Environmental Protection Commision of Hillsborough County, Florida and Hillsborough County, Florida,

Petitioners,

v.

TAMPA BAY WATER, a Regional Water
Supply Authority,

Respondent.

________________________________________________/

Arbitration Award for Proposed Tampa Bay Regional Reservoir

Pursuant to Sections 3.13 and 3.16 of the "Amended and Restated Interlocal Agreement Reorganizing the West Coast Regional Water Supply Authority," dated June 10, 1998, this is the arbitration award, including findings of fact and conclusions of law, in the above-captioned proceeding.

Finding of Fact

Background of Parties to Arbitration Proceeding

1. Tampa Bay Water ("TBW") is a regional water supply authority created pursuant to Sections 373.1962, 373.1963 and 163.01, Florida Statutes (2000). TBW was originally created as the West Coast Regional Water Supply Authority in 1974 by an interlocal agreement among Hillsborough County, Pasco County, Pinellas County, the City of Tampa and the City of St. Petersburg. The City of New Port Richey was later added as a member of the West Coast Regional Water Supply Authority. Joint Pre-Hearing Stipulation filed March 16, 2001 ("Joint Pre-Hearing Stipulation"), p.13.

2. The West Coast Regional Water Supply Authority was reorganized and restructured pursuant to the "Amended and Restated Interlocal Agreement Reorganizing the West Coast Regional Water Supply Authority" ("1998 Interlocal Agreement"), dated June 10, 1998. The reorganization of the West Coast Regional Water Supply Authority was expressly authorized by Section 373.1963, Florida Statutes, and was approved by Final Order of the Florida Department of Environmental Protection (FDEP) dated June24, 1998, in OGC Case No. 98-1921. The parties to the 1998 Interlocal Agreement are Hillsborough County, Pasco County, Pinellas County, the City of Tampa, the City of St. Petersburg, and the City of New Port Richey. The Board of TBW is comprised of elected officials from each of the six member governments. Joint Pre-Hearing Stipulation, p. 13.

3. By Joint Resolution No. 98-05, the West Coast Regional Water Supply Authority was renamed "Tampa Bay Water, A Regional Water Supply Authority." Joint Pre-Hearing Stipulation, p. 13.

4. Hillsborough County is a governmental entity and a political subdivision of the State of Florida and a member government of TBW.

5. The Environmental Protection Commission of Hillsborough County ("EPCHC") is a governmental agency statutorily created by a special act of the Legislature.

Need for Tampa Bay Regional Reservoir

6. TBW is the exclusive wholesale water supplier responsible for meeting the potable water needs of its six member governments. The member governments collectively serve approximately 2 million customers. Joint Pre-Hearing Stipulation, p. 14.

7. Under the 1998 Interlocal Agreement, TBW has the unequivocal obligation to meet the potable water needs of its six member governments on a regional basis. The Master Water Supply Contract between TBW and the six member governments outlines how TBW’s facilities will be connected to the member governments' facilities and sets forth provisions for billing and collecting for the sale of water by TBW to the member governments. Joint Pre-Hearing Stipulation, p. 14.

8. TBW’s existing water supply facilities consist of a series of wellfields located throughout Hillsborough, Pinellas and Pasco Counties. These are: the Cypress Creek Wellfield; the Cross Bar Ranch Wellfield; the Cypress Bridge Wellfield; the Northwest Hillsborough Wellfield; the Starkey Wellfield, the North Pasco Wellfield; the South-Central Hillsborough Wellfield; the Cosme-Odessa Wellfield; the Section 21 Wellfield; the South Pasco Wellfield; the Eldridge-Wilde Wellfield; and the Morris Bridge Wellfield. With the exception of the South-Central Hillsborough, Starkey and North Pasco Wellfields, these facilities are interconnected and are part of an interconnected water production system. Joint Pre-Hearing Stipulation, p. 14.

9. The 1998 Interlocal Agreement requires that TBW maintain a supply capacity that is six percent greater than actual demand, on an average annual basis. The failure of TBW to maintain this six percent reserve capacity for a continuous six-month period is defined under the 1998 Interlocal Agreement as "Production Failure." The six percent reserve capacity is intended to create a buffer between demand and permitted capacity. Joint Pre-Hearing Stipulation, p. 14.

10. Should TBW fail to maintain the six percent reserve capacity for a continuous six-month period, a "Production Failure," the member governments are entitled under the 1998 Interlocal Agreement to independently pursue their own water supplies. Joint Pre-Hearing Stipulation, p. 14.

11. In April, 1998, TBW, its six member governments, and the Southwest Florida Water Management District ("SWFWMD") entered into an agreement entitled the "Northern Tampa Bay New Water Supply and Ground Water Withdrawal Reduction Agreement," commonly called the "Partnership Agreement." Joint Pre-Hearing Stipulation, p. 14.

12. The Partnership Agreement has four principal stated objectives: to develop at least 85 million gallons daily ("mgd") annual average of new water supply to meet the needs of the area; to effect a reduction in groundwater pumping from the 11 existing wellfields to no more than 121 million gallons daily annual average as of December
31, 2002 through December 31, 2007, and to no more than 90 mgd annual average as of December 31, 2007 through December 31, 2010, to allow environmental recovery; to end existing litigation between the parties to the Partnership Agreement and avoid future litigation, including administrative proceedings; and to create a funding mechanism through which TBW can develop new water supply projects. Joint Pre-Hearing Stipulation, p. 15.

13. Pursuant to the Partnership Agreement, the existing water use permits for the 11 wellfields specified therein (Cosme-Odessa, Cross Bar Ranch, Cypress Bridge, Cypress Creek, Eldridge-Wilde, Morris Bridge, Northwest Hillsborough Regional, North Pasco, Section 21, Starkey, and South Pasco) were consolidated into a single permit ("Consolidated Permit") under which TBW is the sole permittee. The expiration date of the Consolidated Permit is December 31, 2010. Joint Pre-Hearing Stipulation, p.15.

14. Prior to execution of the Partnership Agreement, the existing permits for the 11 wellfields allowed for cumulative withdrawals totaling approximately 192 mgd. Upon execution of the Partnership Agreement, the Consolidated Permit immediately reduced allowed withdrawals to 158 mgd. Joint Pre-Hearing Stipulation, p. 15.

15. The Partnership Agreement requires that wellfield pumping from the 11 wellfields be further reduced to no more than 121 mgd by December 31, 2002, and then to 90 mgd by December 31, 2007.

16. The Partnership Agreement also requires TBW to develop at least 38 mgd of new water supply by December 31, 2002, and a total of 85 mgd of new water supply by December 31, 2007. Joint Pre-Hearing Stipulation, p. 15.

17. The Partnership Agreement requires TBW to submit to the SWFWMD by July 1, 1998, a "New Water Plan" describing the projects that TBW intends to implement to meet the requirements of 38 mgd of new water supply by December 31, 2002, and 85 mgd of new water supply by December 31, 2007. Joint Pre-Hearing Stipulation, p. 15.

18. TBW and Hillsborough County have each individually approved a "New Water Plan" that is intended to meet the requirements of the 1998 Interlocal Agreement and the Partnership Agreement. The Environmental Protection Commission of Hillsborough County is not a member government and thus did not approve the New Water Plan. Joint Pre-Hearing Stipulation, p. 16.

19. The planning and development of the New Water Plan took into account demand calculations based on population projections and per capita usage, the six percent reserve capacity required under the 1998 Interlocal Agreement, and the wellfield pumping reductions and new water supply requirements mandated by the 1998 Interlocal Agreement and the Partnership Agreement. The New Water Plan is designed to meet all of these requirements, including the projected increased demand during the period between December 31, 2002 (the first phase of wellfield pumping reductions) and December 31, 2007 (the second phase of wellfield pumping reductions). Joint Pre-Hearing Stipulation, p. 16.

20. The New Water Plan includes the following projects: the Brandon Urban Dispersed Wells ("BUDW") project; the North and South Central Interties; a seawater desalination project; and the Enhanced Surface Water System, which includes the Alafia River Project, the Tampa Bypass Canal/Hillsborough River High Water ("TBC") project, the South Central Intertie, the Tampa Bay Regional Surface Water Treatment Plant, and the proposed off-stream water reservoir (described in more detail in subsequent sections of this arbitration award and referred to as the "Proposed Reservoir") that is at issue in this arbitration proceeding. Joint Pre-Hearing Stipulation, p. 16.

