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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMTER CITIZENS AGAINST )

IRRESPONSIBLE DEVELOPMENT, )

INC.; KENNETH ROOP; and AUBREY )

VARNUM, )

)

Petitioners, )

)

vs. ) Case No. 02 - 1122

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and NORTH )

SUMTER UTILITY COMPANY, )

)

Respo ndents, )

)

and )

)

THE VILLAGES WATER CONSERVATION )

AUTHORITY, L.L.C., )

)

Intervenor. )

)

SUMTER CITIZENS AGAINST )

IRRESPONSIBLE DEVELOPMENT, )

INC.; KENNETH ROOP; AUBREY )

VARNUM; and T. DANIEL )

FARNSWORTH, )

)

Petitioners, )

)

vs. ) Case No. 02 - 1123

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and THE )

VILLAGES OF LAKE - SUMTER, INC., )

)

Respondents. )

)

SUMT ER CITIZENS AGAINST )

IRRESPONSIBLE DEVELOPMENT, )

INC.; KENNETH ROOP; and AUBREY )

VARNUM, )

)

Petitioners, )

)

vs. ) Case No. 02 - 1124

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and THE )

VILLAGES OF LAKE - SUMTER, INC., )

)

Respondents, )

)

and )

)

THE VILLAGES WATER CONSERVATION )

AUTHORITY , L.L.C., )

)

Intervenor. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a final hearing in the

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

Florida. The following appearances were entered:

APPEARANCES

For Petitioners, Sumter Citizens Against Irresponsible

Development, Inc., and T. Daniel Farnsworth:

John R. Thomas, Esquire

Thomas & Associates, P.A.

233 Third Street, North

Suite 101

St. Petersburg, Florida 33701

For Petitioners, Kenneth Roop and Aubrey Varnum:

Michael A. Skelton, Esquire

11007 North 56th Street

Suite 204

Temple Terrace, Florida 33617

For Respon dent, Southwest Florida Water Management

District:

Margaret M. Lytle, Esquire

Steve Rushing, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

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

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

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

Martha Harrell Chumbler, Esquire

Nancy G. Linnan, Esquire

Carlton Fields Law Firm

Post Office Drawer 190

Tallahassee, Florida 32302 - 0190

STATEM ENT OF THE ISSUE

Whether proposed Water Use Permits Nos. 20012236.000 (the

Potable Water Permit) and 20012239.000 (the Irrigation Permit)

and proposed Environmental Resource Permit No. 43020198.001 (the

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

Management District (the District).

PRELIMINARY STATEMENT

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

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

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

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

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

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

the general partner of both the Utility and the Authority,

applied f or a permit to construct a stormwater management system

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

Issuance of the Potable Water and Irrigation Permits are subject

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

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

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

Florida Administrative Code.

After initial application submittals and receipt of

additional information and clarification from the applicants

with regard to all three applications, the District issued

notices of its proposed issuance, together with proposed permits

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

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

Permit on January 29, 2 002.

On February 22, 2002, Sumter Citizens Against Irresponsible

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

District’s proposed agency action on each of the three

applications. The District entered orders dismissing the

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

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

Varnum, and T. Daniel Farnsworth - filed amended verified

petitions challenging the issuance of the permits. These

amended petitions, although specifical ly brought pursuant to

Section 403.412, Florida Statutes, also allege that the

Petitioners will be substantially affected by the issuance of

the permits.

Prior to transmittal of the proceedings to the Division of

Administrative Hearings (DOAH), the Distri ct dismissed

Farnsworth, with prejudice, from the two proceedings challenging

issuance of the Potable Water and Irrigation Permits, as his

petitions were untimely. The amended petitions of SCAID, Roop

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

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

were received by DOAH, the Utility and the Authority filed

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

have all three proceedings consolidated. All three motions

were granted and the consolidated proceeding was scheduled for

hearing on May 20 through 23, 2002.

In the Prehearing Stipulation, the Petitioners allege that

the rule criteria for issuance of the three permits have not

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

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

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

Applicants are entitled to have the permits issued.

