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 embankment design facet of the Proposed Reservoir. The team included experts in civil engineering, geotechnical engineering, geology, hydrogeology, and hydrology. The embankment design also included quality assurance provided by expert peer review. 141. An extensive geophysical and geotechnical analysis was undertaken to evaluate the site, including "photolineament" analysis of the substrata and bore holes, to locate features that might indicate potential for sinkholes or other subsurface features that would tend to be unstable as a foundation for the earthen embankment of the Proposed Reservoir. These data also helped refine the geophysical exploration and supplement the database from which the geologists ran a sinkhole risk analysis. After the photolineament analysis, a three-tiered combination of geophysical and geotechnical approaches was used. The geophysical exploration program included 29 miles of ground-penetrating radar, 13.6 miles of seismic refraction and over three miles of seismic reflection. Dr. Upchurch described this amount of analysis as far more extensive than the typical analysis. The geotechnical program involved doing soil borings along 15,000 feet of the site, as well as cone penetrometer tests and digging trenches to visually inspect the material below grade. The extensive study was necessary to understand the geology of the site as a foundation, and the suitability of the materials in the site for construction of the earthen embankment since the materials for construction of the embankment will come from the site.

142. All of these tests, investigations and procedures culminated in a site characterization report. The site characterization report, including the results of over one year of geophysical and geotechnical studies, is an extensive two-volume set comprising approximately 2,500 pages and is included in the Arbitration Hearing Evidence. (See Paragraph 6 of the Conclusions of Law for a definition of "Arbitration Hearing Evidence") Dr. Wisa, Mr. Donovan and the TBW team of experts are well-qualified in geophysics, geotechnical engineering and have experience and expertise with regard to dam embankment design and stability, particularly earthen dams including phosphate dams in Florida. Dr. Wisa, Dr. Upchurch and Mr. Donovan testified that this was the most extensive field investigation in which they have ever been involved. Mr. Donovan testified that not only was the team of experts highly competent in their respective fields, but the interdisciplinary coordination of effort was extremely well done.

143. The final site design for the Proposed Reservoir was reconfigured along the western footprint, in part, to avoid an area that could have a potential for sinkholes that may have compromised the integrity of the embankment, to minimize any potential public safety risk , and to avoid wetlands. The area of Hillsborough County where the Proposed Reservoir is planned is one of low sinkhole activity. Petitioners agreed that no sinkhole issues exist which might affect embankment stability.

144. Petitioners contend that aspects of TBW’s geologic analysis of the site were incorrectly performed. In particular, Petitioners are concerned with two layers of the substrata found in the area around the Proposed Reservoir site and their potential to make the embankment unstable: leach zones and clay layers.
145. Petitioners’ expert, Dr. Scovazzo, opined that the "leach zone," a weak layer in the substrata, should have been analyzed separately with a sensitivity analysis, that TBW used an "averaging" of geologic features instead of actual site conditions, and "averaging" would not identify the weakest areas of the foundation such as the discontinuous clay layers and leach zones. Dr. Scovazzo then concluded these zones could be weaker than those that were represented in the stability analyses conducted by TBW’s experts.

146. In regard to the observations by Dr. Scovazzo, Mr. Donovan, one of TBW’s embankment stability experts, testified that he ran separate computer analyses on each of the zones that are of concern to Dr. Scovazzo. Then, in order to verify the results of the computer analyses, Mr. Donovan checked the calculations by hand and evaluate the results against his substantial knowledge and experience with soil properties for dam embankments. Mr. Donovan analyzed each of these zones individually and found them stable. Apparently, Dr. Scovazzo had not seen this analysis.

147. Furthermore, with regard to Petitioners’ contention that TBW used an inappropriate "averaging" of geologic features, TBW’s experts testified that they utilized the approved methodology recommended by the USCOE for determining the soil strength properties of a layer of soil. This involves using a combination of the top two-thirds and the bottom one-third of all of the soil strength properties identified at the Proposed Reservoir site, thus producing a biased "weighted average" as recommended by the USCOE in its Engineering Manual EM 1110-2-1902, Engineering and Design - Stability of Earth and Rock-Fill Dams (1970), discussed above regarding embankment stability. The USCOE Engineering Manual provides:
For each embankment zone and foundation layer, design shear strengths should be selected such that two-thirds of the test values exceeded the design values. In most cases, the design shear strength for the various zones and layers should always be greater than the lowest test value for the zones and layers being considered.

(USCOE Engineering Manual, p. 13) TBW followed USCOE’s recommendations and Petitioners did not provide contrary authority to the Arbitration Panel. Petitioners’ embankment stability expert, Dr. Scovazzo, stated that he would apply the same embankment safety factors used by TBW for his analysis except that, in addition, he would have done a "rapid draw-down" analysis (to be discussed later in this arbitration award). Nonetheless, Dr. Scovazzo said that he was unable to render a professional opinion as to embankment stability from a design standpoint.

148. Additionally, Dr. Wisa testified that the discontinuous clay layers questioned by Petitioners were not a concern primarily because they were discontinuous, as verified by soil borings. He evaluated both the discontinuous clay lenses and the leach zones from the standpoint of their location and strength properties, based on his extensive knowledge of soil properties, and concluded that they would have little impact on the stability of the dam.

149. In summary, Petitioners’ experts have acknowledged the extensive and competent geologic investigation of the site. Petitioners have presented no evidence that the site is unsuitable for the proposed earthen embankment. The Arbitration Panel finds that the extensive geologic analysis conducted by TBW’s experts was thorough, credible and demonstrated that an adequate analysis was done of the leach zones and discontinuous clay layers and that the stability of the earthen embankments will not be jeopardized.

Geologic Modeling

150. Petitioners also contend that TBW’s two-dimensional (2-D) modeling of the embankment design cannot take into consideration the "interfingering" of the permeable and impermeable layers that are potential pathways for seepage. Petitioners claim that the seepage may result in structural instability.

151. Petitioners’ expert, Dr. Scovazzo, asserts that a three-dimensional (3-D) model is needed to better evaluate the geology of the specific area. Dr. Scovazzo merely offered his personal opinion on this subject and did not refer to any generally accepted engineering principles or agency criteria to support the need for a 3-D model with regard to the Proposed Reservoir. Furthermore, no evidence was introduced to show that 3-D modeling is required by any specific Applicable Substantive Law, so again the Arbitration Panel must look to the totality of the Arbitration Hearing Evidence to evaluate for public health, safety and welfare considerations.

152. Dr. Wisa testified that 2-D modeling is usually done for earthen dams of this type because in an earthen dam there is typically a very long section, miles long with a fairly small-height dam, so that everything is in plane. Thus, there is not a need to analyze the embankment in terms of vertical, horizontal, and along the axis. The analysis involves picking a slice and examining the slice. On the other hand, for example, where a very high dam is being built in a steep, narrow gorge, the sides of the gorge have a big influence because they are high and narrow compared to the dam. In that case the side effects of the natural ground walls play a substantial role in stability, and a 3-D approach is appropriate.

