages Inc. is the managing partner.

1290The Villages Inc. is a Florida corporation. The Utility, whi ch

1301will serve as a provider of potable water, is regulated by the

1313Public Service Commission, while the Authority which will

1321provide irrigation water, is not.

1326The Villages Inc., Development

13306. The Villages Inc. is a phased, mixed use, retirement

1340communit y, which is located at the intersecting borders of Lake,

1351Marion, and Sumter Counties. Development has been on going

1360since at least 1983, with a current planning horizon of the year

13722019.

13737. Currently, there are 15,362 constructed dwelling units

1382in the b uilt - out portion of the Villages Inc. that are located

1396in Lake County and the extreme northeast corner of Sumter

1406County. The portion located in Marion County is 60 percent

1416complete, with 750 homes completed and another 600 under

1425construction. Approximate ly another 22,000 residences are

1433planned for development in Sumter County by the year 2012, with

1444an additional 10,200 by the year 2019. However, the Potable

1455Water and Irrigation Permits are only for a six - year duration,

1467and the ERP has a duration of only six years. None of the

1480permits authorize development activities beyond that time frame.

1488Generally speaking, the three permits at issue include an area

1498owned by the Villages Inc. that lies in northeast Sumter County

1509South of County Road 466 and North of C ounty Road 466A.

1521However, it is not projected that this entire area will be

1532built - out during the terms of three proposed permits.

1542Area Hydrology and Topography

15468. In the area of the Villages Inc., there is a layer of

1559approximately five to ten feet of sand at the land surface,

1570which is underlain by ten to 70 feet of a clayey sand. Both of

1584these constitute the surficial aquifer and are extremely leaky,

1593allowing water to percolate easily through to a lower layer.

1603Except in the vicinity of Lake Miona, th ere is no water in the

1617surficial aquifer except after rainfall events.

16239. The clayey sand layer is underlain by the Upper

1633Floridan, a limestone unit. The top of this limestone layer

1643("the top of the rock") occurs at fluctuating depths of

1655between 30 and 70 feet. At approximately 350 to 400 feet below

1667the land surface, there begins a transition to a denser unit

1678that serves as a confining layer between the Upper Floridan

1688production zone and the Lower Floridan production zone. This

1697confining layer, which was confirmed by drilling at three

1706locations in the Villages Inc. is approximately 150 feet thick

1716in the area of the Villages Inc. Another transition, this time

1727to a less dense formation, begins at approximately 550 to 600

1738feet, which is considered the to p of the Lower Floridan

1749production zone.

175110. While testing conducted on the project site indicated

1760almost no leakage between the Upper and Lower Floridan

1769production zones, it is generally known by experts that there is

1780some exchange of water between the two layers.

178811. Both the Upper and the Lower Floridan contain water

1798that meets potable water standards and both are considered water

1808production zones. The water quality of the two zones is not

1819significantly different.

182112. The project area is prone to k arst activity, that is,

1833the formation of sinkholes. Sinkholes are formed as a result of

1844the collapse of the overburden above subsurface cavities which

1853have been formed through a very gradual dissolution of

1862limestone, thus resulting in a "sink" at the land surface.

187213. Surface water bodies in the area include Lake Miona,

1882Black Lake, Cherry Lake, and Dry Prairie, as well as several

1893other small wetlands.

1896The Potable Water and Irrigation Permits

190214. The potable water permit is for the withdrawal from

1912the Upper Floridan Aquifer of 1.164 million gallons of water per

1923day (MGD), on an annual average, for potable use in residences

1934and both commercial and recreational establishments. It also

1942limits the maximum withdrawal during peak months to 2.909 MGD.

195215. Th e Irrigation Permit is for the withdrawal from the

1963Lower Floridan Aquifer of 2.850 MGD, on an annual average, for

1974use in irrigation. The peak month usage rate permissible under

1984the proposed permit would be 9.090 MGD. Water withdrawal under

1994the Irrigation Permit will be used for the irrigation of

2004residential lawns, common areas, commercial landscaping, and

2011golf courses.

2013Modeling of Drawdowns

201616. In assessing the impacts of proposed water withdrawals

2025from an aquifer, District personnel considered effects o n the

2035aquifers and on - surface water features in the area. Computer -

2047generated models of the predicted effects of the Potable Water

2057and Irrigation Permits withdrawals provided one of the principal

2066bases for this assessment. The primary geologist assigned t o

2076review the permit applications reviewed two of the models

2085submitted by the Utility and the Authority (jointly the WUP

2095Applicants) and ran one personal model of her own in order to

2107predict the effects of the proposed withdrawals on the aquifers,

2117as well a s on any wetlands and other surface water bodies. In

2130particular, the models predict both the vertical and horizontal

2139extent to which the withdrawals may lower the level of water

2150within the aquifers and in - surface waters under various

2160conditions.

216117. One of the models submitted by the WUP Applicants

2171predicted drawdowns during a 90 - day period of no rainfall while

2183the other predicted the impacts of the withdrawals over the life

2194of the permits, considered cumulatively with the effects of

2203withdrawals from the already - existing Villages' development in

2212Sumter, Marion, and Lake Counties. The District’s geologist

2220modeled the impacts of the withdrawals over the life of the

2231permits and included the cumulative effects of all of the

2241current Villages' withdrawals in S umter County. All of these

2251models included the combined effects of both the proposed

2260Potable Water and the Irrigation Permits.

226618. Based upon these models, it is concluded that there

2276will be no significant drawdowns as a result of the withdrawals

2287author ized by the proposed water use permits. Specifically, the

2297only predicted drawdown in the surficial aquifer (0.25 feet of

2307drawdown) is in an area where there are no natural surface water

2319features. Drawdown in the Upper Floridan is predicted at

2328between 0.1 and 0.2 feet, while the drawdown in the Lower

2339Floridan is predicted at a maximum of 1.5 feet. These minor

2350drawdowns are not expected to cause any adverse impacts.

235919. Transmissivity is the rate at which water moves

2368horizontally through the aquifer. In areas with high

2376transmissivity, the results of water withdrawals from an aquifer

2385will generally be low in magnitude, but broad in lateral extent.

2396Water withdrawals from areas of low transmissivity will result

2405in cones of depression that are more limited in lateral extent,

2416but steeper vertically. The use of too high a transmissivity

2426rate in a model, would overpredict the horizontal distance of

2436the drawdowns caused by withdrawals, but would underpredict the

2445vertical drawdown in the immediate vicinity of th e withdrawal.

2455Conversely, use of too low a transmissivity would over - predict

2466the effects in the immediate vicinity of the withdrawal but

2476underpredict the lateral extent of the drawdown.