At the final hearing, the District and the Applicants

join tly presented the testimony of three fact witnesses:

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

presented the testimony of five expert witnesses: Vivian

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

permitting; Kenn eth Barrett, an expert in surface water

management and environmental resource permitting; Leonard

Bartos, an expert in limnology, wetlands delineation, wetlands

mitigation, and environmental resource and water use permitting;

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

use permitting; and Nicholas Andreyev, an expert in geotechnical

engineering and geohydrology. In addition, the District and the

Applicants offered into evidence 28 exhibits, all of which were

admitted.

Petitioners offe red the factual testimony of the three

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

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

Russell Weir. Petitioners also offered the expert testimony of

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

engineering, hydrology, and hydrogeology - and offered into

evidence the deposition of Andreyev. Twelve (12) exhibits

offered by Petitioners were admitted.

The parties jointly introduced five exhibits that were

received into t he record.

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

2002, and the parties filed their Proposed Recommended Orders

ten days thereafter on June 3, 2002.

FINDINGS OF FACT

The Parties

1. The individual Petitioners, Farnsworth, Roop, and

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

2. None of the individual Petitioners offered any evidence

relating to direct impacts that the ERP would have on their

property. With respect to the Potable Water and Irrigation

Permits, anecd otal testimony was presented by Petitioners and

Wing and Weir relating to well failures and sinkholes in the

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

to the property encompassed by the three permits. Petitioner

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

from the project boundary. Wing and Weir live approximately

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

respectively.

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

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

identified only Roop and Varnum as members who will be directly

affected by the activities to be authorized by the permits.

4. The District is the administrative agency charged with

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

water resources within its boundaries.

5. The Utility and the Authority are limited liability

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

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

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

Public Service Commission, while the Authority which will

provide irrigation water, is not.

The Villages Inc., Development

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

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

Marion, and Sumter Counties. Development has been on going

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

2019.

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

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

in Lake County and the extreme northeast corner of Sumter

County. The portion located in Marion County is 60 percent

complete, with 750 homes completed and another 600 under

construction. Approximate ly another 22,000 residences are

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

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

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

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

permits authorize development activities beyond that time frame.

Generally speaking, the three permits at issue include an area

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

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

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

built - out during the terms of three proposed permits.

Area Hydrology and Topography

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

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

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

these constitute the surficial aquifer and are extremely leaky,

allowing water to percolate easily through to a lower layer.

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

surficial aquifer except after rainfall events.

9. The clayey sand layer is underlain by the Upper

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

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

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

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

that serves as a confining layer between the Upper Floridan

production zone and the Lower Floridan production zone. This

confining layer, which was confirmed by drilling at three

locations in the Villages Inc. is approximately 150 feet thick

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

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

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

production zone.

10. While testing conducted on the project site indicated

almost no leakage between the Upper and Lower Floridan

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

some exchange of water between the two layers.

11. Both the Upper and the Lower Floridan contain water

that meets potable water standards and both are considered water

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

significantly different.

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

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

the collapse of the overburden above subsurface cavities which

have been formed through a very gradual dissolution of

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

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

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

other small wetlands.

The Potable Water and Irrigation Permits

14. The potable water permit is for the withdrawal from

the Upper Floridan Aquifer of 1.164 million gallons of water per

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

and both commercial and recreational establishments. It also

limits the maximum withdrawal during peak months to 2.909 MGD.

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

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

use in irrigation. The peak month usage rate permissible under

the proposed permit would be 9.090 MGD. Water withdrawal under

the Irrigation Permit will be used for the irrigation of

residential lawns, common areas, commercial landscaping, and

golf courses.

Modeling of Drawdowns

16. In assessing the impacts of proposed water withdrawals

from an aquifer, District personnel considered effects o n the

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

generated models of the predicted effects of the Potable Water

and Irrigation Permits withdrawals provided one of the principal

bases for this assessment. The primary geologist assigned t o

review the permit applications reviewed two of the models

submitted by the Utility and the Authority (jointly the WUP

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

predict the effects of the proposed withdrawals on the aquifers,

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

particular, the models predict both the vertical and horizontal

extent to which the withdrawals may lower the level of water

within the aquifers and in - surface waters under various

conditions.