153. The Arbitration Panel accepts Dr. Wisa’s testimony and concludes that the 2-D model used by TBW is appropriate and adequate for the geologic modeling of the embankment.

Embankment Stability Analysis

154. The ERP permitting requirements contain no Applicable Substantive Law establishing any specific design standard for the construction of embankments as part of an off-stream reservoir. Instead, the only pertinent Applicable Substantive Law is general in nature, i.e., that a permit applicant provide a reasonable assurance demonstration that the embankment is designed not to fail. This requirement comes from Rules 40D-4.301 and 0D-4.302, F.A.C., and 33 C.F.R. §320.4, requiring that an ERP project not be a threat to public health, safety or welfare, or cause off-site flooding, and must be capable of functioning as proposed.

155. In a stability analysis for embankments, engineers evaluate "safety factors," or "factors of safety." As it pertains to an embankment stability analysis, "safety factor" is defined generally as the available shear strength, that is, the strength of the soil divided by the strength required to maintain stability. Accordingly, it is a measure, or a ratio, of shear strength available to shear strength required. For example, a factor of safety of one implies that there would be enough shear strength available to meet that which is required as a result of sliding and instability analysis. Thus, a factor of safety of 1.5 means that there would be 50 percent more strength available along that failure plane than is required to maintain it stable.

156. Embankments are not normally involved in an ERP application, nor are there any specific criteria, such as safety factors, mandated for embankment design. However, because of the public safety-related issues, TBW looked to the guidelines and regulations of the USCOE, United States Soil Conservation Service, and the State of Georgia for guidance as to safety and function of the embankment design. These governmental agencies have extensive experience in the regulation of earthen embankments.

157. A comparison of the factors of safety for the stability analysis is presented in Table 6.1, contained in RAI Response No. 60. Mr. Donovan and Dr. Wisa used their professional judgment based on extensive and long-term experience with dam and embankment design to evaluate the applicability of and to select the appropriate safety factors for the stability analysis of the embankment. They did not select inapplicable factors, such as those for earthquakes, for example, because the Proposed Reservoir site is located in seismic zone "0." Thus, the USCOE guidelines for safety factors were adopted, along with consideration of some from the United States Soil Conservation Service and the State of Georgia, as the most applicable for the Proposed Reservoir, and then were used for the design of the facility. The USCOE guidelines were taken from USCOE Engineering Manual EM 1110-2-1902, Engineering and Design - Stability of Earth and Rock-Fill Dams (1970).

158. The embankment design and stability analysis for the Proposed Reservoir was conducted for the safety factors pertaining to the following scenarios, i.e., at the end of construction but before filling, the initial and cyclic filling, during the process of impounding water, and drawdown after there is a seepage or "phreatic" surface, which is a line of seepage through the embankment and the foundation. Mr. Donovan testified that the safety factors of both the USCOE and the State of Georgia were met for all of these scenarios.

159. The Arbitration Panel concludes that, with regard to embankment stability, TBW conducted a thorough and competent analysis of available safety factors, and that the appropriate safety factors were met or exceeded. Therefore, TBW has demonstrated that the embankment, as designed, will be stable and capable of functioning as proposed, will be protective of public health, safety and welfare and will not cause off-site flooding.

Rapid Drawdown Analysis and Emergency Drawdown

160. Petitioners assert that a "rapid drawdown" analysis is required not only by good engineering practice but also by the Soil Conservation Service (SCS) Technical Release #60 (Oct. 1985) ("SCS TR-60"), as well as the USCOE Engineering Manual, EM 1110-2-1902, in order to analyze the stability of the upstream embankment to ensure that the Proposed Reservoir is conservatively designed. A "rapid drawdown" analysis has the water surface in the Proposed Reservoir theoretically lowered instantaneously in order to evaluate the embankment stability. Petitioners assert that TBW did not conduct a "rapid drawdown" analysis, but rather allowed the water surface to be gradually lowered over time. This would allow the embankment to adjust to the lowering of the water in the Proposed Reservoir instead of being a rapid drawdown analysis.

161. All parties recognize that an "instantaneous drawdown" of the Proposed Reservoir is impossible; nevertheless, Petitioners contend that, pursuant to SCS TR-60, such an analysis is required in order to determine embankment stability and provide a conservative embankment design. Petitioners’ expert, Dr. Scovazzo, agreed that the USCOE allows a rapid drawdown analysis based upon "effective drawdown rates," as was done by TBW, when the assumed "instantaneous rapid drawdown" is "excessively conservative." Thus, the disagreement between Petitioners’ and TBW’s experts revolves around the applicability of SCS TR-60, and whether an "instantaneous drawdown" analysis would be "excessively conservative" for the Proposed Reservoir.

162. TBW’s expert, Mr. Donovan, had extensive, high-level USCOE experience and testified that applicable USCOE guidelines had been followed. He went on to explain that an "instantaneous drawdown" analysis had not been done because it is not applicable in the context of the USCOE criteria, and the SCS criteria is silent on the issue of drawdown rate. Dr. Scovazzo’s response to the issue of drawdown rate was to state that no rate needed to be specified.

163. Mr. Donovan explained that, in the rapid drawdown case, the water in a reservoir empties immediately. The "phreatic" surface, or water seepage level within the embankment, however, does not drop along with the water in the reservoir, and moves to destabilize the embankment by then draining from the embankment.

164. The USCOE guidelines state that the rapid drawdown analysis is a conservative analysis. The guidelines give two situations where there are mitigating circumstances that do not require it: inability to draw down the structure instantaneously, and the soil conditions are such that they will drain along with the pool. Mr. Donovan testified that both of those mitigating circumstances will exist with regard to the Proposed Reservoir.

165. Both Petitioners’ and TBW’s expert witnesses agreed that, in the unlikely event that an instantaneous rapid drawdown did occur at the Proposed Reservoir, the only damage which would be sustained would be to the upstream face of the embankment and there would be no risk of off-site flooding. No evidence was submitted that there would be damage to other persons, property, or any flooding created in the event an instantaneous drawdown at the facility occurred and there was damage to the embankment.

166. Petitioners also are concerned about the "emergency drawdown" situation. Unlike the "rapid drawdown," which is a design test for evaluating embankment stability and not a real-world scenario, an emergency drawdown is related to the capability of the operators to draw down the facility as fast as operationally feasible. For example, should a structural problem develop, emergency drawdown of the reservoir might be necessary for the safety of nearby residents and, eventually, access for repairs.

167. Petitioners are critical of the "emergency drawdown" operational capacity, since it is described in the Joint Application as only 2"-3" per day. Further, Petitioners assert that an "emergency drawdown" capability of only 2"-3" per day was insufficient according to TBW’s independent quality assurance reviewers, XCORPS. However, testimony offered at the hearing indicates the document reviewed by XCORPS was only at the 30% completeness stage, which, according to the XCORPS correspondence produced at the arbitration hearing, was commensurate with the level of information that should be expected at that stage.