21. The Proposed Reservoir will provide an additional 25 mgd of water supply to the region in average year conditions and 40 mgd in drought conditions, without increasing any water use permits. When withdrawals from other surface water sources cannot occur because of drought or other conditions, the Proposed Reservoir can provide up to 66 mgd of water supply.

22. The June 2000 New Water Plan states that the Enhanced Surface Water System is eligible for a maximum of $120 million from SWFWMD, pursuant to its funding obligation under the Partnership Agreement. Joint Pre-Hearing Stipulation, p. 16.

23. TBW does not furnish water to any person or entity other than its six member governments and does not sell any water on a retail basis. All potable water produced by TBW’s facilities is for resale on a wholesale basis to the member governments. Joint Pre-Hearing Stipulation, p. 16.

24. The 1998 Interlocal Agreement empowers TBW to produce and supply drinking water "in such manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of water from concentrated areas." Joint Pre-Hearing Stipulation, p. 17.

Background of This Arbitration Proceeding

25. The 1998 Interlocal Agreement requires the member governments, like Hillsborough County, and TBW to enter into binding arbitration if there is a dispute regarding "Primary Environmental Permit Applications," as that term is defined in the 1998 Interlocal Agreement, for TBW projects. The EPCHC is also subject to the binding arbitration process set forth in the 1998 Interlocal Agreement for Primary Environmental Permit Applications. Hillsborough County, by entering into the Interlocal Agreement, and the EPCHC, by separate agreement with the Authority, waived their right to challenge proposed agency action on Primary Environmental Permit Applications pursuant to Chapter 120, Florida Statutes (2000).

26. On September 18, 2000, TBW’s Board of Directors approved the filing of a joint application for an Environmental Resource Permit from the FDEP and a U. S. Army Corps of Engineers Section 404 Dredge and Fill Permit (collectively "Joint Application") for the Proposed Reservoir. The Proposed Reservoir is designed to be an off-stream water reservoir more particularly described subsequently in this arbitration award. The Joint Application is a "Primary Environmental Permit Application" under the 1998 Interlocal Agreement and is therefore subject to binding arbitration.

27. The approval by TBW of the Joint Application triggered the timetable under the 1998 Interlocal Agreement for appropriate parties to file for binding arbitration. On October 16, 2000, Hillsborough County and EPCHC (jointly referred to herein as "Petitioners") notified TBW of their opposition to the Joint Application and demanded binding arbitration in accordance with the 1998 Interlocal Agreement.

28. The 1998 Interlocal Agreement delineates an expedited and strict procedural process for the binding arbitration, including a detailed discovery process and an expedited time line for the completion of all arbitration proceedings. 1998 Interlocal Agreement, Sections 3.13, 3.16 and Appendix N.

29. This Arbitration Panel was impaneled on November 17, 2000, in accordance with the 1998 Interlocal Agreement. Arbitrator Daniel Fernandez was selected by TBW and arbitrator Daniel Thompson was selected by Petitioners. Arbitrator and Chair of the arbitration panel, Carlos Alvarez, was selected by Mr. Fernandez and Mr. Thompson in accordance with the 1998 Interlocal Agreement. (The three arbitrators are jointly referred to as the "Arbitration Panel.") On December8, 2000, each member of the Arbitration Panel took an oath, pursuant to Section 3.16 of the 1998 Interlocal Agreement, to conduct all of his duties and responsibilities for the totality of the arbitration proceedings with "impartiality and fidelity." 1998 Interlocal Agreement, Section 3.16 (B). In compliance with paragraph 6 the Agreed Order on Case Management dated December 12, 2000, there have been no ex parte communications between the arbitrators and any of the parties or their counsel

30. The Arbitration Panel issued a number of orders throughout the arbitration process. Two of the orders, Order on Motion to Determine Scope of Arbitration and Related Motion to Strike dated December22, 2000 ("Arbitration Panel Order, December 22, 2000"), and Order on Respondent’s Motion for Order Determining Applicable Agency Rules, Policies and Statutes dated February 28, 2001 ("Arbitration Panel Order, February 28, 2001"), are attached as Attachments 1 and 2, respectively, to this arbitration award. Because the substance of these orders defines the scope and nature of the arbitration proceeding and ultimately the arbitration award, these orders are part of this arbitration award.

31. Pursuant to Agreed Order on Case Management Order dated December 12, 2000, and AppendixN of the 1998 Interlocal Agreement, the parties proceeded through an expedited discovery process that ended on March 1, 2001. On February 27, 2001, TBW also submitted to the FDEP the Response to Request for Additional Information ("RAI Response"), which provides additional information about the Proposed Reservoir. The RAI Response was TBW’s answer to the Request for Additional Information ("RAI") submitted by the FDEP in connection with its permitting review of the Joint Application.

32. The final hearing on the arbitration award began on March 16, 2001, and ended on April9, 2001. Within these dates, the Arbitration Panel heard testimony and argument on 13 days. The hearing was held in Hillsborough County with the consent of all the parties.

33. On April 4, 2001, the Arbitration Panel visited the site of the Proposed Reservoir and surrounding areas, accompanied by counsel and consultants for all parties.

34. All parties were represented by counsel. Appearing on behalf of TBW were:
Donald D. Conn, General Counsel
Tampa Bay Water
2535 Landmark Drive, Suite 211
Clearwater, FL 33761-3930

E. A. "Seth" Mills, Jr., Esquire
Robert L. Olsen, Esquire
Fowler, White, Gillen, Boggs, Villareal and Banker, P.A.
P.O. Box 1438
Tampa, FL 33601-1438

Appearing on behalf of Petitioners were:
Roger W. Sims, Esquire
Rory C. Ryan, Esquire
Jeffrey T. Donner, Esquire
Holland & Knight LLP
200 S. Orange Avenue, Suite 2600
P.O. Box 1526
Orlando, FL 32802

Frederick T. Reeves, Esquire
Hobby Grey & Reeves
5709 Tidalwave Drive
New Port Richey, FL 34652-3281

Patrick B. Courtney, Esquire
Lansky & Courtney
512 E. Kennedy Blvd.
Tampa, FL 33602

Edward B. Helvenston, Esquire
Rick Muratti, Esquire
Assistant County Attorneys
Office of the Hillsborough County Attorney
P.O. Box 1110
Tampa, FL 33601

Kristin K. Bennett, Esquire
Hillsborough County Environmental Protection Commission
1900 Ninth Avenue East
Tampa, FL 33605

35. TBW presented the following witnesses:
(a) Jerry Maxwell. Mr. Maxwell was a fact witness.
(b) Ed Copeland. Mr. Copeland was qualified as an expert witness in civil engineering, the management and direction of projects like the Proposed Reservoir, and environmental resource permit application projects in general.
(c) Dr. Anwar Wisa. Dr. Wisa was qualified as an expert in the area of geotechnical engineering, specifically with an emphasis in embankment stability of earthen dams.
(d) Richard Donovan. Mr. Donovan was qualified as an expert in the areas of civil and geotechnical engineering as they relate specifically to dam embankment design and stability analyses.
(e) Dr. Sam Upchurch. Dr. Upchurch was qualified as an expert in the areas of Florida geology, karst, hydrogeology, and water quality analysis.
(f) George Eliason. Mr. Eliason was qualified as an expert in environmental sciences, delineation of wetland impacts, characterization of wetland systems, and analysis of wetland functions and value, including hydroperiods.
(g) Helen Bennett. Ms. Bennett was a fact witness.
(h) George Feher. Mr. Feher was qualified as an expert in wetland planning, including specifically the preparation of preliminary plans and follow-up detail plans and construction plans, and related permitting processes.
(i) Dr. Mark Stewart. Dr. Stewart was qualified as expert in geology, including geologic and hydrogeologic site evaluation, and specifically with regard to sinkholes and karst features, and also as an expert in water resources management, including integrated mathematical modeling of surface water and groundwater systems.

(j) Mr. Barry Meyer. Mr. Meyer was qualified as an expert in civil engineering, including the design of water-control systems and methods of control of groundwater and surface water.