248320. The WUP Applicants’ models used a transmissivity value

2492for the Lower Floridan Aquifer of 100,000 feet squared per day

2504("ft. 2 /d'). The WUP Applicants’ consultant derived the

2514transmissivity values from a regional model prepared by the

2523University of Florida. The regional model uses a transmissivity

2532value for the entire region of 200,000 ft. 2 /d for the Lower

2546Floridan. While that transmissivity is appropriate for

2553assessing large - scale impacts, on a more localized level, the

2564transmissivity of the aquifer may be lower. Therefore, the WUP

2574Applicants’ consultant met with Di strict representatives and

2582agreed to use a value half that used in the University of

2594Florida model. A similar approach was used for the

2603transmissivity value used in modeling effects in the Upper

2612Floridan.

261321. Notably, specific transmissivity values reco rded in

2621four wells in the Villages Inc. area were not used because two

2633of these wells were only cased to a depth of just over 250 feet,

2647with an open hole below that to a depth of 590 feet. Thus, the

2661transmissivity measured in these wells reflect condition s in the

2671confining layer at the immediate location of the wells - not the

2683transmissivity of the Lower Floridan production zone. Further,

2691site - specific information on transmissivity, measured during

2699pump tests at individual wells, does not correlate well t o the

2711transmissivity of the aquifer, even at short distances from the

2721wellansmissivities measured at individual wells are used to

2729determine the depth at which the pump should be set in the well,

2742not to determine the transmissivity of the aquifer. Thu s, the

2753use of transmissivities derived from the regional model, but

2762adjusted to be conservative, is entirely appropriate.

276924. Moreover, using a transmissivity in her modeling of

2778the project impacts of 27,000 ft. 2 /d for the Lower Floridan

2791Aquifer, the dis trict geologist’s model predicted no adverse

2800impacts.

280125. Leakance is the measure of the resistance of movement

2811vertically through confining units of the aquifer. The leakance

2820value used by the District for the confining layer between the

2831Upper and Lowe r Floridan was taken from the University of

2842Florida model. Tests conducted on the site actually measured

2851even lower leakance values. Thus, the evidence establishes that

2860the leakance value used in the WUP Applicants’ and the

2870District’s modeling for the Fl oridan confining layer was

2879reasonable and appropriate.

288226. Competent, substantial evidence also establishes that

2889the leakance value used for Lake Miona was reasonable. The WUP

2900Applicants submitted to the District substantial data, gathered

2908over several years, reflecting the balance of water flowing into

2918Lake Miona and the lake’s levels in relation to the

2928potentiometric surface. This documentation verified the

2934leakance value used for Lake Miona in the modeling.

294327. Finally, the District modeling used a ppropriate

2951boundary condition parameters. The District modeling used what

2959is known as the "constant head" boundary and assumes the

2969existence of water generated off - site at the boundaries. Such a

2981boundary simulates the discharge of the aquifer at a certai n

2992level. The use of constant head boundaries is an accepted

3002practice.

300328. The modeling conducted on behalf of the District and

3013the Applicants provides a reasonable assurances that the Potable

3022Water and Irrigation Permits will not cause adverse water

3031qual ity or quantity changes to surface or groundwater resources,

3041will not cause adverse environmental impacts to natural

3049resources, and will not cause pollution of the aquifer.

3058Furthermore, because the predicted drawdowns are so

3065insignificant, reasonable assu rances have been provided that the

3074withdrawals will not adversely impact existing off - site land

3084uses or existing legal withdrawals. The modeling also provides

3093reasonable assurances that the withdrawals will not be harmful

3102to the water resources of the Dis trict.

311029. Moreover, monitoring requirements included in the

3117proposed Potable Water and Irrigation Permits provide additional

3125reasonable assurance that – should the withdrawal effects exceed

3134those predicted by the modeling – such effects are identified

3144and necessary steps are taken to mitigate for any potential

3154impacts. The District has reserved the right to modify or

3164revoke all or portions of the water use permits under certain

3175circumstances.

317630. Specifically, the proposed Potable Water Permit

3183requires a monitoring plan that includes the following pertinent

3192provisions:

3193b. There shall be no less than three

3201control wetland and ten onsite wetland

3207monitoring sites;

3209c. A baseline monitoring report, outlining

3215the current wetland conditions;

3219* * *

3222e. A statement indicating that an analysis

3229of the water level records for area lakes,

3237including Miona Lake, Black Lake, Cherry

3243Lake, Lake Deaton and Lake Griffin, will be

3251included in the annual report;

3256f. A statement indicating that an analysis

3263of the spri ng flow records for Gum Spring,

3272Silver Spring, and Fenney Spring, will be

3279included in the annual report;

3284* * *

3287i. Wildlife analyses for potentially

3292impacted wetlands, lakes, and adjacent

3297property owner uses or wells, including

3303methods to determine s uccess of the

3310mitigation;

3311j. A mitigation plan for potentially

3317impacted wetlands, lakes, and adjacent

3322property owner uses or wells, including

3328methods and thresholds to determine success

3334of the mitigation;

3337k. An annual report of an analysis of the

3346monitor ing data . . . .

3353Similar provisions are included in the proposed irrigation

3361permit. The WUP Applicants, in conjunction with the District,

3370have developed sites and methodologies for this monitoring.

3378Reasonable Demand

338031. The water to be withdrawn under t he proposed Potable

3391Water Permit will serve 10,783 people. This total results from

3402the simple multiplication of the number of residences to be

3412built during the next six years (5,675) by the average number of

3425residents per household (1.9). Those numbers a re based upon

3435historical absorption rates within the Villages Inc. development

3443since 1983, an absorption rate that doubles approximately every

3452five years .

345532. The Utility proposed a per capita use rate of 108

3466gallons per day for potable use only. Distri ct personnel

3476independently verified that per capita rate, based upon current

3485usage in the existing portions of the Villages Inc. and

3495determined that the rate was reasonable. Based upon the

3504population projections and the per capita rate, the District

3513deter mined that there is a reasonable demand for the withdrawal

3524of the amount of water, for potable purposes, that is reflected

3535in the Potable Water Permit.

354033. The Utility has provided reasonable assurance

3547regarding the Utility’s satisfaction of this permittin g

3555criterion.

355634. As to the irrigation permit, the Villages Inc. plans,

3566within the next six years, to complete the construction of 1,911

3578acres of property that will require irrigation. The amount of

3588water originally requested by the Authority for irrigat ion

3597withdrawals was reduced during the course of the application

3606process at the request of the District.