168. Mr. Donovan testified that the embankment is designed to be stable for emergency drawdowns of up to one and one-half feet per day, which is the maximum amount of water which can be withdrawn from the facility at any time absent a pre-existing breach of the embankment. As a result, the embankment remains stable at any lesser drawdown rates which might be applied to it. Emergency drawdown of up to one and one-half feet per day can be accomplished, given the 84" pipeline and the blow-off valves that are part of the pipeline. Lesser drawdowns of six inches per day can be achieved by sending 66 mgd per day to the water treatment plant, and using the blow-off valve system to evacuate another 94 mgd. Operational drawdown conditions are two to three inches per day, sending only 66 mgd per day to the water treatment plant.

169. Thus, the Arbitration Panel finds that the rapid drawdown analysis is not a requirement, but is rather one method to evaluate dam stability. The rapid drawdown analysis is not required for the Proposed Reservoir because it is an "excessively conservative" analysis given the design of the Proposed Reservoir. Additionally, the Arbitration Panel finds that the operational and emergency drawdown scenarios evaluated by TBW are reasonable for the Proposed Reservoir .

Piping

170. Petitioners have also raised the issue of "piping" as a possible mode of failure for the earthen embankment planned for the Proposed Reservoir. "Piping" is a term used in embankment design to refer to the movement of soil carried by water. Piping can occur along the water supply pipelines that are part of the Proposed Reservoir or through the soil anywhere in the embankment.

171. The testimony of the embankment stability experts concurred that piping would be the most likely cause of failure of an earthen dam. Petitioners are critical of the embankment materials, contend that the embankment would be exposed to water seepage, and that the embankment and foundation will be susceptible to piping. Moreover, Petitioners claim that TBW’s analysis also failed to fully consider the potential for piping along the water supply pipelines penetrating the dam, which is an area of major concern because the pipeline area is a location more likely to fail than the rest of the embankment. Finally, Petitioners assert that TBW failed to consider design alternatives, such as a filter drainage diaphragm, and suggest that such alternatives could add a significant level of protection.

172. Dr. Wisa and Mr. Donovan stated that the overall intent of the design for the Proposed Reservoir is to slow the movement of water through the embankment and control it, thus averting piping. They admitted that some water is always expected to move through earthen embankments and, if the water carries enough soil with it, a pipe-like hole can form in the embankment, potentially compromising the stability of the embankment. Such movement can occur for a number of reasons, including the nature of the soil, the head (pressure of the water table), or lack of proper soil compaction in the case of foreign items in the embankment, such as a water supply pipeline.

173. Dr. Wisa and Mr. Donovan further elaborated that control of piping begins with the design, type and compaction of the material that goes into the embankment. That is one reason why the site characterization was done, to understand what sort of material would be installed, compacted and built as designed, to prevent soil driven by water from piping through the facility. The design of the Proposed Reservoir calls for removal of potentially problematic clays, selection of the proper soils, mixing them to create a homogeneous blend, and then compacting them properly to reduce head within the embankment. Additionally, the interior of the embankment is designed to have a geomembrane, a plastic liner faced with soil cement. The geomembrane and the soil cement would tie into the a soil-bentonite cutoff wall to contain and control the water and slow its movement to the outside. There could be waves inside of the embankment, and the soil cement is designed for erosion protection of the interior or upstream slope and to protect the geomembrane from deterioration. Water in the embankment would also be controlled and diverted by the use of a blanket drain and toe drain system.

174. Furthermore, TBW has designed additional systems to reduce the risk of piping failure at the Proposed Reservoir. Such systems include: (1) the design of a blanket drain system to drop the head differential of water passing through the embankment; (2) a toe drain collection system to drop the water gradient; (3) a 3:1 slope design which extends the path within which piping must occur.

175. In addition to the soil analysis, mixture and compaction of soils, and the above-referenced measures related to the stability of the entire embankment, the design of the Proposed Reservoir has addressed potential piping along the two pipelines that would be connected to the facility by: (1) designing the pipelines to go approximately 13 feet below grade, that is, under the embankment rather than through it; (2) encasing the pipe in flowable fill (a specialized concrete mixture) in the lower half of the pipe bed where it is difficult to get adequate compaction of the soil, so that there will be no voids conducive to piping; and (3) including a circumferential piezometer blanket and monitoring system that goes around the flowable fill to measure whether there is any movement of water or materials in the area around the pipeline to detect any potential piping problems and to control the movement before it becomes problematic.

176. Mr. Donovan testified that TBW’s experts decided against the use of seepage collars or filter drainage diaphragms on the pipeline because, after many years of study, the USCOE found that instead of retarding or preventing piping along pipelines within embankments, these devices tended to make the area around the pipe more susceptible to piping. He also said that the USCOE no longer allows them on its projects.

177. Lastly, the Reservoir Operation and Maintenance Plan will also play a significant role in quickly detecting any signs of piping and in taking immediate corrective action. A Reservoir Operation and Maintenance Plan was developed to outline the operational and maintenance procedures for the Proposed Reservoir. See Joint Application, AppendixK. The plan describes the Proposed Reservoir operation, focusing primarily on maintaining the embankments. The plan addresses filling the Proposed Reservoir as well as withdrawals, and provides a procedure for visual inspection of the embankments. It also includes maintenance guidelines. Moreover, the design consultant will have a significant role in supervising construction and then in training the TBW staff in the operation and maintenance.

178. Thus, the Arbitration Panel finds that the: (1) piping issue has been adequately addressed by the soils to be used and the design compaction of these soils; (2) soils, when properly compacted, will meet the selected embankment design criteria adopted from the USCOE Engineering Manual referenced earlier; (3) embankment design systems are reasonable and appropriate to reduce the risk of a piping failure at the Proposed Reservoir; (4) specific design measures relative to piping along the pipeline are reasonable and appropriate to reduce the risk of piping along the pipeline; and, (5) the Reservoir Operation and Maintenance Plan, implemented as proposed, should be effective in observing and correcting any potential piping before it becomes problematic. The Arbitration Panel finds that these factors are protective of public health, safety and welfare relative to piping concerns.

Downstream Toe Protection

179. Petitioners assert that TBW has failed to consider the potential effects of flooding on the downstream toe of the embankment. They also contend that during a significant storm event, water may flow against the toe of the dam, causing erosion of the embankment with water also backing up in the toe drain and blanket drain, further compromising the embankment integrity.

180. The various experts for the parties generally agreed that the downstream toe is a critical part of the embankment. Erosion of the downstream toe by natural storm events or other events could compromise the stability of the embankment. Thus, the regular inspections as provided by the Operation and Maintenance Manual, during both dry and wet seasons, will be an important part of proper operation and maintenance.

181. In addition to all of the soils and stability engineering provided for the embankment, the downstream toe would be protected on the side away from the embankment by a paved toe road. It serves two purposes. First, it would provide access for inspection of the downstream toe around the entire perimeter of the Proposed Reservoir. Second, it would protect the toe from the natural forces of a 500-year flood event by virtue of the construction and elevation of the toe road. TBW’s experts testified that the elevation of the toe/perimeter road is designed to be set more than one foot above the elevation of a 500-year flood. The 500-year flood event translates into one chance in 500 of such a flood happening in any one year.