17. One of the models submitted by the WUP Applicants

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

the other predicted the impacts of the withdrawals over the life

of the permits, considered cumulatively with the effects of

withdrawals from the already - existing Villages' development in

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

modeled the impacts of the withdrawals over the life of the

permits and included the cumulative effects of all of the

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

models included the combined effects of both the proposed

Potable Water and the Irrigation Permits.

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

will be no significant drawdowns as a result of the withdrawals

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

only predicted drawdown in the surficial aquifer (0.25 feet of

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

features. Drawdown in the Upper Floridan is predicted at

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

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

drawdowns are not expected to cause any adverse impacts.

19. Transmissivity is the rate at which water moves

horizontally through the aquifer. In areas with high

transmissivity, the results of water withdrawals from an aquifer

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

Water withdrawals from areas of low transmissivity will result

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

but steeper vertically. The use of too high a transmissivity

rate in a model, would overpredict the horizontal distance of

the drawdowns caused by withdrawals, but would underpredict the

vertical drawdown in the immediate vicinity of th e withdrawal.

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

the effects in the immediate vicinity of the withdrawal but

underpredict the lateral extent of the drawdown.

20. The WUP Applicants’ models used a transmissivity value

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

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

transmissivity values from a regional model prepared by the

University of Florida. The regional model uses a transmissivity

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

Floridan. While that transmissivity is appropriate for

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

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

Applicants’ consultant met with Di strict representatives and

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

Florida model. A similar approach was used for the

transmissivity value used in modeling effects in the Upper

Floridan.

21. Notably, specific transmissivity values reco rded in

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

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

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

transmissivity measured in these wells reflect condition s in the

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

transmissivity of the Lower Floridan production zone. Further,

site - specific information on transmissivity, measured during

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

transmissivity of the aquifer, even at short distances from the

wellansmissivities measured at individual wells are used to

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

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

use of transmissivities derived from the regional model, but

adjusted to be conservative, is entirely appropriate.

24. Moreover, using a transmissivity in her modeling of

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

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

impacts.

25. Leakance is the measure of the resistance of movement

vertically through confining units of the aquifer. The leakance

value used by the District for the confining layer between the

Upper and Lowe r Floridan was taken from the University of

Florida model. Tests conducted on the site actually measured

even lower leakance values. Thus, the evidence establishes that

the leakance value used in the WUP Applicants’ and the

District’s modeling for the Fl oridan confining layer was

reasonable and appropriate.

26. Competent, substantial evidence also establishes that

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

Applicants submitted to the District substantial data, gathered

over several years, reflecting the balance of water flowing into

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

potentiometric surface. This documentation verified the

leakance value used for Lake Miona in the modeling.

27. Finally, the District modeling used a ppropriate

boundary condition parameters. The District modeling used what

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

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

boundary simulates the discharge of the aquifer at a certai n

level. The use of constant head boundaries is an accepted

practice.

28. The modeling conducted on behalf of the District and

the Applicants provides a reasonable assurances that the Potable

Water and Irrigation Permits will not cause adverse water

qual ity or quantity changes to surface or groundwater resources,

will not cause adverse environmental impacts to natural

resources, and will not cause pollution of the aquifer.

Furthermore, because the predicted drawdowns are so

insignificant, reasonable assu rances have been provided that the

withdrawals will not adversely impact existing off - site land

uses or existing legal withdrawals. The modeling also provides

reasonable assurances that the withdrawals will not be harmful

to the water resources of the Dis trict.

29. Moreover, monitoring requirements included in the

proposed Potable Water and Irrigation Permits provide additional

reasonable assurance that – should the withdrawal effects exceed

those predicted by the modeling – such effects are identified

and necessary steps are taken to mitigate for any potential

impacts. The District has reserved the right to modify or

revoke all or portions of the water use permits under certain

circumstances.