361335. The District determined the reasonable amount of

3621irrigation water needed through the application of AGMOD, a

3630computer model that predicts the irri gation needs of various

3640vegetative covers. Since the Authority intends to utilize

3648treated wastewater effluent as another source of irrigation

3656water, the District reduced the amount of water that it would

3667permit to be withdrawn from the Lower Floridan for irrigation.

3677The District, thus, determined that the Authority would

3685need 1.59 MGD annual average for recreational and aesthetic area

3695irrigation and 1.26 MGD annual average for residential lawn

3704irrigation, for a total of 2.85 MGD.

371136. The Villages In c. also plans to accumulate stormwater

3721in lined ponds for irrigation use. However, unlike its

3730treatment of wastewater effluent, the District did not deduct

3739accumulated stormwater from the amount of water deemed necessary

3748for irrigation. This approach was adopted due to the inability

3758to predict short - term rainfall amounts.

376537. The uncontroverted evidence of record establishes

3772reasonable assurances that there is a reasonable demand for the

3782amount of water to be withdrawn under the proposed irrigation

3792permi t.

3794Conservation and Reuse Measures

379838. Both the Utility and the Authority applications

3806included proposed measures for the conservation and reuse of

3815water. The conservation plan submitted in conjunction with the

3824irrigation permit application provides for control valves to

3832regulate both the pressure and timing of irrigation by

3841residential users; contractual restrictions on water use by

3849commercial users; xeriscaping; and an irrigation control system

3857for golf course irrigation that is designed to maximize th e

3868efficient use of water. In addition, in the proposed permits,

3878the District requires the Utility and the Authority to expand

3888upon these conservation measures through such measures as

3896educational efforts, inclined block rate structures, and annual

3904reporti ng to assess the success of conservation measures.

391339. The Authority also committed to reduce its dependence

3922on groundwater withdrawals through the reuse of wastewater

3930effluent, both from the on - site wastewater treatment facility

3940and through contract with the City of Wildwood. Reasonable

3949assurances have been provided that conservation measures have

3957been incorporated and that, to the maximum extent practicable,

3966reuse measures have been incorporated.

3971Use of Lowest Available Quality of Water

397840. In additio n to the reuse of treated wastewater

3988effluent, the Authority intends to minimize its dependence on

3997groundwater withdrawals for irrigation use through the reuse of

4006stormwater accumulated in lined ponds. Thirty - one of the lined

4017stormwater retention ponds to be constructed by the Villages

4026Inc. are designed as a component of the irrigation system

4036on - site. Ponds will be grouped with the individual ponds within

4048each group linked through underground piping. There will be an

4058electronically controlled valve i n the stormwater pond at the

4068end of the pipe that will be used to draw out water for

4081irrigation purposes.

408341. These lined stormwater ponds serve several purposes.

4091However, the design feature that is pertinent to the reuse of

4102stormwater for irrigation is the inclusion of additional storage

4111capacity below the top of the pond liner. No groundwater will

4122be withdrawn for irrigation purposes unless the level of

4131stormwater in these lined ponds drops below a designed minimum

4141irrigation level. Groundwater pumped into these ponds will then

4150be pumped out for irrigation. Thus, the use of groundwater for

4161irrigation is minimized. The Authority has met its burden of

4171proving that it will use the lowest quality of water available.

418242. With respect to the potable perm it, the evidence

4192establishes that there are only minor differences between the

4201water quality in the Upper Floridan and Lower Floridan in this

4212area. The Upper Floridan is a reasonable source for potable

4222supply in this area. Thus, reasonable assurances hav e been

4232provided by the Utility that it will utilize the lowest water

4243quality that it has the ability to use for potable purposes.

4254Waste of Water

425743. In regard to concerns that the design of the Villages

4268Inc.'s stormwater/irrigation system will result in wasteful

4275losses of water due to evaporation from the surface of the lined

4287ponds, it must be noted that there are no artesian wells

4298relating to this project and nothing in the record to suggest

4309that the groundwater withdrawals by either the Utility or the

4319A uthority will cause excess water to run into the surface water

4331system.

433244. Additionally, the evidence establishes that, to the

4340extent groundwater will be withdrawn from the Lower Floridan and

4350pumped into lined stormwater ponds, such augmentation is not for

4360an aesthetic purpose. Instead, the groundwater added to those

4369ponds will be utilized as an integral part of the irrigation

4380system and will be limited in quantity to the amount necessary

4391for immediate irrigation needs.

439545. Finally, the water to be withd rawn will be put to

4407beneficial potable and irrigation uses, rather than wasteful

4415purposes. Under current regulation, water lost from lined

4423stormwater ponds through evaporation is not considered as waste.

4432Thus, the Authority and the Utility have provided reasonable

4441assurances that their withdrawals of groundwater will not result

4450in waste.

4452The ERP

445446. The stormwater management system proposed by the

4462Villages Inc. will eventually serve 5,016 acres on which

4472residential, commercial, golf course, and other recr eational

4480development will ultimately be constructed. However, the

4487proposed permit currently at issue is preliminary in nature and

4497will only authorize the construction of stormwater ponds,

4505earthworks relating to the construction of compensating flood

4513stora ge, and wetland mitigation.

4518Water Quality Impacts

452147. The stormwater management system will include eight

4529shallow treatment ponds that will be adjacent to Lake Miona and

4540Black Lake and 45 lined retention ponds. Thirty - one of these

4552lined ponds will serve as part of the irrigation system for a

4564portion of the Villages Inc.'s development. All of these ponds

4574provide water quality treatment.

457848. The unlined ponds will retain the first one inch of

4589stormwater and then overflow into the lakes. The ponds provi de

4600water quality treatment of such water before it is discharged

4610into the lakes. The water quality treatment provided by these

4620ponds provides reasonable assurances that the project will not

4629adversely impact the water quality of receiving waters.

463749. Whi le they do not discharge directly to surface

4647receiving waters, the lined retention ponds do provide

4655protection against adverse water quality impacts on groundwater.

4663There will be some percolation from these ponds, from the sides

4674at heights above the top o f the liner. However, the liners will

4687prevent the discharge of pollutants through the highly permeable

4696surface strata into the groundwater. The Villages Inc. designed

4705the system in this manner in response to concerns voiced by the

4717Department of Environme ntal Protection during the DRI process

4726regarding potential pollutant loading of the aquifer at the

4735retention pond sites. Furthermore, by distributing the

4742accumulated stormwater - through the irrigation system - over a

4752wider expanse of vegetated land surfa ce, a greater degree of

4763water quality treatment will be achieved than if the stormwater

4773were simply permitted to percolate directly through the pond

4782bottom.