36. Petitioners presented the following witnesses:
(a) Mark Farrell. Mr. Farrell was a fact witness.
(b) Paula Harvey. Ms. Harvey was a fact witness.
(c) Larry Gispert. Mr. Gispert was qualified as an expert in emergency management and, specifically, as an expert in emergency management in Hillsborough County.
(d) Jeremy Craft. Mr. Craft was qualified as an expert witness in ERP rule interpretation, FDEP agency practice regarding the application of the ERP rules to the reasonable assurance criteria, public interest criteria and the requirements for meeting those criteria, and wetland impact assessment and mitigation.
(e) Peter Anderson. Mr. Anderson was qualified as an expert in groundwater hydrology and modeling of groundwater systems.
(f) Thomas Simonetti. Mr. Simonetti was qualified as an expert in water quality analysis, particularly in the use of chemicals or water treatment additives and their potential environmental impacts.
(g) Dr. Norman Blake. Dr. Blake was qualified as an expert in pollution ecology and the effect of copper on marine and freshwater systems.
(h) Ross McWilliams. Mr. McWilliams was qualified as an expert in biology; wetlands assessments; wetlands mitigation and restoration, including design; threatened and endangered species assessment; and state wetlands permitting.
(i) Dr. Michael Dennis. Dr. Dennis was qualified as expert in biology, ecology, threatened and endangered species, and wetland permitting, including mitigation.
(j) Dr. Vincent Scovazzo. Dr. Scovazzo was qualified as a geotechnical expert in the area of dam design, safety, construction, operation, permitting, and stability.
(k) Daniel Mendelsohn. Mr. Mendelsohn was qualified as expert in the application and development of unsteady flow models, including the DAMBRK and FLDWAV models, and the representation of numerical model output in graphical form, including computer-generated inundation animations.
(l) Dr. Daniel Fread. Dr. Fread was qualified as an expert in the development and application of unsteady flow models, the development and application of the DAMBRK and FLDWAV models, the development and application of the DWOPER model, and the development and application of the BREACH model.

37. Some of the expert witnesses for TBW and Petitioners were also fact witnesses. There was no rebuttal testimony offered. The arbitration hearing terminated on April 9, 2001, after closing arguments by the parties. The parties submitted their proposed arbitration awards on April20, 2001, and the arbitration hearing was deemed closed as of that date pursuant to Guideline 34 of the American Arbitration Association Environmental Arbitration Guidelines.

38. The 1998 Interlocal Agreement requires that the arbitration award in this matter be issued no later than 60 days after the beginning of the arbitration final hearing. Sixty days after the beginning of the final arbitration hearing is May 15, 2001.

Background of the Proposed Reservoir

39. TBW selected the Proposed Reservoir site after an extensive, multi-disciplinary alternative site analysis that included the review and comparison from an environmental, land use, engineering and economic basis of other potential sites in the Hillsborough County and adjacent areas. Since the Proposed Reservoir purpose was to collect surface waters from the Hillsborough River/Tampa Bypass Canal and the Alafia River, potential sites needed to be reasonably close to these sources in order to reduce pipeline costs and reduce land use conflicts.

40. The Proposed Reservoir is located in southeastern Hillsborough County, roughly to the west, northwest of Wendel Avenue and between two riverine systems, Doe Branch to the east and northeast and Long Flat Creek to the west. Undeveloped land owned by Hillsborough County is south of and adjacent to the Proposed Reservoir site.

41. The area selected for the Proposed Reservoir and the immediately surrounding area is mostly rural in character and sparsely populated except for approximately 51 residences along Wendel Avenue near to the Proposed Reservoir. The land for the Proposed Reservoir is zoned agricultural-rural. This zoning classification allows for the land to be used for a water reservoir so there is no rezoning required. There is no zoning designation within Hillsborough County that has a lower density classification than agricultural-rural.

42. The Proposed Reservoir footprint is designed to be approximately 1,100 acres in size and is expected to hold approximately 15 billion gallons of water, at an average water depth of about 50 feet, when full. Five miles of earthen embankments are designed to impound the water in the Proposed Reservoir.

43. The earthen embankment is designed to range between 30 to 65 feet in height based on the existing land surface elevations on the site, with the higher embankments being in the northwest corner of the Proposed Reservoir and the lower embankments being on the southeast corner, near Wendel Avenue. The Proposed Reservoir is designed to be generally above ground with some portion of the reservoir storage being provided below the existing land surface as a result of the excavation of materials needed for the embankment. The top elevation of the Proposed Reservoir is designed at 145 (ft) NGVD.

44. A crest road is planned for the top of the earthen embankment. The design also calls for a perimeter road at the downstream toe of the embankment adjacent to the perimeter swale, which is, in turn, adjacent to the earthen embankment.

45. The Proposed Reservoir is designed to be an off-stream reservoir to store surface waters, and it needs facilities to transport water to and from the area enclosed by the earthen embankment. Accordingly, the Joint Application also includes construction of approximately 8 miles of new 84" pipeline to connect to water sources and to existing water supply facilities. The pipeline route begins approximately 400 feet north of the intersection of Fishhawk Drive, Bell Shoals Road and Boyette Road, and runs south and east in a proposed easement following the alignment of Boyette Road, then through rural land to the Proposed Reservoir. The pipeline is planned to be used for obtaining water for the Proposed Reservoir from the Hillsborough River, the Alafia River and the Tampa Bypass Canal. The pipeline will also be used to deliver water to the Tampa Bay Regional Surface Water Treatment Plant, located in Hillsborough County north of the Proposed Reservoir, for treatment and ultimate delivery to member governments.

46. The 84" pipeline is designed to be made from steel or prestressed concrete pipe for the majority of its length. The portion of the pipeline under the earthen embankment will be steel. The 84" pipeline is designed to enter the Proposed Reservoir in the northwest area of the Proposed Reservoir, will be buried below the ground surface and the earthen embankment, and is designed to connect to an intake tower inside the Proposed Reservoir. A water control structure bridge of approximately 263 feet in length is designed to be built from the crest road on top of the earthen embankment to the intake tower. Also buried below ground level at the same location as the 84" pipeline will be a 42" pipeline. At the present time, the use of this 42" pipeline has not been determined.

47. There are ten stormwater ponds associated with the Proposed Reservoir that are planned to be located adjacent to and outside of the earthen embankments. Two access roads, one from the east and one from the west side of the Proposed Reservoir, are planned as part of the project.

48. A one-story maintenance and office building, approximately 28 feet by 48 feet, is scheduled to be built near the intake tower. A separate mechanical building adjacent to this building may be constructed if necessary to improve water quality in the future.

49. In addition to the 1,100-acre footprint of the Proposed Reservoir, the SWFWMD has agreed to acquire 4,700 acres surrounding the footprint to the east, west and north. This additional acreage is planned to be used for mitigation for wetland impacts and for other unspecified purposes. The SWFWMD plans to acquire the necessary property for the Proposed Reservoir and mitigation areas. TBW will be responsible for the construction, operation and maintenance of the Proposed Reservoir. TBW plans to construct the wetlands and other areas that may be necessary for mitigation purposes and to be responsible for these areas until their vegetative success has been established. SWFWMD or another similar agency will then be responsible for the long-term management and maintenance of the mitigation areas. Issues to be Determined by the Arbitration Panel

50. As will be discussed more fully in the conclusions of law section of this arbitration award, TBW has the burden of proof in this arbitration proceeding" of providing reasonable assurances that [TBW’s] Primary Environmental Permit application meets all applicable agency rules, policy and statutes." 1998 Interlocal Agreement, Section 3.13(B). (The "applicable agency rules, policy and statutes" are referred to in this arbitration award as the "Applicable Substantive Law.") This is the ultimate issue of law in this arbitration proceeding.

51. While there are many issues of fact that could be determined pursuant to a determination of "reasonable assurance" for a project like the Proposed Reservoir, the parties have narrowed the issues to be determined by this arbitration through the pleading and discovery process that preceded the final evidentiary hearing. Petitioners’ Initial Statement of Issues dated December12, 2000; Joint Pre-Hearing Stipulation; Proposed Final and Binding Arbitration Decision filed April 20, 2001 ("Petitioners’ Proposed Arbitration Award"); Tampa Bay Water’s Proposed Final Arbitration Award filed April 20, 2001 ("TBW’s Proposed Arbitration Award"); and all discovery pleadings. The 1998 Interlocal Agreement envisions the narrowing of issues in this manner. 1998 Interlocal Agreement, Appendix N, Rules 1(a)(6) and (7); Rules 1(b)(1), (3), and (5). Indeed, the arbitration process under the 1998 Interlocal Agreement requires that member governments raise "issues" to initiate the arbitration process. 1998 Interlocal Agreement, Section 3.13(A).

52. Accordingly, the following generally stated issues, as set forth by Petitioners in the Joint Pre-Hearing Stipulation, remain for factual and legal consideration by the Arbitration Panel:
(1) Whether the Application provides reasonable assurance as to the potential for adverse water quality impacts to the ground water and surface water in the vicinity of the reservoir and unacceptable impacts to natural systems and domestic uses.