30. Specifically, the proposed Potable Water Permit

requires a monitoring plan that includes the following pertinent

provisions:

b. There shall be no less than three

control wetland and ten onsite wetland

monitoring sites;

c. A baseline monitoring report, outlining

the current wetland conditions;

* * *

e. A statement indicating that an analysis

of the water level records for area lakes,

including Miona Lake, Black Lake, Cherry

Lake, Lake Deaton and Lake Griffin, will be

included in the annual report;

f. A statement indicating that an analysis

of the spri ng flow records for Gum Spring,

Silver Spring, and Fenney Spring, will be

included in the annual report;

* * *

i. Wildlife analyses for potentially

impacted wetlands, lakes, and adjacent

property owner uses or wells, including

methods to determine s uccess of the

mitigation;

j. A mitigation plan for potentially

impacted wetlands, lakes, and adjacent

property owner uses or wells, including

methods and thresholds to determine success

of the mitigation;

k. An annual report of an analysis of the

monitor ing data . . . .

Similar provisions are included in the proposed irrigation

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

have developed sites and methodologies for this monitoring.

Reasonable Demand

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

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

the simple multiplication of the number of residences to be

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

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

historical absorption rates within the Villages Inc. development

since 1983, an absorption rate that doubles approximately every

five years .

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

gallons per day for potable use only. Distri ct personnel

independently verified that per capita rate, based upon current

usage in the existing portions of the Villages Inc. and

determined that the rate was reasonable. Based upon the

population projections and the per capita rate, the District

deter mined that there is a reasonable demand for the withdrawal

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

in the Potable Water Permit.

33. The Utility has provided reasonable assurance

regarding the Utility’s satisfaction of this permittin g

criterion.

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

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

acres of property that will require irrigation. The amount of

water originally requested by the Authority for irrigat ion

withdrawals was reduced during the course of the application

process at the request of the District.

35. The District determined the reasonable amount of

irrigation water needed through the application of AGMOD, a

computer model that predicts the irri gation needs of various

vegetative covers. Since the Authority intends to utilize

treated wastewater effluent as another source of irrigation

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

permit to be withdrawn from the Lower Floridan for irrigation.

The District, thus, determined that the Authority would

need 1.59 MGD annual average for recreational and aesthetic area

irrigation and 1.26 MGD annual average for residential lawn

irrigation, for a total of 2.85 MGD.

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

in lined ponds for irrigation use. However, unlike its

treatment of wastewater effluent, the District did not deduct

accumulated stormwater from the amount of water deemed necessary

for irrigation. This approach was adopted due to the inability

to predict short - term rainfall amounts.

37. The uncontroverted evidence of record establishes

reasonable assurances that there is a reasonable demand for the

amount of water to be withdrawn under the proposed irrigation

permi t.

Conservation and Reuse Measures

38. Both the Utility and the Authority applications

included proposed measures for the conservation and reuse of

water. The conservation plan submitted in conjunction with the

irrigation permit application provides for control valves to

regulate both the pressure and timing of irrigation by

residential users; contractual restrictions on water use by

commercial users; xeriscaping; and an irrigation control system

for golf course irrigation that is designed to maximize th e

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

the District requires the Utility and the Authority to expand

upon these conservation measures through such measures as

educational efforts, inclined block rate structures, and annual

reporti ng to assess the success of conservation measures.

39. The Authority also committed to reduce its dependence

on groundwater withdrawals through the reuse of wastewater

effluent, both from the on - site wastewater treatment facility

and through contract with the City of Wildwood. Reasonable

assurances have been provided that conservation measures have

been incorporated and that, to the maximum extent practicable,

reuse measures have been incorporated.

Use of Lowest Available Quality of Water

40. In additio n to the reuse of treated wastewater

effluent, the Authority intends to minimize its dependence on

groundwater withdrawals for irrigation use through the reuse of

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

stormwater retention ponds to be constructed by the Villages

Inc. are designed as a component of the irrigation system

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

each group linked through underground piping. There will be an

electronically controlled valve i n the stormwater pond at the

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

irrigation purposes.