478350. There is no reasonable expectation that pollutants

4791will be discharged into the aquifer from th e lined ponds. If

4803dry ponds were used, there would be an accumulation of

4813pollutants in the pond bottom. These measures provide

4821reasonable assurances that there will be no adverse impact on

4831the quality of receiving waters.

4836Water Quantity Impacts

483951. Wit h regard to the use of lined retention ponds, as

4851part of the Villages Inc.’s stormwater system and the impact of

4862such ponds on water quantity, the evaporative losses from lined

4872ponds as opposed to unlined ponds is a differential of

4882approximately one (1) in ch of net recharge. The acreage of the

4894lined ponds - even measured at the very top of the pond banks -

4908is only 445 acres. That differential, in terms of a gross water

4920balance, is not significant, in view of the other benefits

4930provided by the lined ponds.

493552. As part of the project, wetlands will be created and

4946expanded and other water bodies will be created. After

4955rainfalls, these unlined ponds will be filled with water and

4965will lose as much water through evaporation as would any other

4976water body. The design proposed by the Villages Inc., however,

4986will distribute the accumulated stormwater across the project

4994site through the irrigation of vegetated areas.

500153. The documentation submitted by the Villages Inc.

5009establishes that the ERP will not cause adve rse water quantity

5020impacts. The Villages Inc. has carried its burden as to this

5031permitting criterion.

5033Flooding, Surface Water Conveyance, and Storage Impacts

504054. Parts of the project are located in areas designated

5050by the Federal Emergency Management Ad ministration (FEMA) as

5059100 - year flood zones. Specifically, these areas are located

5069along Lake Miona, Black Lake, between Black Lake and Cherry

5079Lake, and at some locations south of Black Lake. Under the

5090District’s rules, compensation must be provided for any loss of

5100flood zone in filled areas by the excavation of other areas.

5111The District has determined, based upon the documentation

5119provided with the Villages Inc.’s application, work on the site

5129will encroach on 871.37 acre feet of the FEMA 100 - year flood

5142zone. However, 1,051.70 acre feet of compensating flood zone is

5153being created.

515556. The Villages Inc. proposes to mitigate for the loss of

5166flood zone primarily in the areas of Dry Prairie and Cherry

5177Lake. At present, Cherry Lake is the location of a pea t mining

5190operation authorized by DEP permit. Mining has occurred at that

5200site since the early 1980s. The flood zone mitigation proposed

5210by the Villages Inc. provides reasonable assurance that it will

5220sufficiently compensate for any loss of flood basin st orage.

523057. The Villages Inc.'s project provides reasonable

5237assurance that it will neither adversely affect surface water

5246storage or conveyance capabilities, surface or groundwater

5253levels or surface water flows nor cause adverse flooding. Each

5263of the 45 retention ponds to be constructed on - site will include

5276sufficient capacity, above the top of the pond liner, to hold a

5288100 - year/24 - hour storm event. This includes stormwater drainage

5299from off - site. In addition, these ponds are designed to have an

5312extra o ne foot of freeboard above that needed for the

5323100 - year/24 - hour storm, thus providing approximately an

5333additional 100 acres of flood storage beyond that which will be

5344lost through construction on - site.

535058. Furthermore, the Villages Inc. has propo sed an

5359emergency flood plan. In the event of a severe flood event,

5370excess water will be pumped from Dry Prairie, Cherry Lake, and

5381Lake Miona and delivered to the retention ponds and to certain

5392golf course fairways located such that habitable living spaces

5401would not be endangered.

5405Environmental Impacts and Mitigation

540959. There are 601 acres of wetlands and surface waters of

5420various kinds in the Villages Inc.’s project area. Forty - one

5431acres of wetlands will be impacted by the work that is

5442authorized under the ERP. Each of these impacted wetlands,

5451along with the extent of the impact, is listed in the ERP. The

5464impacts include both fill and excavation and all will be

5474permanent.

547560. When assessing wetland impacts and proposed mitigation

5483for those impacts, the District seeks to ensure that the

5493activities proposed will not result in a net loss of wetland

5504functionality. The object is to ensure that the end result will

5515function at least as well as did the wetlands in their

5526pre - impact condition. Function al value is judged, at least in

5538part, by the long term viability of the wetland. While small,

5549isolated wetlands are not completely without value, large

5557wetland ecosystems – which are less susceptible to surrounding

5566development – generally have greater lon g - term habitat value.

5577The District’s policy is that an applicant need not provide any

5588mitigation for the loss of habitat in wetlands of less than

55990.5 acre, except under certain limited circumstances, including

5607where the wetland is utilized by threatene d or endangered

5617species.

561861. Some wetlands that will be impacted by the Villages

5628Inc.’s project are of high functional value and some are not as

5640good. The Villages Inc. proposes a variety of types of

5650mitigation for the wetlands impacts that will result from its

5660project, all of which are summarized in the ERP. In all, 331.55

5672acres of mitigation are proposed by the Villages Inc.

568162. First, the District proposes to create new wetlands.

5690Approximately 11 acres of this new wetland will consist of a

5701marsh, which is to be created east of Cherry Lake. Second, it

5713proposes to undertake substantial enhancement of Dry Prairie, a

5722126 - acre wetland. Currently – and since at least the early

5734nineties – Dry Prairie received discharge water from the peat

5744mining operati on at Cherry Lake. Without intervention, when the

5754mining operations stop, Dry Prairie would naturally become drier

5763than it has been for several years and would lose some of the

5776habitat function that it has been providing. The Villages

5785Inc.’s proposed enh ancement is designed to match the current

5795hydroperiods of Dry Prairie, thus ensuring its continued habitat

5804value.

580563. Third, the Villages Inc. has proposed to enhance

5814upland buffers around wetlands and surface waters by planting

5823natural vegetation, thus providing a natural barrier. Placement

5831of these buffers in conservation easements does not provide the

5841Villages Inc. with mitigation credit, since a 25 - foot buffer is

5853required anyway. However, the District determined that the

5861enhancement of these areas p rovided functional value to the

5871wetlands and surface waters that would not be served by the

5882easements alone.

588464. Fourth, the Villages Inc. will place a conservation

5893easement over certain areas, including a 1500 - foot radius

5903preserve required by the Fish a nd Wildlife Conservation

5912Commission (FWCC) around an identified eagles’ nest. These

5920areas will also be used for the relocation of gopher tortoises

5931and, if any are subsequently located, of gopher frogs. While

5941the Villages Inc. is also performing some enha ncement of this

5952area, it will receive no mitigation credit for such enhancement

5962– which was required to meet FWCC requirements. However, since

5972the conservation easement will remain in effect in perpetuity,

5981regardless of whether the eagles continue to use the nest, the

5992easement ensures the continued, viability of the area’s wetlands

6001and provides threatened and endangered species habitat.