(2) Whether the Application provides reasonable assurance as to the potential for impacts to wetlands outside of the "footprint" of the reservoir due to leakance from the reservoir and alteration to the natural hydroperiods.

(3) Whether the plan for mitigation of impacts to wetlands is indefinite and incomplete, does not consider potential adverse impacts to mitigation projects from reservoir leakance, and fails to provide the necessary reasonable assurance the wetlands impacts can be adequately offset.

(4) Whether the Application provides reasonable assurance that the public health and safety has been adequately protected when the Application does not:

a. include a dam break analysis, including inundation map, and the emergency action plan is not complete;

b. address design alternatives to avoid or minimize risks to public health and safety;

c. is based upon "average" site conditions rather than actual conditions;

d. include design or analysis for emergency or rapid drawdown conditions; and

e. address impacts to adjacent residences, including potential impacts to septic fields, domestic wells, and surface drainage.

Joint Pre-Hearing Stipulation, p. 17.

53. This arbitration award deals with these contested factual issues and makes appropriate factual determinations to be able to apply the Applicable Substantive Law to these factual issues. All other facts in connection with the Proposed Reservoir that are not necessary in the determination of the remaining factual and legal issues are not subject to arbitration, and a "reasonable assurance" evaluation has not been made as to whether those facts comply with the Applicable Substantive Law.

Issue 1
Water Quality Compliance

Issue 1: Whether the Application provides reasonable assurance as to the potential for adverse water quality impacts to the ground water and surface water in the vicinity of the reservoir and unacceptable impacts to natural systems and domestic uses.

54. There is general agreement between the parties that the hydraulic head created by the water to be stored within the Proposed Reservoir will cause a hydrologic mechanism known as "seepage"– i.e., some of the water, identified as "leakance," will migrate through the embankment and underlying soils, a process called "flux," into the aquifers underlying and surrounding the Proposed Reservoir, as well as the surrounding surface waters. Disagreement arises over whether the leakance would cause adverse impacts that violate Applicable Law, either as to water quality or water quantity. Petitioners’ first issue concerns water quality impacts. Their second and third issues address water quantity impacts.

55. The specific concerns raised here by Petitioners relate to the likelihood that TBW will use algaecides or other chemicals to protect TBW’s use of the water being stored within the Proposed Reservoir. TBW acknowledges the need to use water quality control measures within the Proposed Reservoir, but states that such measures are still being developed and will be calibrated with actual reservoir water quality upon filling the Proposed Reservoir. Therefore, the Joint Application contains no final determination as to the type or quantity of chemicals that may be used.

56. The chemical of particular concern to Petitioners is copper sulfate, which the Joint Application acknowledges may be used in the Proposed Reservoir. Copper sulfate is a common chemical compound that is applied in lakes, streams and reservoirs throughout the United States for the purposes of killing algae in the water column.

57. Because it is still considering how to undertake these water quality measures, TBW presented no evidence as to application rates, method of application, spill control, type of equipment to be used for applications, or any other information regarding the use of copper sulfate. The parties appear to agree, however, that effective usage will require many tons of the chemical.

58. The Arbitration Panel concurs with expert witnesses from both parties to the extent that they agree that the copper in copper sulfate becomes bound in sediments at the bottom of water bodies, particularly where the sediments and soils contain organics, clays and silts. Such a process would be applicable to the bottom of the Proposed Reservoir.

59. Where the experts disagree is over the fate of the copper after it becomes bound. Petitioners assert that where extremely large amounts of copper are used, some of it will go back into solution at or near the bottom of the reservoir, where it will be available for transport.

60. The FDEP has adopted surface water quality standards for copper, which can be found in Rule 62-302.530, F.A.C. Copper is a groundwater standard pursuant to Rule 62-520.420, F.A.C., which incorporates by reference Rule 62-550.320, Table 4, Secondary Drinking Water Standards.

61. Copper in its soluble form is toxic to low-level plant and animal life. If copper in soluble form were to reach wetlands outside the Proposed Reservoir at certain low levels of concentration, it can be toxic to the ecology and disrupt the entire food chain.

62. The Wendel Avenue residents obtain their drinking water from private wells. The potential for leakants containing copper of moving from the Proposed Reservoir to groundwater underlying those wells, therefore, should be monitored to confirm that the leakants will not result in the residents having copper in their drinking water that exceed the secondary standard level.

63. TBW has not conducted any analysis of fate and transport of chemicals or contaminants out of the Proposed Reservoir. Petitioners, however, presented no testimony that copper could reasonably be expected to migrate from the Proposed Reservoir or otherwise impact the surface waters or groundwater.

64. While Petitioners presented evidence that copper may return to soluble form under certain circumstances, Petitioners presented no evidence that, even assuming the soluble copper could travel through the reservoir bottom, such transport would reasonably be expected to cause a violation of water quality standards for copper in surface water or groundwater outside of the Proposed Reservoir, or even that the soluble copper would exceed such standards within the Proposed Reservoir prior to such transport.

65. Witnesses for both parties discussed a monograph entitled "Aquatic Use of Copper-Based Herbicides in Florida," (Fla. Dept. of Natural Resources 1990). (Pet. Ex. 104) The monograph expresses concerns that excessive use of copper sulfate could have adverse downstream water quality impacts for copper, but did not address closed reservoir situations such as the Proposed Reservoir, did not discuss possible groundwater transport, and did not recommend elimination of copper sulfate as an algaecide in drinking water reservoirs.

66. Petitioners have not placed at issue in this proceeding the need for TBW to comply with water quality standards for copper within the Proposed Reservoir pool. While Petitioners provided no persuasive proof that leakance from the Proposed Reservoir would cause water quality violations outside the reservoir embankment, the testimony indicates that water quality problems may occur at some point if the usage of copper sulfate is completely unregulated. This is illustrated by testimony of witnesses from both sides expressing concern over potential adverse impacts associated with usage of unspecified numbers of "dump trucks" of the algaecide.

67. TBW responds to concerns regarding uncontrolled use of algaecides by pointing to AppendixK, Section 2.4 of the Joint Application, which states, "The water quality control measure utilized in the reservoir management will be permitted through the Hillsborough County Health Department Source Water Permit." However, there is no evidence as to the scope of such permit – i.e., what specific "measure" would be permitted, what does the permit regulate, does it address potential offsite water quality concerns, or whatever. Therefore, the Arbitration Panel is unable to determine the relevance of this permitting scheme to whether the Joint Application complies with Applicable Substantive Law.

68. The evidence shows that copper sulfate is reasonably likely to be bound up in soils within the footprint of the Proposed Reservoir, and no persuasive evidence has been presented to the Arbitration Panel that soluble copper may be transported by leakance from the Proposed Reservoir to adjacent groundwater or surface water in levels that violate applicable state water quality standards.

69. Nonetheless, given the lack of information with regard to how the application of copper sulfate will be regulated, the Panel finds that it would be prudent for TBW to monitor the groundwater adjacent to the embankment of the Proposed Reservoir to determine whether the applications are causing an increase in copper at levels that would appear to indicate that water quality standards might be violated in the future.

70. Particular areas of concern for monitoring are wetlands adjacent to the Proposed Reservoir and the Wendel Avenue neighborhood. The wetland areas are appropriate because of the potential impacts of water quality violations on the wetland systems. The Wendel Avenue neighborhood monitoring is appropriate because of the residents’ use of groundwater for drinking water.

71. TBW has already acknowledged in the Joint Application its commitment to monitor for water quality and water levels at various locations around the site of the Proposed Reservoir, including specifically the Wendel Avenue area. Monitoring wells will be installed as part of TBW’s monitoring and maintenance plan for leakance, and will be designed to look at both water quality and water levels. The Arbitration Panel finds that the water quality monitoring plan should specifically include monitoring for copper. Since TBW has already committed to implement monitoring in these location, the Arbitration Panel does not consider it necessary that the copper monitoring be included as a specific amendment to the Joint Application.

72. Petitioners have not placed at issue the adequacy of TBW’s water quality monitoring plans for chemicals other than copper, or for monitoring other potential pollution-causing constituents in the waters of the Proposed Reservoir, whether added by TBW or coming from elsewhere, such as from the source waters for the Proposed Reservoir. Therefore, the Arbitration Panel’s findings on copper is not intended as a determination of what should be the scope of the water quality monitoring plan proposed by TBW in its Joint Application, only what must be included in the plan as a result of this arbitration award.