41. These lined stormwater ponds serve several purposes.

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

stormwater for irrigation is the inclusion of additional storage

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

be withdrawn for irrigation purposes unless the level of

stormwater in these lined ponds drops below a designed minimum

irrigation level. Groundwater pumped into these ponds will then

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

irrigation is minimized. The Authority has met its burden of

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

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

establishes that there are only minor differences between the

water quality in the Upper Floridan and Lower Floridan in this

area. The Upper Floridan is a reasonable source for potable

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

provided by the Utility that it will utilize the lowest water

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

Waste of Water

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

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

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

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

relating to this project and nothing in the record to suggest

that the groundwater withdrawals by either the Utility or the

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

system.

44. Additionally, the evidence establishes that, to the

extent groundwater will be withdrawn from the Lower Floridan and

pumped into lined stormwater ponds, such augmentation is not for

an aesthetic purpose. Instead, the groundwater added to those

ponds will be utilized as an integral part of the irrigation

system and will be limited in quantity to the amount necessary

for immediate irrigation needs.

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

beneficial potable and irrigation uses, rather than wasteful

purposes. Under current regulation, water lost from lined

stormwater ponds through evaporation is not considered as waste.

Thus, the Authority and the Utility have provided reasonable

assurances that their withdrawals of groundwater will not result

in waste.

The ERP

46. The stormwater management system proposed by the

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

residential, commercial, golf course, and other recr eational

development will ultimately be constructed. However, the

proposed permit currently at issue is preliminary in nature and

will only authorize the construction of stormwater ponds,

earthworks relating to the construction of compensating flood

stora ge, and wetland mitigation.

Water Quality Impacts

47. The stormwater management system will include eight

shallow treatment ponds that will be adjacent to Lake Miona and

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

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

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

provide water quality treatment.

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

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

water quality treatment of such water before it is discharged

into the lakes. The water quality treatment provided by these

ponds provides reasonable assurances that the project will not

adversely impact the water quality of receiving waters.

49. Whi le they do not discharge directly to surface

receiving waters, the lined retention ponds do provide

protection against adverse water quality impacts on groundwater.

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

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

prevent the discharge of pollutants through the highly permeable

surface strata into the groundwater. The Villages Inc. designed

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

Department of Environme ntal Protection during the DRI process

regarding potential pollutant loading of the aquifer at the

retention pond sites. Furthermore, by distributing the

accumulated stormwater - through the irrigation system - over a

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

water quality treatment will be achieved than if the stormwater

were simply permitted to percolate directly through the pond

bottom.

50. There is no reasonable expectation that pollutants

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

dry ponds were used, there would be an accumulation of

pollutants in the pond bottom. These measures provide

reasonable assurances that there will be no adverse impact on

the quality of receiving waters.

Water Quantity Impacts

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

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

such ponds on water quantity, the evaporative losses from lined

ponds as opposed to unlined ponds is a differential of

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

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

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

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

provided by the lined ponds.

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

expanded and other water bodies will be created. After

rainfalls, these unlined ponds will be filled with water and

will lose as much water through evaporation as would any other

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

will distribute the accumulated stormwater across the project

site through the irrigation of vegetated areas.

53. The documentation submitted by the Villages Inc.

establishes that the ERP will not cause adve rse water quantity

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

permitting criterion.

Flooding, Surface Water Conveyance, and Storage Impacts

54. Parts of the project are located in areas designated

by the Federal Emergency Management Ad ministration (FEMA) as

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

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

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

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

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

The District has determined, based upon the documentation

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

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

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

being created.

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

flood zone primarily in the areas of Dry Prairie and Cherry

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

operation authorized by DEP permit. Mining has occurred at that

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

by the Villages Inc. provides reasonable assurance that it will

sufficiently compensate for any loss of flood basin st orage.

57. The Villages Inc.'s project provides reasonable

assurance that it will neither adversely affect surface water

storage or conveyance capabilities, surface or groundwater

levels or surface water flows nor cause adverse flooding. Each

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

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

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

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

extra o ne foot of freeboard above that needed for the

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

additional 100 acres of flood storage beyond that which will be

lost through construction on - site.