600865. In order to provide additional assurances that these

6017mitigation efforts will be successful, the District has include d

6027a condition in the proposed permit establishing wetland

6035mitigation success criteria for the various types of proposed

6044mitigation. If these success criteria are not achieved,

6052additional mitigation must be provided.

605766. With the above described mitigati on, the activities

6066authorized under the ERP will not adversely impact the

6075functional value of wetlands and other surface waters to fish or

6086wildlife. The Villages Inc. has met its burden of providing

6096reasonable assurances relating to this permit criterion.

6103Capability of Performing Effectively

610767. The Villages Inc. has also provided reasonable

6115assurances that the stormwater management system proposed is

6123capable of functioning as designed. The retention ponds

6131proposed are generally of a standard - type desig n and will not

6144require complicated maintenance procedures.

614868. In its assessment of the functional capability of the

6158system, the District did not concern itself with the amount of

6169stormwater that the system might contribute for irrigation

6177purposes. Rathe r, it focused its consideration on the

6186stormwater management functions of the system. The question of

6195the effectiveness of the system for irrigation purposes is not

6205relevant to the determination of whether the Villages Inc. has

6215met the criteria for permit issuance. Consequently, the record

6224establishes that the documentation provided by the Villages Inc.

6233contains reasonable assurances that the stormwater system will

6241function effectively and as proposed.

6246Operation Entity

624869. The Villages Inc. has created Community Development

6256District No. 5 (CDD No. 5), which will serve as the entity

6268responsible for the construction and maintenance of the

6276stormwater system. CDD No. 5 will finance the construction

6285through special revenue assessment bonds and will finance

6293m aintenance through the annual assessments. Similar community

6301development districts were established to be responsible for

6309earlier phases of the Villages Inc.

631570. The ERP includes a specific condition that, prior to

6325any wetlands impacts, the Villages Inc . will either have to

6336provide the District with documentation of the creation of a

6346community development district or present the District with a

6355performance bond in the amount of $1,698,696.00. Since the

6366undisputed testimony at hearing was that CDD No. 5 has, in fact,

6378now been created, there are reasonable assurances of financial

6387responsibility.

6388Secondary and Cumulative Impacts

639271. The Villages Inc.’s application also provides accurate

6400and reliable information sufficient to establish that there are

6409reason able assurances that the proposed stormwater system will

6418not cause unacceptable cumulative impacts upon wetlands or other

6427surface waters or adverse secondary impacts to water resources.

6436The system is designed in a manner that will meet water

6447treatment cri teria and there will be no secondary water quality

6458impacts. Further, the use of buffers will prevent secondary

6467impacts to wetlands and wetland habitats and there will be no

6478secondary impacts to archeological or historical resources. In

6486this instance, the stormwater system proposed by the Villages

6495Inc. will function in a manner that replaces any water quantity

6506or water quality functions lost by construction of the system.

651672. In its assessment of the possible cumulative impacts

6525of the system, the District considered areas beyond the bounds

6535of the current project, including the area to the south that is

6547currently being reviewed under the DRI process as a substantial

6557deviation. The District’s environmental scientist, Leonard

6563Bartos, also reviewed that porti on of the substantial deviation

6573north of County Road 466A, in order to determine the types of

6585wetlands present there. Furthermore, the District is one of the

6595review agencies that comments on DRI and substantial deviation

6604applications. When such an applic ation is received by the

6614District’s planning division, it is routed to the regulatory

6623division for review. The District includes its knowledge of the

6633DRIs in its determination that there are no cumulative impacts.

6643Reasonable assurances have been provided as to these permitting

6652criteria.

6653Public Interest Balancing Test

665773. Because the proposed stormwater system will be located

6666in, on, and over certain wetlands, the Villages Inc. must

6676provide reasonable assurances that the system will not be

6685contrary to t he public interest. This assessment of this

6695permitting criteria requires that the District balance seven

6703factors. While the effects of the proposed activity will be

6713permanent, the Villages Inc. has provided reasonable assurances

6721that it will not have an adverse impact on the public health,

6733safety, or welfare; on fishing or recreational values; on the

6743flow of water; on environmental resources, including fish and

6752wildlife and surface water resources; or on off - site properties.

6763Furthermore, the District has carefully assessed the current

6771functions being provided by the affected wetland areas. With

6780respect to historical or archeological resources, the Villages

6788Inc. has received letters from the Florida Department of State,

6798Division of Historical Resources, s tating that there are no

6808significant historical or archeological resources on the project

6816site that is the subject of this permit proceeding.

682574. Thus, the evidence establishes reasonable assurances

6832that the Villages Inc.'s stormwater system will not be c ontrary

6843to the public interest. Additionally, the District and

6851Applicant presented uncontroverted evidence that the proposed

6858project will not adversely impact a work of the District, and

6869that there are no applicable special basin or geographic area

6879criter ia.

6881CONCLUSIONS OF LAW

688475. The Division of Administrative Hearings has

6891jurisdiction of the subject matter pursuant to Section 120.57,

6900Florida Statutes.

690276. None of the individual petitioners have established

6910that they are substantially affected parties . In addition, the

6920president of SCAID has testified that only two of its 130

6931members will be directly affected by the project. Nonetheless,

6940each of the Petitioners – including SCAID - is a citizen of

6952Florida and, therefore, has standing to intervene in t hese

6962permitting proceedings pursuant to Section 403.312, Florida

6969Statutes. Such intervention includes the right to petition for

6978a hearing under Sections 120.569 and 120.57, Florida Statutes.

698777. This is a de novo proceeding intended to formulate

6997final ag ency action. Department of Transportation v. J.W.C .,

7007Inc . , 396 So. 2d 778, 786 - 87 (Fla. 1st DCA 1981). Applicants

7021have the burden of convincing the fact - finder, by preponderance

7032of the evidence, that the criteria for permitting have been

7042satisfied. Save Anna Marina, Inc. v. Department of

7050Transportation , 700 So. 2d 113, 116 and 117 (Fla. 2d DCA 1997)

7062(citing J.W.C). To carry the initial burden, applicants must

7071present a prima facie case, based on credited and credible

7081evidence of its entitlement to a per mit. County Line Coalition,

7092Inc. v. Southwest Florida Water Management District , ER FALR

7101’99:165 at 6 (SWFWMD 4/27/99). Accord Lee v. St. Johns River

7112Water Management Dist. , ER FALR ’99:353 at 21 (SJRWMD 9/24/99).