182. Petitioners’ expert, Dr. Scovazzo, contended that the downstream toe should be protected from the natural forces of a "probable maximum precipitation" ("PMP") event, rather than a 500-year flood event. Both Petitioners’ and TBW’s experts concurred, however, that there is no Applicable Substantive Law or other criteria which specifically requires the use of a PMP event for analysis of downstream toe protection. Rather, Petitioners’ expert stated that this is his "personal" standard, rather than a standard or guideline adopted by any regulatory body or a generally accepted and sound engineering practice.

183. Mr. Donovan testified that in his experience relative to dam design, the PMP event has been used only to size inflows into the reservoirs, and that he has never seen it used for storm drainage control outside the reservoir. Furthermore, he stated that the most common designs he has seen associated with downstream drainage, or storm water control outside the footprint, are either the 100-year storm or, more frequently, the 25-year storm. TBW by design would protect the downstream toe to the more conservative level of a 500-year storm event.

184. In addition, no evidence was introduced that would indicate how, if at all, the downstream toe stability would be jeopardized in the event of a PMP occurrence. Petitioners’ expert was unable to state any probability of a stability problem being caused, even if a PMP event occurred at the facility.

185. The Arbitration Panel concludes that the downstream toe would be adequately protected by the design measures for the Proposed Reservoir.

Dam Breach Analysis, Inundation Mapping, and Emergency Action Plan

186. From the outset of this arbitration process, Petitioners have contended that TBW had not provided the reasonable assurance required by Applicable Substantive Law because it failed in the Joint Application to include a dam breach analysis, including inundation mapping, and a final or complete Emergency Action Plan ("EAP"). A dam breach analysis involves selecting sites along the embankment and evaluating the potential hazard that breach events, at those points, might present to the surrounding area. An inundation map is a geographical map that represents the dispersal of water once it gets out of its containment. Modeling animations or representations may be done that attempt to predict the direction, depth and the time of flow of water once it has escaped a reservoir. This shows what populations and property might be affected by the inundation of water. An EAP is a planned course of action that a person and/or a facility would follow in response to an abnormal circumstance at that facility. Generally, the EAP should delineate specifically who does what, who is notified, and what actual response actions should be taken. The EAP should be completed before a facility is operational.

187. These items raise the issues of off-site flooding, and public health, safety and welfare. The actual framing of this issue began on January 26, 2001, when TBW filed its "Motion For Order Determining Applicable Agency Rules, Policy and Statutes and Memorandum in Support." The Arbitration Panel ruled that "[T]he Applicable Substantive Law does not specifically require the inclusion in the Joint Application, or consideration at the final hearing, of an Emergency Action Plan, dam break analysis or inundation map(s)." However, the Arbitration Panel did not preclude the parties from developing an evidentiary basis for demonstrating the relevance of these items to the more general permitting criteria related to off-site flooding, or public health, safety and welfare. The ruling stated that reasonable assurance, or the lack of it, may be shown in a number of ways for these more generic standards.

188. Accordingly, TBW had the choice as to how to demonstrate reasonable assurance of no off-site flooding and no threat to the public health, safety, or welfare as a result of the design, construction and operation of the Proposed Reservoir. TBW chose to do so through the evidence of the design and stability of the embankment and showing that there would not be off-site flooding or threat to public health, safety, or welfare. TBW did present a preliminary EAP in the Joint Application and the criteria it would use to finalize the EAP, including the use of the FLDWAV model in coordination with the State Dam Safety Officer.

189. On the other hand, Petitioners assert that a dam breach analysis, inundation mapping and an EAP are relevant, necessary and should be performed at this time, at least with regard to reasonable assurances related to off-site flooding and public health, safety and welfare. Also, FDEP, both in correspondence related to the Joint Application and in the RAI, requested a dam breach analysis, inundation mapping and an EAP, suggesting northwest and southeast scenarios for a dam breach analysis and inundation mapping. At least one witness suggested that these locations were chosen because they were the closest points on the Proposed Reservoir to areas with residences.

190. One of TBW’s witnesses stated that TBW plans to submit inundation mapping and a dam break analysis to the FDEP as part of the permitting procedure after its staff meets with the FDEP staff and further clarifies the modeling scenarios that FDEP proposed. According to the Arbitration Hearing Evidence, it appears that the FDEP had not yet formulated any final agency positions concerning what modeling parameters or scenarios, if any, it would like modeled, what assumptions might be appropriate for such models, what data input parameters would be appropriate or what locations should be modeled.

191. Petitioners conducted their own dam breach analysis, produced associated inundation mapping, and presented testimony in this regard by Mr. Mendelsohn and Dr. Fread. Petitioners’ dam breach analysis and inundation mapping are the only ones in the Arbitration Hearing Evidence. Additionally, in order to support their contention that the EAP in the Joint Application is deficient, Petitioners presented testimony by Mr. Gispert, an expert in emergency management.

192. While the evidence showed that there is reasonable assurance that the embankment is stable and highly unlikely to fail, the issue that remains is the adequacy of an EAP in the highly unlikely event of a dam failure. A substantial breach in the Proposed Reservoir could lead to loss of life and extensive damage to property. There are two residential areas in the general vicinity of the Proposed Reservoir. To the northwest of the Proposed Reservoir is the developed portion of a development of regional impact ("DRI") known as Fishhawk Ranch. It does not abut the Proposed Reservoir and there is a natural buffer between the reservoir footprint and the DRI. The developed residential area of the DRI is at least one mile away from the reservoir footprint. The Wendel Avenue subdivision, containing about 51 residences, is located approximately one-quarter of a mile from the southeast embankment toe.

193. Wendel Avenue residents are the closest neighbors to the Proposed Reservoir. While the embankment profile is the lowest in the southeast area near Wendel Avenue because the natural grade is the highest, testimony was offered that a landscaping berm could provide some additional protection for the residents of Wendel Avenue in the unlikely event of a breach. However, there was insufficient evidence to make findings with regard to the nature of the landscape berm. TBW representatives, at a public meeting with residents from Wendel Avenue, stated that there ought to be a landscape buffer installed next to them and agreed to build one. Additionally, sirens or an automatic telephone notification system were suggested by Mr. Gispert as helpful tools to give public warning if needed.

194. TBW has already prepared a draft EAP for the Proposed Reservoir that is contained in AppendixL of the Joint Application. Also, TBW voluntarily submitted its EAP to Hillsborough County and its Director of Emergency Management for review. The testimony indicated that the EAP followed FEMA guidelines. While Mr. Gispert had a number of criticisms of the EAP, the document he reviewed is only a draft.