73. On page 43 of Petitioners’ Proposed Arbitration Award, under the headings of "Wendel Avenue" and "Water Quality," Petitioners state their proposals for what should be ordered by the Arbitration Panel as the part of this arbitration award relating to the water quality issues. These proposals include a detailed assessment of the potential impacts of seepage on the Wendel Avenue residents, avoidance and contingency plans for such impacts, preparation of models that predict the fate and transport of herbicides and algaecides that may be used within the Proposed Reservoir, and the implementation of measures to prevent adverse impacts to water quality or fish and wildlife.

74. Given the lack of evidence that water quality exceedences are reasonably expected to occur from copper-containing leakance outside of the Proposed Reservoir, the Arbitration Panel rejects these recommendations as being unnecessary amendments to the Joint Application.

Issues 2 and 3
Water Quantity Monitoring and Management

Issue 2: Whether the Application provides reasonable assurance as to the potential for impacts to wetlands outside of the "footprint" of the reservoir due to leakance from the reservoir and alteration to the natural hydroperiods.

Issue 3: Whether the plan for mitigation of impacts to wetlands is indefinite and incomplete, does not consider potential adverse impacts to mitigation projects from reservoir leakance, and fails to provide the necessary reasonable assurance the wetlands impacts can be adequately offset.

75. Petitioners have asserted that adverse impacts may occur to offsite wetlands and the property of others as the result of changes in water quantity caused by construction and operation of the Proposed Reservoir. Petitioners question whether TBW’s modeling of the potential extent of such impacts, as well as TBW’s proposals to monitor for and manage any impacts that may be adverse, comply with Applicable Substantive Law. Since the two issues quoted above both relate specifically to Petitioners’ concerns over impacts resulting from changes in water quantity, the Arbitration Panel will consider the issues together.

76. In Petitioners’ Proposed Arbitration Award, Petitioners restated their concerns in a somewhat different manner, as follows:
Issue 2: Whether the Application provides reasonable assurance that adverse water quantity impacts to wetlands outside of the "footprint" of the reservoir will not occur due to the anticipated alteration of the natural hydroperiods resulting from continuous seepage out of the reservoir;

Issue 3: Whether the proposal as detailed in the Application for monitoring and management of impacts to wetlands due to seepage provides reasonable assurance that adverse impacts to existing wetlands, streams and proposed mitigation projects can be adequately detected and avoided or offset before adverse impacts occur and is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed;

77. The difference between the two statements of the issues appears in their differing treatment of the issue of mitigation. In their pre-hearing stipulation statement of the issues, Petitioners raise objections about the adequacy of TBW’s mitigation plans in general. In the later version, Petitioners focus on their concerns as they specifically relate to seepage–i.e., on the adequacy of the mitigation plans because of the effects that seepage may have on the implementation of such plans. Because the argument of Petitioners has been made more specific, and because issue narrowing has been a recognized part of this arbitration proceeding, the Arbitration Panel will treat Petitioners’ mitigation concerns as being specifically related to the leakance issue–i.e., whether the leakance impacts are adequately addressed in mitigation plans for areas that would reasonably be expected to be impacted by the leakance.

78. The parties are in general agreement on a number of matters relating to these issues. As previously stated in the Arbitration Panel’s discussion of Issue 1, the parties agree that the hydraulic head created by the water to be stored within the Proposed Reservoir will cause leakance into the aquifers underlying and surrounding the Proposed Reservoir, as well as the surrounding surface waters.

79. The parties agree that construction of the Proposed Reservoir will affect the amount of surface water that would otherwise flow from the footprint to adjacent wetlands, because 1,100 acres will be removed from the project area’s drainage systems. The elimination of both wetlands drainage and stormwater runoff from the area within the Proposed Reservoir will result in at least some decrease in the amount of surface water reaching property adjacent to the Proposed Reservoir.

80. The parties agree that there will be an elevation of water tables as the result of construction and operation of the Proposed Reservoir, at least in some locations outside of the reservoir embankment, the extent of which is affected by a number of factors, including accuracy of modeling, reservoir operations, actual field conditions and the effectiveness of implementation of management strategies directed towards lowering the water table.

81. The parties agree that construction and operation of the Proposed Reservoir, therefore, will affect the hydrologic regime in the area of the Proposed Reservoir, both as to timing of the existing hydroperiod and as to the quantity of water being delivered, stored and removed from the affected area. Because these hydrologic changes have the potential to cause adverse impacts upon adjacent wetlands and the property of others, the parties further agree that it is appropriate to consider under Applicable Substantive Law whether TBW has provided reasonable assurance in the Joint Application that measures it has proposed to address these potential adverse impacts comply with Applicable Substantive Law, both as to evaluating the extent of potential impacts and as to establishing effective measures to avoid or mitigate for any impacts that may be adverse–i.e., that may cause a violation of Applicable Substantive Law.

82. Where the parties disagree is over the degree of hydrologic change the Proposed Reservoir is expected to create, the adequacy of TBW’s evaluation of potential impacts associated with the change, and the sufficiency of TBW’s proposals for preventing or compensating for any impacts that may be adverse. While TBW has proposed a management program, discussed below, that is designed to address potential adverse impacts associated with the hydrologic changes, the Arbitration Panel finds it necessary first to understand the potential scope of the changes before considering the adequacy of the management plan.

Calculating the Water Quantity Changes

83. The disagreement between the parties begins with a difference in how to calculate the total increase in water quantity that is reasonably expected to occur as the result of seepage from the water. That disagreement, in turn, starts off with the parties’ usage of two different mathematical models to calculate the seepage.

84. Dr. Stewart testified on behalf of TBW. Dr. Stewart had originally intended to use a model called MODFLOW, a numerical three-dimensional model used by the United States Geological Service to evaluate groundwater hydrology. Because of the complexities of the embankment design, including the geomembrane and soil cement liners, water table levels within the embankment, the drainage system and the cutoff slurry wall, Dr. Stewart concluded that the MODFLOW model, while a "good model," was too restrictive to address these complexities.

85. Dr. Stewart decided instead to use a SEEP/W model. The model is two dimensional and used for two-dimensional problems such as determining flow from dams and embankments. Its principal use here was to determine the amount of flow of water from the Proposed Reservoir to the underlying and adjacent aquifers ("fluxes"). The model is not designed to predict changes in elevations in the water table that might be caused by such fluxes. Dr. Stewart felt that the MODFLOW model would not be useful in predicting such movement here because the field data was not sufficient to enable the model to factor in the effects of variables such as evapotranspiration (taking water out) and recharge (putting other water in).

86. Dr. Stewart used several conservative input parameters in running the SEEP/W model, assuming (1) a full reservoir pool at all times, (2) no sedimentary buildup in the reservoir bottom, (3) imperfect slurry wall construction, and (4) no capture of leakance by the creek systems outside of the Proposed Reservoir. These inputs are conservative because TBW estimates that the Proposed Reservoir will only be full approximately 15 percent of the time, that sedimentary buildup will occur over time, that the slurry wall should operate as designed, and that the creek systems, as well as the drainage system (toe drains, swales and stormwater ponds) around the reservoir embankment, will capture some of the leakance.

87. Based upon the SEEP/W model calculations, which came up with a range of numbers, Dr. Stewart estimated that there would most likely be approximately four million gallons per day (mgd) of leakance given the above-noted input parameters. Approximately 2.5 mgd would go out under the Proposed Reservoir embankment, with the remainder going straight down to the Floridan Aquifer. Of the 2.5 mgd that would go out, approximately one mgd would move up and discharge at the water table, with the remainder moving away from the embankment, eventually going down and recharging the Floridan Aquifer.

88. Under the SEEP/W model, it would be hard to predict the actual impact of one mgd in elevating the water table given the model limitations, the existence of the adjacent creek systems, the effects of evapotranspiration and recharge, varying geology (including hydraulic conductivity) around the site, and the fact that the Proposed Reservoir’s pool levels will vary. This also makes it difficult to predict the lateral reach of the water table rise. Dr. Stewart estimated that the flux from the Proposed Reservoir could reasonably be expected to cause a foot or more of rise for approximately 400-600 feet away from the embankment. For the first 100-200 feet, the flux would be sufficient to cause a rise to the surface at some period of the year. Dr. Stewart did not take into consideration potential impacts of lateral flow induced by changes in elevation. Furthermore, Dr. Stewart could not be sure of the full lateral reach of the water table rise, particularly beyond 600 feet, given that the SEEP/W model does not calculate the effect that movement of the flux would have in changing water table elevation, which remains constant–i.e., a "boundary condition"–under the model.