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

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

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

Lake Miona and delivered to the retention ponds and to certain

golf course fairways located such that habitable living spaces

would not be endangered.

Environmental Impacts and Mitigation

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

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

acres of wetlands will be impacted by the work that is

authorized under the ERP. Each of these impacted wetlands,

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

impacts include both fill and excavation and all will be

permanent.

60. When assessing wetland impacts and proposed mitigation

for those impacts, the District seeks to ensure that the

activities proposed will not result in a net loss of wetland

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

function at least as well as did the wetlands in their

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

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

isolated wetlands are not completely without value, large

wetland ecosystems – which are less susceptible to surrounding

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

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

mitigation for the loss of habitat in wetlands of less than

0.5 acre, except under certain limited circumstances, including

where the wetland is utilized by threatene d or endangered

species.

61. Some wetlands that will be impacted by the Villages

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

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

mitigation for the wetlands impacts that will result from its

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

acres of mitigation are proposed by the Villages Inc.

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

Approximately 11 acres of this new wetland will consist of a

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

proposes to undertake substantial enhancement of Dry Prairie, a

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

nineties – Dry Prairie received discharge water from the peat

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

mining operations stop, Dry Prairie would naturally become drier

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

habitat function that it has been providing. The Villages

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

hydroperiods of Dry Prairie, thus ensuring its continued habitat

value.

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

upland buffers around wetlands and surface waters by planting

natural vegetation, thus providing a natural barrier. Placement

of these buffers in conservation easements does not provide the

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

required anyway. However, the District determined that the

enhancement of these areas p rovided functional value to the

wetlands and surface waters that would not be served by the

easements alone.

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

easement over certain areas, including a 1500 - foot radius

preserve required by the Fish a nd Wildlife Conservation

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

areas will also be used for the relocation of gopher tortoises

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

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

area, it will receive no mitigation credit for such enhancement

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

the conservation easement will remain in effect in perpetuity,

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

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

and provides threatened and endangered species habitat.

65. In order to provide additional assurances that these

mitigation efforts will be successful, the District has include d

a condition in the proposed permit establishing wetland

mitigation success criteria for the various types of proposed

mitigation. If these success criteria are not achieved,

additional mitigation must be provided.

66. With the above described mitigati on, the activities

authorized under the ERP will not adversely impact the

functional value of wetlands and other surface waters to fish or

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

reasonable assurances relating to this permit criterion.

Capability of Performing Effectively

67. The Villages Inc. has also provided reasonable

assurances that the stormwater management system proposed is

capable of functioning as designed. The retention ponds

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

require complicated maintenance procedures.

68. In its assessment of the functional capability of the

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

stormwater that the system might contribute for irrigation

purposes. Rathe r, it focused its consideration on the

stormwater management functions of the system. The question of

the effectiveness of the system for irrigation purposes is not

relevant to the determination of whether the Villages Inc. has

met the criteria for permit issuance. Consequently, the record

establishes that the documentation provided by the Villages Inc.

contains reasonable assurances that the stormwater system will

function effectively and as proposed.

Operation Entity

69. The Villages Inc. has created Community Development

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

responsible for the construction and maintenance of the

stormwater system. CDD No. 5 will finance the construction

through special revenue assessment bonds and will finance

m aintenance through the annual assessments. Similar community

development districts were established to be responsible for

earlier phases of the Villages Inc.

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

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

provide the District with documentation of the creation of a

community development district or present the District with a

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

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

now been created, there are reasonable assurances of financial

responsibility.

Secondary and Cumulative Impacts

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

and reliable information sufficient to establish that there are

reason able assurances that the proposed stormwater system will

not cause unacceptable cumulative impacts upon wetlands or other

surface waters or adverse secondary impacts to water resources.

The system is designed in a manner that will meet water

treatment cri teria and there will be no secondary water quality

impacts. Further, the use of buffers will prevent secondary

impacts to wetlands and wetland habitats and there will be no

secondary impacts to archeological or historical resources. In

this instance, the stormwater system proposed by the Villages

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

or water quality functions lost by construction of the system.