195. The EAP would not be kept as a part of Hillsborough County’s Emergency Plan, and would only be an internal document used by TBW, not Hillsborough County. Although various other dams and impoundments exist within Hillsborough County, the only other EAP which has been submitted to Mr. Gispert involves a plan submitted by IMC after a dam failure occurred. He has no other plans or maps for any other dams or impoundments, or for the City of Tampa’s dam on the Hillsborough River.

196. Mr. Gispert testified that emergency planning should begin with a hazard vulnerability analysis. The hazard vulnerability analysis is a general name for determining what may affect persons or facilities. It is an assessment of the risk associated with a possible breach. An inundation map is just one of a number of hazard vulnerability analyses. There are other types or forms as well. However, there was no evidence that, from an emergency planning standpoint, the Proposed Reservoir should be redesigned or moved, or that any roads or bridges in the vicinity required design changes.

197. In their dam breach analysis, Petitioners assume that a breach will occur at the Proposed Reservoir at two specified locations, but the evidence did not show design flaws or problems at those sites. Nor was a probability analysis made as to the likelihood of a breach occurring at the Proposed Reservoir and/or occurring at the locations which Petitioners modeled. The dam breach analyses and associated mapping provided by the Petitioners were designed to show a "worst-case scenario" impact upon Fishhawk Creek and the residents at Wendel Avenue.

198. In the event that a future breach occurred at a location different from those which were selected and modeled, new modeling would have to be performed. The purpose of producing dam breach analysis modeling and a hazard vulnerability analysis (which may or may not be in the form of associated inundation maps) is primarily to assist emergency action planners in planning for and dealing with any potential breach at the facility.

199. Even assuming that all of the Petitioners’ dam breach analysis modeling and associated mapping were correctly performed, the modeled results represent only a mathematical prediction of a "possible" result rather than a probable or realistic one. Moreover, while Petitioners’ modeling is useful as a starting point for contingency planning purposes, it contains limitations relating to assumptions and input parameters.

200. All of the stability experts who opined as to the possible breach of the earthen embankment agreed that there was practically no risk of an overtopping or embankment stability failure at the Proposed Reservoir. As a result, the only plausible type of design, construction or operational failure would be a piping failure.

201. As the Arbitration Panel has previously found, embankment failure as a result of piping is highly unlikely at the Proposed Reservoir, provided it is designed, constructed and operated in a manner consistent with the Joint Application. In addition, piping failures usually provide enough time for either correction of the problem or appropriate notice of the problem to be given to affected persons. Piping usually results in deposits of soil material and is commonly referred to as "sand volcanos." These indicators of piping build over a period of weeks and are usually spotted in advance of failure by inspection personnel at a facility like the Proposed Reservoir.

202. Typically, repairs of earthen dam structures which have been subjected to piping involve sufficient advance warning to allow for the installation of relief wells and other repair techniques on the downstream toe of the embankment. Given the design of the Proposed Reservoir, even the Petitioners’ experts agree that it would be a more probable event to have "weeks" of advance notice of a piping problem, as opposed to hours of notice. In this regard, the Operation and Maintenance Plan provides for regular inspections to identify and take immediate corrective action. Also, the EAP which was submitted by TBW included the presence of operational and maintenance personnel at the facility, 24 hours per day, 7 days per week.

203. In light of the above factual analysis, the Arbitration Panel makes the following findings with regard to the issue of a dam breach analysis, inundation mapping and the EAP:
(a) Based on the weight of the Arbitration Hearing Evidence related to embankment design and stability, the Proposed Reservoir should reasonably be expected to function as intended, not cause off-site flooding, and not adversely affect the public health, safety, or welfare, or the property of others.
(b) The dam breach analyses and inundation mapping may be useful planning tools for developing an EAP.
(c) To be helpful and useful to emergency planners, an EAP should be completed and implemented prior to placing the Proposed Reservoir into operation.
(d) Applicable Substantive Law does not compel the need for an EAP to be implemented until sometime before the Proposed Reservoir begins to receive water and does not require completion of an EAP at this time.
(e) The EAP is an organic document that should be updated as circumstances, agency contacts and other matters related to emergency planning related to the Proposed Reservoir and vicinity change.

CONCLUSIONS OF LAW

1. The Arbitration Panel has authority to issue a binding arbitration award in this matter pursuant to the 1998 Interlocal Agreement.

2. Petitioners are authorized pursuant to the 1998 Interlocal Agreement to seek this binding arbitration.

3. The procedural rules followed by the Arbitration Panel to decide this matter are contained in the 1998 Interlocal Agreement and the American Arbitration Association’s Environmental Arbitration Guidelines.

4. Pursuant to the 1998 Interlocal Agreement, 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." ("Applicable Substantive Law") 1998 Interlocal Agreement, Section 3.13(B). This is the ultimate issue of law in this arbitration proceeding.

5. The Arbitration Panel has previously decided that TBW’s burden of proof in this arbitration proceeding is to show compliance with the applicable substantive statutes, rules and policies and not merely whether the "application" for a "Primary Environmental Permit" is complete. Arbitration Panel Order, December 22, 2000.

6. The Arbitration Panel has also previously determined the applicable "rules, policy and statutes" for this arbitration proceeding. Arbitration Panel Order, February 28, 2001. These "rules, policy and statutes" are listed as part of Attachment 2 (Arbitration Panel Order, February 28, 2001, Appendix A) to this arbitration award. In addition, the Arbitration Panel has determined that the term "application" should be construed to mean the information provided in the original application submitted to the agencies for the Primary Environmental Permit as well as any other information properly developed during the arbitration discovery process, including, but not limited to, information provided to agencies pursuant to agency’s request for additional information, and admitted into the arbitration hearing record at the final arbitration hearing. Arbitration Panel Order, December 22, 2000. (The Joint Application, the RAI Response and all the evidence admitted at the final arbitration hearing are jointly referred to in this arbitration award as the "Arbitration Hearing Evidence.")

7. The Arbitration Panel has not previously decided what the term "reasonable assurances" means as that term is used in the 1998 Interlocal Agreement. The Arbitration Panel did discuss in the Arbitration Panel Order of December 22, 2000, that "reasonable assurance" is a term of art used extensively in Florida’s environmental statutes and regulations. Arbitration Panel Order, December 22, 2000, pp. 3-6. In their respective recommended arbitration award pleadings and in oral argument to the Arbitration Panel, both TBW and Petitioners have proposed that the term "reasonable assurances" should be interpreted in a manner consistent with how that term has been interpreted under Florida’s environmental statutes. The Arbitration Panel has not found any authority inconsistent with this interpretation. Accordingly, the Arbitration Panel will consider the term "reasonable assurance" to mean the same as how that term has been interpreted under Florida’s environmental laws.

8. Reasonable assurance requires TBW to demonstrate that the Proposed Reservoir has a "substantial likelihood" of being "successfully implemented" to comply with all applicable statutes, rules and policies. Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992); Save Anna Maria, Inc. v. Department of Transportation, 700 So.2d. 113, 117 (Fla. 2d DCA 1997).