89. Petitioners’ witness, Dr. Anderson, calculated seepage and "push up" (the upward movement of water outside of the reservoir footprint caused by the seepage) using the MODFLOW model, and also evaluated Dr. Stewart’s use of the SEEP/W model. Dr. Anderson was critical of the SEEP/W model for not adequately analyzing off-site impacts of seepage, and especially for considering water table levels as remaining constant. He asserted that the effect of the model’s application was to disregard the impacts of push up, particularly beyond the 600 or so foot area immediately outside the embankment.

90. Dr. Anderson used the MODFLOW model to calculate the total amount of seepage, using the same set of "conservative input parameters" as did Dr. Stewart. In so doing, Dr. Anderson also applied Darcy’s Law, which is a formula used to calculate how water levels will change based upon hydraulic conductivity or permeability and changes along the flow path, the basic assumption being that an increase in flow will cause a water table rise. Dr. Anderson’s modeling efforts were specifically directed towards looking at water table rise.

91. Dr. Anderson’s modeling efforts showed possible ranges in the total amount of seepage from the Proposed Reservoir of between two and eight mgd, and he concluded that four mgd would be the most likely number. With regard to the lateral extent of push up from the Proposed Reservoir, Dr. Anderson concluded that the one foot push up line–i.e., the point at which the water table would rise by no more than one foot as the result of leakance from a full pool reservoir–would be between 4,000 to 5,000 feet from the reservoir embankment.

92. While the two experts challenged the conclusions generated from the models each other preferred, they both did agree that there would be approximately four mgd of leakance from the Proposed Reservoir, and that approximately 2.5 mgd of that leakance would move laterally away from the embankment. The difference was in how much of the
2.5 mgd would go up or down. Dr. Anderson concluded that there would be approximately two mgd moving upward outside the footprint of the Proposed Reservoir, whereas Dr. Stewart estimated the amount to be closer to one mgd.

93. The two experts also both recognized the limitations of their own models. As Dr. Anderson acknowledged, all models are a "simplification of the natural system." In the words of Dr. Stewart, "Mathematical models by definition are simplifications." The experts both recognized that the models do not look at the impacts of evapotranspiration or topography, and that the only real way to determine the extent of leakance and push up is to build the Proposed Reservoir and fill it with water. The Arbitration Panel finds the opinions of both Dr. Stewart and Dr. Anderson to be credible, and accepts their conclusions that estimate leakance of around 4 mgd, which the Arbitration Panel finds to be a reasonable number to expect when the Proposed Reservoir is at full pool; and estimate about 2.5 mgd of that leakance to move laterally away from the footprint of the Proposed Reservoir, which the Arbitration Panel also finds to be a reasonable number.

94. The Arbitration Panel recognizes that in large part the conclusions differ as to how much of the 2.5 mgd will result in an alteration of the water table adjacent to the Proposed Reservoir, because the two models are looking at two different impacts–the SEEP/W model primarily at flux, and the MODFLOW model primarily at push up. As a result, the Arbitration Panel anticipates that the SEEP/W model is likely to underestimate push up, and the MODFLOW model to overestimate it. Particularly given the experts’ own acknowledgment of the limitations in the models that they prefer to use, the Arbitration Panel finds, therefore, that it is reasonable to anticipate that leakance at full pool will cause between one and two mgd of leakance reasonably likely to move upwards and thereby cause push up outside of the embankment of the Proposed Reservoir.

95. With regard to the horizontal and vertical extent of water table rise caused by the leakance, the experts disagree most significantly on the extent of impact beyond 600 feet. Since Dr. Stewart conceded that the SEEP/W model was not intended to calculate water table rise, and since the Arbitration Panel has determined that the total amount of push up may be up to twice the amount calculated by Dr. Stewart, the Arbitration Panel finds it reasonable to take into consideration, for the purposes of developing monitoring and management plans, potential water table rise up to 4,000 feet away from the reservoir footprint, with the amount of push up increasing closer to the embankment.

96. The Arbitration Panel does not intend consideration of the 4,000-foot distance to constitute a finding that adverse impacts are reasonably expected to occur up to 4,000 feet away, or even that there will be push up of one foot up to 1,000 feet away. Rather, this distance should be the outer limit of the areas being studied by TBW as part of its monitoring plan, and addressed if necessary if the monitoring shows that adverse impacts would reasonably be expected to occur without management plan implementation.

97. Furthermore, the Arbitration Panel recognizes these distances and depths to be estimations, given the limitations of the mathematical models. Notwithstanding the Arbitration Panel’s acceptance of Dr. Anderson’s horizontal and vertical calculations of leakance impacts for the purposes of consideration in a management plan, the Arbitration Panel would expect the true numbers to be substantially less, once the Proposed Reservoir is constructed and TBW’s monitoring and management plans implemented.

98. Factors influencing what those true numbers would be include variations in pool levels, topography, weather conditions affecting evapotranspiration and water table depths, hydraulic conductivity at various locations around the embankment, slurry wall construction, sedimentary buildup in the reservoir bottom, and other circumstances both contemplated and unexpected. Given that these variables are at this point unpredictable, however, and also are likely to have substantially different effects at different locations throughout the property surrounding the footprint of the Proposed Reservoir, the Arbitration Panel finds it prudent that the more conservative assumptions of Dr. Anderson be used at least for the purposes of determining how large an area should be considered as part of the monitoring and management plans discussed below.

99. As previously noted, calculating the true impact of the Proposed Reservoir on adjacent property outside of its footprint is further complicated by the fact that its construction will eliminate a significant amount of surface water currently flowing onto the adjacent property from the 1,100-acre area within the reservoir embankment. These impacts take water out of the system rather than add to it.

100. The Petitioners have not disputed TBW’s calculations of how much reduction will occur in surface water flows as a result of elimination of drainage from the 1,100-acre reservoir site. According to Mr. Meyer, there would be a net reduction of 230 cubic feet per second in stormwater runoff into adjacent streams as a result of the capture of that stormwater within the embankment of the Proposed Reservoir. According to calculations in the Joint Application, the net difference to the ground/surface water system would be between 0.5 and one mgd. While the surface water numbers are not disputed, the net difference is disputed, since the difference would be greater assuming the accuracy of Dr. Anderson’s calculations. The environmental effects of the net difference would also be impacted by the fact that because so much of the surface water flow comes from stormwater, and the amount of seepage will vary depending upon the pool levels within the Proposed Reservoir, the net difference will vary over time.

101. In the final analysis, the true impacts of groundwater and surface water changes can only be fully calculated and understood once the Proposed Reservoir is constructed and placed into operation. Whatever the impacts ultimately prove to be, the Arbitration Panel finds that there will be leakance from water stored within the footprint of the Proposed Reservoir, the groundwater flow of the leakance will cause push up in areas surrounding the footprint, and elimination of surface water runoff from within the footprint will result in some reduction in the total amount of water thereby exiting the Proposed Reservoir and impacting adjacent wetlands and the property of others. Given the large volume of water to be stored in the Proposed Reservoir, the amount of water being added is of sufficient quantity, and the existing hydroperiod is being sufficiently changed, that without adequate monitoring and management, adverse impacts are reasonably likely to occur to receiving waters and adjacent lands. These potential impacts are substantial enough so as to require that the Joint Application be evaluated to determine whether TBW’s plans to monitor for and manage these impacts are detailed enough to comply with Applicable Substantive Law.

102. Furthermore, these impacts need to be evaluated without assuming they will be offset by a successful management plan. As explained more fully below, in order to review the scope and effectiveness of such a management plan, it is first necessary to establish baseline data.

Assessing Potential Impacts from the Water Quantity Changes

103. In order to evaluate fully the potential impacts of the Proposed Reservoir resulting from changes in water quantity upon adjacent wetlands and the property of others, without assuming that such impacts will be offset by a management plan, the first step is to evaluate existing conditions.

104. The parties have identified two wetland systems that may be adversely impacted by water quantity changes. Immediately adjacent to the western, eastern and northern boundaries of the Proposed Reservoir are two riverine, hardwood wetland systems that extend to within one to two hundred feet of the toe of the embankment: Long Flat Creek and Doe Branch. Other adjacent natural areas include improved pasture and upland scrubby flatwoods.