712278. "The applicant’s burden is one of reasonable

7130assurances, not absolute guarantees." Lee , ER FALR ‘99:353

7138at 21. "'Reasonable assurance' contemplates a substantial

7145likelihood that the project will be successfully

7152implemented. . . ." In the context of potential for harm of

7164natural r esources, Florida courts have allowed agencies

7172flexibility in interpreting "reasonable assurances" and in

7179applying individual permit standards based on a totality of

7188circumstances. . . . Fulford v. Southwest Florida Water

7197Management District , ER FALR ’00: 102 at 6 (SWFWMD 12/14/99)

720779. As a general proposition, a party should be able to

7218anticipate that when agency employees or officials having

7226special knowledge or expertise in the field accept data and

7236information supplied by the applicant, the same data an d

7246information, when properly identified and authenticated as

7253accurate and reliable by agency or other witnesses, will be

7263readily accepted by the hearing officer, in the absence of

7273evidence showing its inaccuracy or unreliability. J.W.C ., 396

7282So. 2d at 789 . Accord Merrill Stevens Dry Dock Co. v. G. and J.

7297Investors , 506 So. 2d 30 (Fla. 3d DCA 1987).

730680. Once an applicant has presented a prima facie case,

7316the burden of going forward with contrary evidence shifts to the

7327parties opposing the issue of the perm it. J.W.C . , 396 So. 2d at

7341789; County Line Coalition , ER FALR ’99:353 at 6. Absent a

7352presentation by the opponents of contrary evidence, equivalent

7360in quality to that presented by the applicant, the permit must

7371be issued. Id . "The applicant is not requ ired to eliminate all

7384contrary possibilities or address impacts which are only

7392theoretical and could be measured in real life." Fulford , ER

7402FALR 00:102 at 6. Accord Lee , ER FALR ’99:353 at 12 (an

7414opponent’s burden cannot be met by way of presentation of mere

7425speculation of what "might" occur).

743081. The permitting criteria relevant to the issuance of a

7440water use permit by the District are set forth in Rule

745140D - 2.301, Florida Administrative Code, and are expanded upon in

7462the Basis for Review for Wat er Use Permit Applications (the WUP

7474Basis for Review). 1 The Utility and the Authority have carried

7485their burden, having presented accurate and reliable information

7493that has been identified and authenticated by the District. The

7503Petitioners failed to pres ent equivalent evidence to the

7512contrary.

751382. Petitioners’ assertions that the proposed water use

7521permits will cause water to go to waste reflects a

7531misunderstanding of that permitting criterion. Section 4.12 of

7539the WUP Basis of Review states that "[w]ater withdrawals must

7549not result in the waste of water, as defined in Rule [sic]

7561373.203(4)." 2 Waste is the causing of excess water to run into a

7574surface water system, unless the water is thereafter put to

7584beneficial use." The Basis of Review further states

7592specifically that the withdrawal of water for augmentation of a

7602water body is permissible if the water body thus augmented for a

7614beneficial use such as golf course irrigation and if the

7624quantity of water withdrawn is limited to that needed for such

7635use.

76368 3. Since the Petitioners have not presented contrary

7645evidence of equivalent quality to that presented by the

7654Respondents, the Utility and the Authority have met their burden

7664of proving, by a preponderance of the evidence, that their water

7675use permits will meet all of the permitting criteria. To the

7686extent that the Petitioners seek to have the permits denied,

7696based upon unadopted objectives or unwritten policies, such

7704considerations are not relevant to the permitting decisions at

7713hand. "The issuance of a S WMS [SWFWMD] permit must be based

7725solely on compliance with applicable permit criteria." Driscoll

7733v. Southwest Florida Water Management District , ER FALR ’02:032

7742at 3 (SWFWMD 11/24/01), citing Council of the Lower Keys v.

7753Toppino , 429 So. 2d 67 (Fla. 3d D CA 1983). See also Save the

7767St. Johns River v. St. Johns River Water Management District ,

7777623 So. 2d 1193, 1205 (Fla. 1st DCA 1993) (in the absence of an

7791applicable permitting rule or the requisite showing under

7799Section 120.57(1)(e), Florida Statutes, of an enforceable

7806unadopted rule, consistency with agency objectives is not a

7815criterion for permit issuance).

781984. Similarly, the Villages Inc. together with the

7827District, presented a prima facie case satisfying all of the

7837permitting criteria for issuance of t he ERP. Those criteria are

7848found at Rules 40D - 4.301 and 40D - 4.302, Florida Administrative

7860Code, and are expanded upon in the Basis of Review for

7871Environmental Resource Permit Applications within the Southwest

7878Florida Water Management District ("ERP Basis of Review"). 3 As

7890is clear from the Findings of Fact, the Villages Inc. has

7901satisfied each of the permitting criteria, only a few of which

7912require some consideration in these conclusions of law.

792085. Section 2.6.1 identifies the entities or persons that

7929wil l be considered acceptable to satisfy the requirement that a

7940proposed stormwater system is capable of being effective in

7949performance and functioning as proposed and that the activity

7958being permitted will be conducted by an entity with the

7968financial, legal , and administrative capabilities to ensure the

7976permit conditions will be met. See Rule 40D - 4.301(1)(i)

7986and (j), Florida Administration Code (stating those permitting

7994criteria). Included among those acceptable entities are

8001community development dist ricts. Section 2.6.1.(b), ERP Basis

8009for Review. Since the record establishes that the Villages Inc.

8019intends that responsibility for construction and maintenance of

8027the stormwater system will be transferred to CDD No. 5, these

8038two permitting criteria have been satisfied.

804486. The ERP Basis of Review also provides clarification of

8054the permitting criteria relating to the assessment of potential

8063flooding and water quantity impacts. For example, it provides

8072that encroachments into the flood plain of 100 - year s torm event

8085must be replaced with compensating storage capacity. The

8093Villages Inc. has satisfied this requirement.

809987. The ERP states that "[w]here practicable, systems

8107shall be designed to: . . . preserve site groundwater recharge

8118characteristics." Whil e the Petitioners argue that this

8126provision will be violated by the Villages Inc.'s use of lined

8137retention ponds, the preponderance of the evidence does not

8146support that position. Moreover, as indicated, there are

8154counterbalancing benefits to the lined po nds that make their

8164elimination from the proposed system "not practicable."