9. To meet the reasonable assurance standard, an applicant must address impacts and contingencies which can reasonably be expected to occur, but an applicant is not required to eliminate all contrary possibilities, however remote, or to address impacts which are only theoretical and not reasonably likely. Hoffert v. St. Joe Paper Co., 1990 WL 749536, *15 (Fla. Div. Admin. Hrgs. 1990); Alafia River Basin Stewardship Council, Inc. v. SWFWMD, 1999 WL 1486358, *28 (Fla. Div. Admin. Hrgs. 1999); Crystal Springs Recreational Preserve, Inc. v. Southwest Florida Water Management District, 2000 WL 248392, *36 (Fla. Div. Admin. Hrgs. 2000). The applicant’s burden "is one of reasonable assurances, not absolute guarantees." Manasota 88, Inc. v. Agrico Chemical Company and Florida Department of Environmental Regulation, 12 FALR 1319, 1325 (February19, 1990).

10. The parties and the Arbitration Panel have all struggled with the practical application of determining whether the Joint Application meets the reasonable assurance standard at this stage of the permit application process. The difficulty is that under the 1998 Interlocal Agreement, the Arbitration Panel has been called upon to determine whether TBW has met its "burden of providing reasonable assurance that the Authority’s Primary Environmental Permit meets all applicable agency rules, policy and statutes." When the permitting agency, here the FDEP, makes a similar evaluation pursuant to Rule 62-4.070, F.A.C., the FDEP is reviewing an application that has already been determined complete after having received responses to requests for additional information pursuant to the provisions of Section 373.4141, Florida Statutes, and Rule 62-4.055 F.A.C.

11. Because the arbitration process was initiated, as required under the 1998 Interlocal Agreement, within 30 days of the date the TBW Board approved filing the Joint Application with the FDEP, and the FDEP has continued to review the Joint Application and has yet to conclude its completeness determination, the result is that the parties must present, and the Arbitration Panel must consider, a Joint Application that has not yet even been determined complete by the FDEP. The difficulty that this presents to the arbitration process is illustrated by the discussion of the legal standard for review contained in the Arbitration Panel’s "Order on Motion to Determine Scope of Arbitration and Related Motion to Strike," wherein the parties argued over the appropriate standard for evaluating the reasonable assurance requirements of the Interlocal Agreement. The conclusion of the order was to interpret the intent of the Interlocal Agreement "to require TBW to provide reasonable assurance that the information contained in the Joint Application will comply with the applicable substantive criteria of relevant agency permitting statutes, rules and policies."

12. The only way that the Arbitration Panel can determine whether such reasonable assurance has been provided is through review of the Arbitration Hearing Evidence with regard to the disputed issues, based upon whether the particular issue has a level of detail necessary to make it consistent with the criteria for a complete application, since incompleteness itself can be a basis for permit denial by FDEP. See Rule 62-4.055(1), F.A.C. Indeed, the 90-day time frame within which FDEP must process and take agency action upon a permit application does not even commence until FDEP has received a complete application. See Rule 62-4.055(5), F.A.C.; Fonte v. State Dept. of Environmental Regulation, 93 ER FALR 29, 1993 Fla. ENV LEXIS 23 (DER 1993).

13. This is a difficult situation for all parties to arbitration proceedings created under the 1998 Interlocal Agreement. For TBW, it raises the possibility of multiple arbitrations – one at the time that the permit application is approved by the TBW Board, and another at the time or times the application is amended as a result of arbitration. This is particularly problematic given recognition by experts versed in FDEP procedures that an applicant for a permit does not normally offer everything in the way of mitigation in the original application.

14. For the challenger, the problem is in determining what to challenge. TBW can submit an application that under normal procedures would be considered incomplete, provide additional information that has the effect of changing the impacts of the project in significant ways, and then be issued a permit that looks very different from the original application. Since the member governments have waived their rights to challenge a permitting decision under Chapter 120, Florida Statutes (2000), the member governments could thereby be precluded from any challenge to permit conditions that appear different than what originally was proposed in the application, unless the original application is challenged. Similarly, if the Arbitration Panel were to rule that the information provided as to the disputed issues was incomplete, but not require TBW to amend its application to provide the necessary information, the member governments would lose any subsequent opportunity to challenge that additional information, whether or not that additional information meets the reasonable assurance standard of Applicable Substantive Law.

15. Confounding this analysis is the question of whether a response by TBW to a RAI must necessarily result in an amendment to an application that must be approved by the TBW Board and thereby even be subject to arbitration. There is nothing in the Interlocal Agreement that identifies what constitutes an amendment for arbitration purposes, other than by an arbitration award requiring one or one that TBW decides to file. FDEP rules do not expressly require or define what are "amendments" to permit applications. Since FDEP asks for additional information to an application rather than an amendment to it, this provides a member government with yet further incentive to challenge an incomplete application. This points to the importance of the Arbitration Panel’s determination of reasonable assurance based upon completeness rather than upon a work in progress that will likely become complete.

16. The Arbitration Panel believes that when considered in the light of agency policy regarding conditions precedent and subsequent to permit issuance, the arbitration process as approved under the Interlocal Agreement provides a way of working through the difficulties described herein. First of all, as Petitioners acknowledged in closing argument, any subsequent arbitration would be limited to those subjects that TBW will have to include in its amendment to its Joint Application in response to the arbitration award. The new proceeding does not create an opportunity to challenge previously unchallenged areas of the permit application or areas resolved by the previous arbitration. This gives further weight to the importance of a member government in identifying specifically the matters in dispute, which it is required to do under the Interlocal Agreement. Unlike a Chapter 120 proceeding, where an ALJ must decide whether an applicant has provided reasonable assurance that the application meets the relevant permitting criteria, here the only issues subject to arbitration are those identified by the challenging member government. All others are not subject to review for permit compliance, either in the subject arbitration proceeding or at some later date, at least not by a member government.

17. Therefore, while the process allows for the potential of multiple arbitrations in the event of incompleteness, the new arbitrations would be limited in scope, only to those items for which the Arbitration Panel has determined an amended application is needed. This protects both TBW from open-ended proceedings and the member government from having to accept a permit application without knowing whether certain provisions may have potential impacts that the member government opposes because they violate Applicable Substantive Law.

18. A somewhat separate but related issue is the degree of specificity that permit conditions need to have to meet the reasonable assurance test. The Arbitration Panel rejects TBW’s argument that it only needs to prove that it has an application that is capable of becoming permittable in order to meet the reasonable assurance test. At the same time, however, the Arbitration Panel recognizes that all conditions need not be identified in full detail in the proposed agency action on the permit – conditions subsequent can often be acceptable. Therefore, even though the Arbitration Panel has determined some of the project details to require further definition, it is permissible for those details to be developed subsequent to permit issuance, without requiring TBW to amend, as long as TBW has provided reasonable assurance at this stage of the application process that it has provided sufficient information for the Arbitration Panel to determine that the condition subsequent meets the reasonable assurance test.