105. Doe Branch supports a mixed canopy of laurel oak, sweet bay, cabbage palm, and an understory of flowering dogwood and dahoon holly, with sparse amounts of catbriar and leaf litter as groundcover. Long Flat Creek generally supports a canopy dominated by red maple, laurel oak, sweet gum, sweet bay, and cabbage palm. Wetter areas also support cypress, black gum and Carolina ash. Groundcover consists of numerous weedy species in addition to Virginia chain fern, cinnamon fern, netted chain fern, and in wetter areas lizard tail. All of these species are typical of riverine swamp and are adapted to temporary to seasonal inundation.

106. Petitioners have also identified as an area of potential concern the East Pruitt mitigation site. The East Pruitt property is among the 4,700 acres identified by Petitioners for acquisition by SWFWMD as part of the mitigation plan for offsetting the impacts of elimination of wetlands within the footprint of the Proposed Reservoir and other wetlands being eliminated as part of reservoir construction activities. The East Pruitt area is located immediately adjacent to the northwestern edge of the Proposed Reservoir boundary, and includes within it portions of Doe Branch. TBW has acknowledged that seepage from the Proposed Reservoir may impact areas being considered for development as mitigation sites within the East Pruitt area.

107. Petitioners’ other area of concern is the Wendel Avenue neighborhood. Petitioners are concerned that seepage may adversely affect wells and septic tanks because of the impacts of changes caused by the seepage in both water quality (as discussed in Issue 1) and water quantity (from water table rise).

108. In the Joint Application at Appendix D, Section 5.3, TBW recognizes that potential adverse effects could occur to the two adjacent wetland systems as a result of seepage from the Proposed Reservoir. TBW acknowledges, "The exact response of the aquifer as well as the adjacent environment must be monitored so that appropriate management strategies can be implemented prior to the manifestation of any adverse effects. The monitoring protocol and management strategies will provide reasonable assurances that adverse environmental effects do not occur as a result of the project."

109. Appendix D refers to Appendix H for an "outline" of the proposed monitoring program. Appendix H, in turn, at Section 4.6, states that "a monitoring program will be implemented by [TBW] to assess subsurface groundwater conditions before, during and after filling of the reservoir." The monitoring program will consist of a "network of piezometers located along the perimeter of the reservoir and near the adjacent streams." The program would use both existing monitoring wells and wells not yet identified.

110. Mr. Eliason testified on behalf of TBW regarding its efforts to assess wetland impacts associated with construction and operation of the Proposed Reservoir. Mr. Eliason testified that TBW has not quantified potential impacts because the modeling numbers assumed an unlikely worst case scenario and because TBW is planning to use a management plan to avoid adverse impacts altogether.

111. TBW asserts that it is seeking not to avoid any impacts from the hydrologic changes caused by the Proposed Reservoir, but to avoid any adverse impacts. TBW intends to accomplish this through monitoring the existing wetland regime so that indicators of stress can be identified prior to irreparable damage occurring, and through manipulating groundwater levels by pumping to relieve the stress prior to such damage. In Mr. Eliason’s words, "The goal of the monitoring and management plan is not to mimic the natural fluctuations in that water table . . . [, but] to manage for adverse impacts."

112. The monitoring plan proposed by TBW to FDEP would involve the location of additional wells to those already identified in the Joint Application, the setting of vegetation transects at strategic locations along the creek beds to look for stress, and the use of color infrared aerial photography to evaluate the spread of moisture in the soils from leakance.

113. TBW’s proposal does not lay out specific details of a monitoring or management strategy. Rather, the plans are "conceptual" only, with details to be worked out with FDEP during the permit application process. Mr. Eliason testified that TBW had gathered the information necessary with regard to groundwater monitoring and infrared photography to put a more specific plan together, and that transects were in the process of being performed and should be completed shortly. The information has yet to be included within the Joint Application, however.

114. Therefore, there is no information in the Joint Application that would enable quantification of the extent of potential damage to the wetlands surrounding the Proposed Reservoir assuming an "unmanaged" scenario–i.e., no implementation of a management plan designed to prevent any adverse impacts. Nor is such a quantification available assuming a "mismanaged" scenario–i.e., unsuccessful implementation of the management plan.

115. Hydrologic changes can cause stress to occur in wetland species that may not be detectable until substantial adverse impacts have already occurred. While the management plan relies upon stress indicators to trigger corrective action, the monitoring plan does not clearly define when stress results in an unacceptable adverse impact. To the extent, therefore, that a monitoring plan relies upon stress indicators, those indicators must be clearly identified in order for the plan to be reviewable for compliance with Applicable Substantive Law.

116. Because the monitoring and management plans are only "conceptual" in nature at this point in the proceedings, and because TBW has not made any effort either to identify or to quantify potential adverse impacts in the event the management plan does not prove effective, the Joint Application does not currently meet the reasonable assurance test for compliance with Applicable Substantive Law.

117. The Panel finds that TBW has established a reasonable conceptual basis for monitoring and management plans, and therefore does not consider the Proposed Reservoir at this point in the proceedings to be unpermittable. But the Joint Application as presented to the Panel is incomplete. As Mr. Eliason acknowledged, the Joint Application is not at this point in time a "permittable document," even though the project itself may be permittable, because the monitoring and management plans have not been fully developed.

118. This acknowledgment is also contained in the text of the Joint Application. Appendix D, Sections 5.3.1&2, states that details of the monitoring plan have "not yet been fully developed," and that specific criteria for unacceptable changes that need to be addressed "will be developed during the permitting process through coordination with regulatory agencies."

119. The Joint Application in its current state is incomplete because it lacks sufficient detail for a determination of whether potential adverse impacts from leakance have been appropriately and accurately identified. In order to overcome this incompleteness, TBW must provide in the Joint Application a delineation of the wetland system and its supporting hydrologic regime with enough specificity so that the full extent of potential adverse impacts can be determined, for three reasons:
(a) To establish a baseline so that the potential for adverse impacts to occur can be fully measured;
(b) To assist in the development of a management plan, by identifying specifically the wetlands to be protected, the hydroperiod needed to maintain these wetlands with the same level of protection, and the types of strategies that can be utilized to accomplish the protection; and
(c) To provide a basis for the establishment of a backup mitigation plan in the event that the management plan proves unsuccessful in whole or part.

120. To help determine potential impacts and evaluate possible remedial measures, the delineation should take into consideration the wetland species, topography, soils and geology of the area. One way to accomplish this was illustrated by Dr. Dennis, who performed a series of surveys of transects into the wetland systems adjacent to the Proposed Reservoir. Dr. Dennis’ transects point out that the wetland system potentially impacted has seepage slopes that require careful attention in any management plan if adverse impacts are to be avoided.

121. The Joint Application is also insufficient because the East Pruitt mitigation plan has not yet been developed. Here the baseline would be established through development of a plan with sufficient detail to know where the mitigation area or areas will be located, how large they will be, and what they will consist of in the way of type, nature and function of the wetland systems to be created, enhanced or protected. Without such detail there is no way to determine how a management plan would be protective of these mitigation areas.

122. Mr. Eliason indicated that TBW has gathered enough historical information over the last 20 years, to make a determination of what groundwater levels should be included in the Joint Application as establishing how adverse impacts can be avoided. TBW has not yet included this type of information in its Joint Application, however, and those levels need to be included because they are an important component of the reasonable assurance criteria. Similarly, the Joint Application should include information regarding transects of wetlands vegetation that TBW has already undertaken.

123. A management plan alone cannot suffice for establishing baseline conditions. While monitoring for stress may be an appropriate component to a management plan that relies on groundwater manipulation to avoid adverse impacts, such monitoring is insufficient by itself. It is critically important to have a detailed description in the monitoring plan as to how stress indicators are determined and which ones are acceptable, since adverse impacts may have already occurred prior to corrective action being able to be undertaken.

124. TBW has already indicated both its commitment to and the necessity of undertaking a monitoring program, as indicated by Section 5.3.1. of Appendix D to the Joint Application. TBW recognizes that elements of the monitoring program must include "[t]ransects [to] be established in the hardwood floodplains of both Long Flat Creek and Doe Branch for the collection of data related to tree health, reproductive state, and growth. Herbaceous and shrub cover will be evaluated for composition and distribution within the floodplain as well as qualitative assessments of plant health." The monitoring plan must also identify groundwater levels and hydroperiod, since the goal of the plan, as TBW acknowledges, "is to detect changes in surficial water levels and ‘manage’ them prior to the occurrence of any adverse environmental effects."

125. While this commitment sounds appropriate as a conceptual description of what TBW should include in a Joint Application, the commitment needs to be implemented to establish reasonable assurance. Given Mr. Eliason’s testimony about the substantial work that has been done and is ongoing at the project site, and given the quality of the work performed by TBW on the project to date, TBW should be able to develop a delineation that will provide sufficient specificity to meet the reasonable assurance test.