72. In its assessment of the possible cumulative impacts

of the system, the District considered areas beyond the bounds

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

currently being reviewed under the DRI process as a substantial

deviation. The District’s environmental scientist, Leonard

Bartos, also reviewed that porti on of the substantial deviation

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

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

review agencies that comments on DRI and substantial deviation

applications. When such an applic ation is received by the

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

division for review. The District includes its knowledge of the

DRIs in its determination that there are no cumulative impacts.

Reasonable assurances have been provided as to these permitting

criteria.

Public Interest Balancing Test

73. Because the proposed stormwater system will be located

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

provide reasonable assurances that the system will not be

contrary to t he public interest. This assessment of this

permitting criteria requires that the District balance seven

factors. While the effects of the proposed activity will be

permanent, the Villages Inc. has provided reasonable assurances

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

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

flow of water; on environmental resources, including fish and

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

Furthermore, the District has carefully assessed the current

functions being provided by the affected wetland areas. With

respect to historical or archeological resources, the Villages

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

Division of Historical Resources, s tating that there are no

significant historical or archeological resources on the project

site that is the subject of this permit proceeding.

74. Thus, the evidence establishes reasonable assurances

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

to the public interest. Additionally, the District and

Applicant presented uncontroverted evidence that the proposed

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

that there are no applicable special basin or geographic area

criter ia.

CONCLUSIONS OF LAW

75. The Division of Administrative Hearings has

jurisdiction of the subject matter pursuant to Section 120.57,

Florida Statutes.

76. None of the individual petitioners have established

that they are substantially affected parties . In addition, the

president of SCAID has testified that only two of its 130

members will be directly affected by the project. Nonetheless,

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

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

permitting proceedings pursuant to Section 403.312, Florida

Statutes. Such intervention includes the right to petition for

a hearing under Sections 120.569 and 120.57, Florida Statutes.

77. This is a de novo proceeding intended to formulate

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

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

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

of the evidence, that the criteria for permitting have been

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

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

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

present a prima facie case, based on credited and credible

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

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

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

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

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

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

at 21. "'Reasonable assurance' contemplates a substantial

likelihood that the project will be successfully

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

natural r esources, Florida courts have allowed agencies

flexibility in interpreting "reasonable assurances" and in

applying individual permit standards based on a totality of

circumstances. . . . Fulford v. Southwest Florida Water

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

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

anticipate that when agency employees or officials having

special knowledge or expertise in the field accept data and

information supplied by the applicant, the same data an d

information, when properly identified and authenticated as

accurate and reliable by agency or other witnesses, will be

readily accepted by the hearing officer, in the absence of

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

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

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

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

the burden of going forward with contrary evidence shifts to the

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

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

presentation by the opponents of contrary evidence, equivalent

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

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

contrary possibilities or address impacts which are only

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

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

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

speculation of what "might" occur).

81. The permitting criteria relevant to the issuance of a

water use permit by the District are set forth in Rule

40D - 2.301, Florida Administrative Code, and are expanded upon in

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

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

their burden, having presented accurate and reliable information

that has been identified and authenticated by the District. The

Petitioners failed to pres ent equivalent evidence to the

contrary.

82. Petitioners’ assertions that the proposed water use

permits will cause water to go to waste reflects a

misunderstanding of that permitting criterion. Section 4.12 of

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

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

373.203(4)." 2 Waste is the causing of excess water to run into a

surface water system, unless the water is thereafter put to

beneficial use." The Basis of Review further states

specifically that the withdrawal of water for augmentation of a

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

beneficial use such as golf course irrigation and if the

quantity of water withdrawn is limited to that needed for such

use.

8 3. Since the Petitioners have not presented contrary

evidence of equivalent quality to that presented by the

Respondents, the Utility and the Authority have met their burden

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

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

extent that the Petitioners seek to have the permits denied,

based upon unadopted objectives or unwritten policies, such

considerations are not relevant to the permitting decisions at

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

solely on compliance with applicable permit criteria." Driscoll

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

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

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

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

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

applicable permitting rule or the requisite showing under

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

unadopted rule, consistency with agency objectives is not a

criterion for permit issuance).