19. Determining the degree of specificity required to meet the reasonable assurances test for conditions subsequent to permit issuance can be a difficult process. The difficulties are illustrated through comparison of Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644 (Fla. 3d DCA 1992), with Save Anna Maria, Inc., v. Department of Transportation, 700 So. 2d 113 (Fla. 2d DCA 1997).

20. In Coscan, the court reversed a dredge and fill permit issuance for a marina because the permitting agency, DER (predecessor to FDEP), did not adequately analyze the likely anticipated effects of the proposed project, and in particular whether the permit applicant had provided reasonable assurance that water quality standards would be met. The agency instead relied upon an agreement it had with the applicant in which the applicant promised to correct adverse impacts if they occurred, but without the applicant’s being able to demonstrate with substantial likelihood that project construction or subsequent corrective measures could in fact be successfully implemented. The court rejected the deferral of the determination as not meeting the reasonable assurance test.

21. In Save Anna Maria, the court found permissible the applicant’s demonstration that its mitigation plan would meet the reasonable assurance test, notwithstanding the fact that its success was based upon future monitoring. The court concluded that the monitoring plan, along with contingent corrective actions if the mitigation being monitored was not successful, were sufficiently detailed to meet the reasonable assurance test. The court distinguished Coscan as a case in which the agency had "deferred to a future date a determination of whether reasonable assurance had been provided." 700 So. 2d at 117.

22. The standard to apply, therefore, is whether reasonable assurance has been provided, or whether it has been "deferred to a future date." The Arbitration Panel will evaluate the issues raised by Petitioners based upon these criteria. A related issue is the degree of detail that a permit application must have in order to meet the reasonable assurance test. On that issue, a useful comparison to Coscan is Hamilton County Bd. of County Commissioners v. State Dept. of Environmental Regulation, 587 So. 2d 1378 (Fla. 1st DCA 1991). In Hamilton, petitioner challenged a DER permit issuance on the grounds that the applicant failed to provide DER with sufficient engineering reports and design details on the proposed facility. The applicant instead provided general information about engineering details in the application, and at hearing also presented testimony from a professional engineer expert on the subject matter on how the specific pollution abatement equipment could be installed and was designed to work. The court concluded that DER "was entitled to issue the construction permits subject to [the condition that the expert oversee construction] to insure that the facility would be constructed in compliance with the applicable rules." Id. at 1389. The court went on to cite to Kralik v. Dept. of Environmental Regulation, 11 FALR 669 (DER 1989), affirmed without opinion, Decker v. Dept. of Environmental Regulation, 545 So.2d 882 (Fla. 5th DCA 1989), for the proposition that DER could issue permits that provide for submission of engineering plans for a component of a project at a later date, provided there was evidence as part of the application that such component "could be designed, installed and operated in a manner to ensure [compliance] with water quality standards." Id.

23. Applying the case law to the Joint Application, the Arbitration Panel concludes that in some instances, TBW is requesting that the Arbitration Panel accept TBW’s invitation to defer its reasonable assurance determination to another date, contrary to Coscan, but in other situations Petitioners are asking more of TBW than the reasonable assurance standard requires prior to permit issuance. Therefore, as detailed and for the reasons stated below, the Arbitration Panel has concluded that the Joint Application meets the reasonable assurance standard in some instances but in others an amendment is required.

Water Quality Compliance

24. Pertinent to the issue of whether TBW has provided reasonable assurance that its Joint Application complies with Applicable Substantive Law are the following:
(a) Section 403.088, Florida Statutes, which prohibits any person, without FDEP authorization, from discharging into waters within the state any waste which reduces the quality of the receiving waters.
(b) The general permitting requirements for ERPs contained in Section 373.414, Florida Statutes, and in particular requirements that the activity will not be harmful to the water resources or will not be inconsistent with the overall objectives of the SWFWMD, will not violate water quality and will not be contrary to the public interest.
(c) The requirements of the following subsections of Rule 40D-4.301(1), F.A.C., which requires a permit applicant to provide reasonable assurance that construction, alteration, operation, maintenance, removal or abandonment of a surface water management system (i.e., the Proposed Reservoir and appurtenances):
(1) Rule 40D-4.301(1)(d), F.A.C., will not adversely impact the value of functions provided to fish and wildlife, and listed species, by wetlands, other surface waters, and other water related resources of the SWFWMD;
(2) Rule 40D-4.301(1)(e), F.A.C., will not adversely affect the quality of receiving waters; and
(3) Rule 40D-4.301(1)(f), F.A.C., will not cause adverse secondary impacts to the water resources.
(d) State surface water quality standards for copper established in Rule 62-302.530, F.A.C., and groundwater quality standards found in Rule 62-520.420, F.A.C., which incorporates by reference Rule 62-550.320, Table 4, Secondary Drinking Water Standards.
(e) 33 C.F.R. §320.4(d), which requires dredge and fill permits to comply with water quality standards.

25. TBW has provided reasonable assurance that application of copper sulfate will not result in a violation of state water quality standards. In this regard, therefore, the Joint Application meets Applicable Substantive Law relating to water quality issues raised by Petitioners.

26. Petitioners’ concerns have focused on the potential adverse impacts of copper if and when it might be transported through leakance out of the Proposed Reservoir and into adjacent groundwater and surface waters. Petitioners have therefore requested a ruling from the Arbitration Panel that the Proposed Reservoir should not be permitted unless TBW first performs a fate and transport analysis. Petitioners have not, however, presented any persuasive evidence that copper would become soluble again and travel to adjacent groundwater and surface waters; and even if it does, that the transport would occur in quantities sufficient to establish a violation of water quality standards. Furthermore, Petitioners have not provided any persuasive evidence that even if copper transport did occur, such transport would result in a violation of water quality standards for copper outside of the waters of the Proposed Reservoir.

27. As stated, for example, in Sheridan v. Deep Lagoon Boat Club and Department of Environmental Protection, DOAH Case No. 99-2234, 2000 Fla. ENV LEXIS 52, 00 ER FALR 118, 22 FALR 2358, 2387 (DEP 2000), "Applicant's reasonable assurances must take into account objections of opponents and deal with reasonably foreseeable contingencies. Opponents must do more than simply raise ‘concerns’ or speculation about what ‘might’ occur. See Chipola Basin Protective Group, Inc. v. Dept. of Environmental Reg., 11 FALR 467, 480-81 (DER 1988)."

28. Furthermore, it is not sufficient, from the standpoint of making a reasonable assurance determination, that there may simply be "adverse impacts" resulting from copper transport. There must, instead, be a determination that the transport will result in a violation of state water quality standards. As stated in Peebles v. Department of Environmental Regulation, DOAH Case No. 89-3725, 1990 Fla. ENV LEXIS 70, 12 FALR 1961, 1965 (DER 1989), "To the extent the Hearing Officer's finding implies that the project will impair water quality, such a finding cannot affect the outcome of this case because impairment of water quality is not a proper legal criterion for deciding whether to grant or deny the permit."