817188. With respect to wetlands impacts, the ERP Basis for

8181Review states:

8183Wetlands are important components of the

8189water resources because they often serve as

8196spawning, nursery and fe eding habitats for

8203many species of fish and wildlife, and

8210because they often provide important flood

8216storage, nutrient cycling, detrital

8220production, recreational and water quality

8225functions. . . Not all wetlands or other

8233surface waters provide all of thes e

8240functions, nor do they provide them to the

8248same extent. . . .

8253It is the intent of the Governing Board that

8262the criteria in subsections 3.2 through

82683.3.8 [of the ERP Basis of Review] be

8276implemented in a manner which achieves a

8283programmatic goal and a pro ject permitting

8290goal of no net loss of wetlands or other

8299surface water functions . . . Unless

8306exempted by statute or rule, permits are

8313required for the construction, alteration,

8318operation, maintenance, abandonment and

8322removal of systems so that the Distri ct can

8331conserve the beneficial functions of these

8337communities .

8339Section 3.1.0., ERP Basis of Review (emphasis supplied).

8347Clearly, the District does not intend this requirement to

8356mandate that there be no net loss of wetland acreage. Rather,

8367it is the pre servation of equivalent wetland functions that is

8378the goal. The Villages Inc. has satisfied this requirement.

838789. The ERP Basis of Review also provides assistance in

8397construction of the permitting criteria relating to cumulative

8405impacts. Section 3.2.8 st ates that, in assessing whether

8414unacceptable cumulative impacts will occur, consideration must

8421be given to activities which are under review, approved, or

8431vested pursuant to Section 380.06, Florida Statutes (the DRI

8440statute), or other activities regulated under Part IV,

8448Chapter 373, Florida Statutes, which may reasonably be expected

8457to be located within wetlands or other surface waters in the

8468same drainage basin.

847190. The Villages Inc. has provided the District with

8480uncontroverted evidence regar ding the potential for cumulative

8488impacts, including information relating to areas currently under

8496DRI review. The District has accepted that information as

8505accurate and reliable and has relied upon it as the basis for

8517its conclusion that there will be no cumulative impacts. Thus,

8527the Villages Inc. has satisfied this permit criterion as well.

8537RECOMMENDATION

8538Based on the foregoing findings of fact and conclusions of

8548law, it is:

8551RECOMMENDED that a final order be entered issuing Water Use

8561Permit Nos. 20012 236.000 and 20012239.000 and Environmental

8569Resource Permit No. 43020198.001, in accordance with the

8577District’s proposed agency action.

8581DONE AND ENTERED this 24th day of June, 2002, in

8591Tallahassee, Leon County, Florida.

8595___________________________________

8596D ON W. DAVIS

8600Administrative Law Judge

8603Division of Administrative Hearings

8607The DeSoto Building

86101230 Apalachee Parkway

8613Tallahassee, Florida 32399 - 3060

8618(850) 488 - 9675 SUNCOM 278 - 9675

8626Fax Filing (850) 921 - 6847

8632www.doah.state.fl.us

8633Filed with the Clerk of th e

8640Division of Administrative Hearings

8644this 24th day of June, 2002.

8650ENDNOTES

86511/ The WUP Basis for Review has been adopted by reference in

8663Rule 40D - 2.091, Florida Administrative Code.

86702/ Notably, Section 373.203(4), Florida Statutes, narrowly

8677defines w aste as limited to flows of water from artesian wells.

86893/ The ERP Basis for Review has been adopted by reference in

8701Rule 40D - 4.091(1), Florida Administrative Code. While the

8710current edition of that document was not incorporated into

8719SWFWMD's rules until February 27, 2002, there has been no

8729suggestion that the current edition includes substantive changes

8737that are significant to the consideration of The Villages Inc.'s

8747application.

8748COPIES FURNISHED :

8751E.D. "Sonny" Vergara, Executive Director

8756Southwest Flo rida Water

8760Management District

87622379 Broad Street

8765Brooksville, Florida 34609 - 6899

8770Martha Harrell Chumbler, Esquire

8774Nancy G. Linnan, Esquire

8778Carlton Fields Law Firm

8782Post Office Box 190

8786Tallahassee, Florida 32302 - 0190

8791Margaret Lytle, Esquire

8794Steve Rush ing, Esquire

8798Southwest Florida Water

8801Management District

88032379 Broad Street

8806Brooksville, Florida 34604 - 6899

8811Michael A. Skelton, Esquire

881511007 North 56th Street

8819Suite 204

8821Temple Terrace, Florida 33617

8825John R. Thomas, Esquire

8829Thomas & Associates, P.A.