126. TBW has asserted that there may be impacts not adverse to the wetland systems that nonetheless alter their character in some way. All wetland systems are not the same, however, and the natural community here has adapted to the system as it currently exists. If the system changes, the burden would be on TBW to show that the new system would not constitute an adverse impact. This cannot be done without a baseline evaluation of the current wetland system.

127. In addition, the Joint Application should include a quantification of stream flows in Long Flat Creek and Doe Branch, so that the potential impacts from seepage and surface water runoff can be evaluated and managed together.

Managing Adverse Water Quantity Impacts

128. Petitioners have criticized TBW’s management plan because TBW has not identified with sufficient detail the number of extraction wells needed, the location and spacing of the wells, or the precise levels at which groundwater must be maintained in order to avoid adverse impacts. TBW, in turn, asserts that such information should be developed subsequent to permit issuance and project construction, because existing leakance predictions are unrealistically conservative and cannot accurately predict the location or amount of anticipated leakance. Once the filling of the Proposed Reservoir begins, TBW would then have an ability to respond to actual conditions and to efficiently calibrate the system at the locations and in consideration of the amounts of leakance which actually occur .

129. Petitioners’ criticisms have merit. The management plan does not have specific extraction well locations, pumping rates, water table levels to achieve, or hydroperiods to maintain. This does not mean that every detail of a management plan must be carved in stone prior to permit issuance. The Arbitration Panel finds that the project can meet the reasonable assurances standard even though TBW defers much of the management plan details until after permit issuance and commencement of reservoir operation, provided the agencies have sufficient information to impose conditions that will ensure a management plan that meets the reasonable assurance test. This can be accomplished provided that TBW has already established baseline conditions through a detailed delineation of the wetland system as described herein. Only then would the permitting agencies be able to evaluate whether in fact the impacts from the Proposed Reservoir would be adverse or not.

130. Nonetheless, TBW has not provided sufficient information on its management plan to explain how it will control leakance. At this time, therefore, TBW has not provided reasonable assurance that its management plan is sufficient to offset adverse impacts from push up. The Arbitration Panel agrees with TBW that it is too soon to provide a final, detailed management plan since the exact amount and location of leakance cannot be presently predicted given a number of factors previously discussed. But this uncertainty does not mean that specific information should not be provided at this time to assure that the components of the management plan are effective at controlling the expected leakance. Such a plan should indicate the types of wells to be used to maintain those levels, the capacity of such wells to reduce leakance in terms of time and space, historical information on how similar strategies have performed in the past, and the proposed placement of those wells given potential leakance to a distance of 4,000 feet from the Proposed Reservoir footprint. The precise locations, depths and types of wells to be used at the various areas around the Proposed Reservoir need not be shown, since that will be determined according to baseline and actual site conditions after the Proposed Reservoir is built.

131. A greater degree of specificity can also be used to develop a mitigation plan to address potential adverse impacts that cannot be avoided through the maintenance plan. The monitoring and maintenance plans must have a level of detail sufficient to enable the permitting agencies to assess the extent of adverse impacts if maintenance is not completely successful, as well as to be able to formulate as a permit condition a backup plan for mitigation for any adverse impacts that the management plan is ineffective in preventing. Because of the difficulties in developing all of the details of a maintenance plan when not all of the impacts can be known until construction and operation of the Proposed Reservoir, TBW must include in its Joint Application a commitment to implement this backup mitigation plan to compensate for any adverse impacts that the maintenance plan cannot prevent.

132. The maintenance plan should also be integrated with the mitigation plans for the East Pruitt area. This requires first that the East Pruitt mitigation plans must be developed with sufficient detail so that there is reasonable assurance that the mitigation can be constructed and maintained successfully. Secondly, the maintenance plan must be coordinated with the East Pruitt mitigation plans so that the maintenance plan will not be damaging to and will in fact protect and enhance the establishment and maintenance of those mitigation areas.

133. Finally, the maintenance plan should address potential adverse impacts to residents of the Wendel Avenue neighborhood. Since the Arbitration Panel has determined that TBW should be prepared to address potential impacts from water table push up of one foot or more within 4,000 feet of the reservoir embankment, since at least some of the homes in the neighborhood are within that distance, and since the homes use private wells and septic systems, the management plan should address these considerations. The focus of the maintenance plan for the Wendel Avenue neighborhood should be to ensure that no septic tanks or drinking water wells are adversely impacted by leakance or push up. As previously noted, the Arbitration Panel rejects Petitioners’ request that the plan also include extensive modeling to determine adverse water quality impacts, since the Panel has found that those are not reasonably expected to occur. The maintenance plan, instead, should be implemented in a manner consistent with the Arbitration Panel’s findings under Issue 1 – i.e., that groundwater should be monitored, for both quality and quantity.

134. In Petitioners’ Proposed Arbitration Award, Petitioners ask the Arbitration Panel to require TBW to make a further and more detailed assessment of the effect of push up outside the Proposed Reservoir. Since Petitioners have already done their own assessment, and since the Arbitration Panel finds that reasonable assurance can be met if TBW’s monitoring and maintenance plan assumes as an outside limit the assessment contained in Petitioners’ modeling efforts as presented at hearing in this case, the Arbitration Panel sees no need for TBW to do further modeling as part of the permit application. If TBW prefers not to incorporate Petitioners’ modeling into TBW’s own monitoring plan, however, the Arbitration Panel finds that it would be acceptable for TBW to propose its own additional modeling, provided the modeling takes into consideration the vertical and horizontal extent of push up.

135. In Petitioners’ Proposed Arbitration Award, Petitioners also ask the Arbitration Panel to provide more complete responses to RAI Nos. 2, 5, and 9. These RAIs appear to be asking for more information regarding the adequacy of the mitigation proposed for wetland impacts within the footprint of the Proposed Reservoir. The Arbitration Panel finds it difficult to understand exactly what Petitioners are seeking by this request, but considers the appropriate response to be that the East Pruitt mitigation plan needs to be more fully developed for the reasons set forth herein, but that none of the plans for other mitigation areas proposed by TBW remain at issue in this proceeding.

Issue 4
Public Health, Safety, and Welfare

Issue 4: Whether the Application provides reasonable assurance that the public health and safety has been adequately protected when the Application does not:

a. include a dam break analysis, including inundation map, and the emergency action plan is not complete;

c. address design alternatives to avoid or minimize risks to public health and safety;

d. is based upon "average" site conditions rather than actual conditions;

e. include design or analysis for emergency or rapid drawdown conditions; and

f. address impacts to septic fields, domestic wells, and surface drainage.

136. Petitioners take the position that TBW has not demonstrated reasonable assurance that public health, safety and welfare will be adequately protected by the Proposed Reservoir. These concerns are addressed in this arbitration award, first from the standpoint of embankment design and stability, and then in connection with dam breach analysis, inundation mapping and the Emergency Action Plan ("EAP"). Except to the extent that it may be relevant to this analysis of public health, safety and welfare, potential impacts to septic tanks, domestic wells, and surface drainage are discussed in the earlier sections of this arbitration award dealing with water quantity, quality and leakance.

Embankment Design and Stability
Site Selection and Geologic Analysis

137. Site selection is the first step in designing a stable embankment. In a project such as the Proposed Reservoir, it is important to have an understanding of the subsurface structure because it is a factor in the stability and safety of the embankment. The results of this type of study may indicate a need for design changes or the unsuitability of a particular location. Safety of the Proposed Reservoir has been a major consideration for TBW.

138. One of TBW’s original goals was to find a site outside the urban service area that had already been disturbed by human activity, and that was in reasonable proximity to a water supply source, which in this case would be the Hillsborough and Alafia Rivers. TBW went through an extensive site selection process, which initially focused on 17 sites, was subsequently reduced to 7 sites, and then to 3 sites before the final site was selected.

139. While densely populated areas were avoided during site selection for a number of reasons, not all populated areas could be avoided nor is such avoidance necessary. Other manmade water supply reservoirs are commonly located in urban or suburban areas. For example, in places within California, Colorado, Texas, North Carolina and along the Missouri River, water reservoirs are located in places within close proximity to populated areas. Also, in Denver, dams co-exist alongside major infrastructure projects, including state roads and interstate highways running along the toe and crest of the reservoirs.

140. As the list of potential sites was narrowed, TBW began to conduct rudimentary geophysical and geotechnical investigations, including soil borings. TBW assembled a multi-disciplinary team of experts for the embank