84. Similarly, the Villages Inc. together with the

District, presented a prima facie case satisfying all of the

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

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

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

Environmental Resource Permit Applications within the Southwest

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

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

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

require some consideration in these conclusions of law.

85. Section 2.6.1 identifies the entities or persons that

wil l be considered acceptable to satisfy the requirement that a

proposed stormwater system is capable of being effective in

performance and functioning as proposed and that the activity

being permitted will be conducted by an entity with the

financial, legal , and administrative capabilities to ensure the

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

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

criteria). Included among those acceptable entities are

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

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

intends that responsibility for construction and maintenance of

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

two permitting criteria have been satisfied.

86. The ERP Basis of Review also provides clarification of

the permitting criteria relating to the assessment of potential

flooding and water quantity impacts. For example, it provides

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

must be replaced with compensating storage capacity. The

Villages Inc. has satisfied this requirement.

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

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

characteristics." Whil e the Petitioners argue that this

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

retention ponds, the preponderance of the evidence does not

support that position. Moreover, as indicated, there are

counterbalancing benefits to the lined po nds that make their

elimination from the proposed system "not practicable."

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

Review states:

Wetlands are important components of the

water resources because they often serve as

spawning, nursery and fe eding habitats for

many species of fish and wildlife, and

because they often provide important flood

storage, nutrient cycling, detrital

production, recreational and water quality

functions. . . Not all wetlands or other

surface waters provide all of thes e

functions, nor do they provide them to the

same extent. . . .

It is the intent of the Governing Board that

the criteria in subsections 3.2 through

3.3.8 [of the ERP Basis of Review] be

implemented in a manner which achieves a

programmatic goal and a pro ject permitting

goal of no net loss of wetlands or other

surface water functions . . . Unless

exempted by statute or rule, permits are

required for the construction, alteration,

operation, maintenance, abandonment and

removal of systems so that the Distri ct can

conserve the beneficial functions of these

communities .

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

Clearly, the District does not intend this requirement to

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

it is the pre servation of equivalent wetland functions that is

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

89. The ERP Basis of Review also provides assistance in

construction of the permitting criteria relating to cumulative

impacts. Section 3.2.8 st ates that, in assessing whether

unacceptable cumulative impacts will occur, consideration must

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

vested pursuant to Section 380.06, Florida Statutes (the DRI

statute), or other activities regulated under Part IV,

Chapter 373, Florida Statutes, which may reasonably be expected

to be located within wetlands or other surface waters in the

same drainage basin.

90. The Villages Inc. has provided the District with

uncontroverted evidence regar ding the potential for cumulative

impacts, including information relating to areas currently under

DRI review. The District has accepted that information as

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

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

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

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is:

RECOMMENDED that a final order be entered issuing Water Use

Permit Nos. 20012 236.000 and 20012239.000 and Environmental

Resource Permit No. 43020198.001, in accordance with the

District’s proposed agency action.

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

Tallahassee, Leon County, Florida.

___________________________________

D ON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of th e

Division of Administrative Hearings

this 24th day of June, 2002.

ENDNOTES

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

Rule 40D - 2.091, Florida Administrative Code.

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

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

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

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

current edition of that document was not incorporated into

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

suggestion that the current edition includes substantive changes

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

application.

COPIES FURNISHED :

E.D. "Sonny" Vergara, Executive Director

Southwest Flo rida Water

Management District

2379 Broad Street

Brooksville, Florida 34609 - 6899

Martha Harrell Chumbler, Esquire

Nancy G. Linnan, Esquire

Carlton Fields Law Firm

Post Office Box 190

Tallahassee, Florida 32302 - 0190

Margaret Lytle, Esquire

Steve Rush ing, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

Michael A. Skelton, Esquire

11007 North 56th Street

Suite 204

Temple Terrace, Florida 33617

John R. Thomas, Esquire

Thomas & Associates, P.A.

2 33 Third Street, North

Suite 101

St. Petersburg, Florida 33701

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 Orde r should be filed with the agency that

will issue the final order in this case.