88332 33 Third Street, North

8838Suite 101

8840St. Petersburg, Florida 33701

8844NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

8850All parties have the right to submit written exceptions within

886015 days from the date of this Recommended Order. Any exceptions

8871to this Recommended Orde r should be filed with the agency that

8883will issue the final order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 08/12/2002
Proceedings: Final Order filed.
PDF:
Date: 07/30/2002
Proceedings: Agency Final Order
PDF:
Date: 06/24/2002
Proceedings: Recommended Order
PDF:
Date: 06/24/2002
Proceedings: Recommended Order issued (hearing held May 20-22, 2002) CASE CLOSED.
PDF:
Date: 06/24/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 06/17/2002
Proceedings: Petitioner`s Second Notice of Filing SJRWMD`S Fourth Amended Order Declaring a Severe Water Shortage as Petitioner`s EXH. No. P-10 filed.
PDF:
Date: 06/14/2002
Proceedings: Letter to Judge Davis from M. Lytle enclosing electronic version of the applicant`s models submitted during the hearing held May 20-22, 2002 filed.
PDF:
Date: 06/10/2002
Proceedings: Petitioner`s Notice of Filing SJRWMD`S Fourth Amended Order Declaring a Severe Water Shortage as Petitioner`s EXH. No. P-10 filed.
PDF:
Date: 06/03/2002
Proceedings: Notice of filing Joint Proposed Recommended Order of Respondent and Intervenors filed.
PDF:
Date: 06/03/2002
Proceedings: Petitioners` Joint Proposed Recommended Order filed.
PDF:
Date: 06/03/2002
Proceedings: Joint Proposed Recommended Order of the Respondents and Intervenors filed.
PDF:
Date: 05/29/2002
Proceedings: Letter to Judge Davis from M. Chumbler enclosing 4 exhibits filed.
PDF:
Date: 05/24/2002
Proceedings: Transcript of Proceedings (Volume1-6) filed.
PDF:
Date: 05/24/2002
Proceedings: Notice of Filing Transcript filed by Respondent/Intervenor.
Date: 05/20/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 05/15/2002
Proceedings: Joint Prehearing Stipulation (filed via facsimile).
PDF:
Date: 05/13/2002
Proceedings: Amended Notice of Hearing issued. (hearing set for May 20 through 23, 2002; 10:30 a.m.; Bushnell, FL, amended as to location and additional date).
PDF:
Date: 05/13/2002
Proceedings: Letter to Judge Davis from M. Chumbler confirming conversation of the location change for hearing. (filed via facsimile).
PDF:
Date: 05/13/2002
Proceedings: Notice of Taking Deposition Duces Tecum, D. Seereeram, S. Farnsworth (filed via facsimile).
PDF:
Date: 05/08/2002
Proceedings: Notice of Taking Deposition, K. Roop, T.D. Farnsworth, R. Weir, A. Varnum, W. Wing, Mr. Paxton (filed via facsimile).
PDF:
Date: 05/06/2002
Proceedings: Villages of Lake-Sumter, Inc.`s Notice of Filing Answers to Petitioners` First Set of Interrogatories (filed via facsimile).
PDF:
Date: 05/06/2002
Proceedings: Response of the Villages Water Conservation Authority to Petitioners` Request for Production of Documents (filed via facsimile).
PDF:
Date: 05/06/2002
Proceedings: Response of the Villages of Lake-Sumter, Inc., to Petitioners` Request for Production of Documents (filed via facsimile).
PDF:
Date: 05/06/2002
Proceedings: Intervenor`s Notice of Filing Answers to Petitionees` First Set of Interrogatories (filed via facsimile).
PDF:
Date: 05/06/2002
Proceedings: Notice of Appearence (filed by S. Rushing via facsimile).
PDF:
Date: 05/02/2002
Proceedings: Respondent Southwest Florida Water Management District`s Response to Petitioners` Request for Production (filed via facsimile).
PDF:
Date: 05/02/2002
Proceedings: Notice of Service of Respondent Southwest Florida Water Management District`s Answers to Petitioners` First Set of Interrogatories to the District (filed via facsimile).
PDF:
Date: 05/02/2002
Proceedings: Respondent Southwest Florida Water Management District`s Answers to Petitioner`s First Set of Interrogatories to the District (filed via facsimile).
PDF:
Date: 04/25/2002
Proceedings: Order issued. (deadline for intervenors to deliver their responses to the April 17, 2002 discovery is shorten to 5/2/02)
PDF:
Date: 04/23/2002
Proceedings: Intervenors` Amended Response to Motion to Shorten Discovery Response Time filed.
PDF:
Date: 04/23/2002
Proceedings: Intervenors` Response to Motion to Shorten Discovery Response Time filed.
PDF:
Date: 04/22/2002
Proceedings: Motion to Shorten Time for Response to Petitioners` Initial Written Discovery, or in the Alternative Motion for Continuance (filed by Petitioner via facsimile).
PDF:
Date: 04/18/2002
Proceedings: Amended Notice of Serving Petitioners` First Set of Interrogatories to the Utility (filed via facsimile).
PDF:
Date: 04/18/2002
Proceedings: Amended Notice of Serving Petitioners` First Set of Interrogatories to the Applicant (filed via facsimile).
PDF:
Date: 04/18/2002
Proceedings: Amended Notice of Serving Request for Production (filed by Petitioner via facsimile).
PDF:
Date: 04/18/2002
Proceedings: Notice of Appearance (filed by Petitioner via facsimile).
PDF:
Date: 04/11/2002
Proceedings: Amended Notice of Hearing issued. (hearing set for May 20 through 22, 2002; 10:30 a.m.; Bushnell, FL, amended as to issues).
PDF:
Date: 04/09/2002
Proceedings: Amended Notice of Hearing issued. (hearing set for May 20 through 22, 2002; 10:30 a.m.; Bushnell, FL, amended as to time of hearing).
PDF:
Date: 03/29/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 03/29/2002
Proceedings: Notice of Hearing issued (hearing set for May 20 through 22, 2002; 9:00 a.m.; Bushnell, FL).
PDF:
Date: 03/28/2002
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 03/27/2002
Proceedings: Respondent/Intervenors First Request to Produce to Petitioner T. Daniel Farnsworth (filed via facsimile).
PDF:
Date: 03/27/2002
Proceedings: Respondent/Intervenors First Request to Produce to Petitioner Aubrey Varnum (filed via facsimile).
PDF:
Date: 03/27/2002
Proceedings: Respondent/Intervenors First Request to Produce to Petitioner Kenneth Roop (filed via facsimile).
PDF:
Date: 03/27/2002
Proceedings: Respondent/Intervenors First Request to Produce to Petitioner SCAID (filed via facsimile).
PDF:
Date: 03/26/2002
Proceedings: First Interrogatories to Sumter Citizens Against Irresponsible Development, Inc. filed by M. Chumbler
PDF:
Date: 03/26/2002
Proceedings: Notice of Serving First Interrogatories on Sumter Citizens Against Irresponsible Development, Inc. filed by M. Chumbler
Date: 03/26/2002
Proceedings: First Interrogatories to the Petitioner, Kenneth Roop filed by M. Chumbler
PDF:
Date: 03/26/2002
Proceedings: Notice of Serving First Interrogatories on Petitioner, Kenneth Roop filed by M. Chumbler
PDF:
Date: 03/26/2002
Proceedings: First Interrogatories to Petitioner, T. Daniel Fransworth filed by M. Chumbler
PDF:
Date: 03/26/2002
Proceedings: Notice of Serving First Interrogatoires on Petitioner, T. Daniel Fransworth filed by M. Chumbler
PDF:
Date: 03/26/2002
Proceedings: First Interrogatories to Petitioner, Aubrey Varnum filed by M. Chumbler
PDF:
Date: 03/26/2002
Proceedings: Notice of Serving First Interrogatories on Petitioner, Aubrey Varnum filed by M. Chumbler
PDF:
Date: 03/25/2002
Proceedings: Order Granting Consolidation and Intervention issued. (consolidated cases are: 02-001122, 02-001123)
PDF:
Date: 03/21/2002
Proceedings: Initial Order issued.
PDF:
Date: 03/21/2002
Proceedings: The Utility`s Request for Leave to Intervene filed.
PDF:
Date: 03/21/2002
Proceedings: Motion to Consolidate (case nos. 02-1122, 02-1123, 02-1124) filed by Respondent.
PDF:
Date: 03/20/2002
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 03/20/2002
Proceedings: Notice of Proposed Agency Action filed.
PDF:
Date: 03/20/2002
Proceedings: Agency referral filed.

Case Information

Judge:
DON W. DAVIS
Date Filed:
03/20/2002
Date Assignment:
04/09/2002
Last Docket Entry:
08/12/2002
Location:
Bushnell, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (5):