29. Rule 40D-4.301(1)(e), F.A.C., referenced above, which requires an applicant to demonstrate that the proposed project will not adversely affect the quality of receiving waters, cross references numeric state surface water quality standards for copper, which can be found in Rule 62-302.530, F.A.C.; and groundwater standards for copper found in Rule 62-520.420, F.A.C., which in turn incorporates by reference Rule 62-550.320, Table 4, Secondary Drinking Water Standards. Petitioners have neither alleged nor proven that these numeric standards are reasonably expected to be violated as a result of construction or operation of the Proposed Reservoir.

30. The Arbitration Panel is concerned, however, that the evidence does show a potential problem in the event the use of copper sulfate is wholly unregulated and the application of it abused.

31. TBW responds to these concerns by citing to Appendix K, 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, TBW has presented no evidence as to the scope of such permit – i.e., whether it regulates the amount of usage, whether it requires any monitoring, or whatever. Nor did any party point the Arbitration Panel to any aspect of the Applicable Substantive Law that imposes any relevant regulatory requirements upon such a permit or any other governmental controls over application of chemicals into the Proposed Reservoir.

32. The Arbitration Panel concludes, therefore, that mere cross reference to the Hillsborough County Health Department permitting procedures is insufficient by itself to foreclose any further inquiry as to possible adverse impacts of chemical application under any set of circumstances. Given the lack of information with regard to how the application of copper sulfate will be regulated, the Panel concludes that it would be prudent for TBW to commit to include copper as a constituent for which TBW will monitor as part of its groundwater quality monitoring regime, in order to determine whether concentrations of copper are exceeding water quality standards or are increasing at levels that would appear to indicate that water quality standards might be violated in the future.

33. Given the speculative nature of the likelihood of future exceedences, the Arbitration Panel does not find it necessary that the Joint Application be amended to require TBW to provide any specific measures if the monitoring shows a reasonable likelihood of water quality exceedences, but only to include a commitment by TBW to undertake such measures in such an event.

Water Quantity Monitoring and Management

34. Among the Applicable Substantive Law pertinent to this specific issue are the following:
(a) The general permitting requirements for ERPs contained in Section 373.414, Florida Statutes, and in particular requirements that the activity will not be harmful to the water resources or will not be inconsistent with the overall objectives of the SWFWMD, will not violate water quality and will not be contrary to the public interest.
(b) The general permitting requirements under Section 404 of the Clean Water Act, 33 U.S.C. §1344, for discharge of dredged or fill material into navigable waters.
(c) The requirements of the following subsections of Rule 40D-4.301(1), F.A.C., which requires a permit applicant to provide reasonable assurance that construction, alteration, operation, maintenance, removal or abandonment of a surface water management system (i.e., the Proposed Reservoir and appurtenances):
(1) Rule 40D-4.301(1)(a), F.A.C., will not cause adverse water quantity impacts to receiving waters and adjacent streams;
(2) Rule 40D-4.301(1)(b), F.A.C., will not cause adverse flooding to on-site or off-site property;
(3) Rule 40D-4.301(1)(c), F.A.C., will not cause adverse impacts to existing surface water storage and conveyance capabilities;
(4) Rule 40D-4.301(1)(d), F.A.C., will not adversely impact the value of functions provided to fish and wildlife, and listed species, by wetlands, other surface waters, and other water related resources of the SWFWMD;
(5) Rule 40D-4.301(1)(e), F.A.C., will not adversely affect the quality of receiving waters;
(6) Rule 40D-4.301(1)(f), F.A.C., will not cause adverse secondary impacts to the water resources;
(7) Rule 40D-4.301(1)(g), F.A.C., will not adversely impact the maintenance of surface or ground water levels; and
(8) Rule 40D-4.301(1)(i), F.A.C., is capable of being effectively performed and of functioning as proposed.
(d) The requirements of Rule 40D-4.302(1), F.A.C. which requires a permit applicant to provide reasonable assurance that construction, alteration, operation, maintenance, removal or abandonment of a surface water management system (i.e., the Proposed Reservoir and appurtenances) will not be contrary to the public interest, as determined by balancing criteria including the following:
(1) Rule 40D-4.302(1)(a)1., F.A.C., adversely affecting the public health, safety or welfare or the property of others;
(2) Rule 40D-4.302(1)(a)2., F.A.C., adversely affecting the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
(3) Rule 40D-4.302(1)(a)5., F.A.C., whether the activity will be of a temporary or permanent nature; and
(4) Rule 40D-4.302(1)(a)7., F.A.C., the current condition and relative value of functions being performed by areas affected by the proposed activity.
(e) The requirements of the Basis of Review ("BOR"), incorporated by reference in Rules 40D-4.301 & 302, F.A.C., which restate and further explain those rules. Particularly pertinent is ERP BOR Section 3.2.2.4, which requires an applicant to provide reasonable assurance that the activity will not change the hydroperiod of a wetland or other surface water so as to adversely affect wetland functions or other surface water functions, including situations where activities that have the potential to increase discharge or water levels will not affect the functioning of the specific wetland or other surface water subject to the increased discharge or water level. Section 3.2.2.4 also requires that where water levels may be altered, the applicant is required "to monitor the wetland or other surface waters to demonstrate that such alteration has not resulted in adverse impacts, or to calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions." Also pertinent is BOR Section 3.3, which establishes criteria for mitigation.
(f) Federal regulations implementing the Clean Water Act, including 33 C.F.R. §320.4(a)(1), the federal public interest test; and 33 C.F.R. §320.4(g), which prohibits injury to the property of others.

35. As to that portion of the Joint Application that addresses potential impacts of leakance from the Proposed Reservoir to wetlands and the property of others adjacent to the Proposed Reservoir site, the Arbitration Panel holds that TBW has failed to provide reasonable assurance that the Joint Application complies with the above-listed Applicable Substantive Law.

36. The reason for the failure is that the monitoring and management plans proposed by TBW in the Joint Application to address the potential adverse impacts of leakance from the Proposed Reservoir are not yet complete, and so the Panel does not have sufficient information at this time to determine whether the plans are adequate to offset potential adverse impacts to the adjacent wetland systems and the species that rely on those systems. In the words of Save Anna Maria, TBW has "deferred to a future date a determination of whether reasonable assurance had been provided." 700 So. 2d at 117.

37. By its own admission, TBW has not yet provided necessary baseline data to determine, from the onset, what are the existing conditions upon which any adverse environmental impacts can be measured. Without such baseline data the FDEP would be "unable to make an informed analysis or to reach the conclusion that [the applicant] had provided reasonable assurance" of compliance with Applicable Substantive Law. Id. at 118. While TBW has committed to developing a management plan designed to prevent such adverse impacts from occurring, that commitment is insufficient at this point in the permit application process, because there is no baseline to determine what are the adverse impacts, as well as insufficient details to describe the specific management efforts that will be undertaken to avoid those impacts.

38. In reaching this conclusion, the Panel has also taken into consideration Florida Power Corporation v. Department of Environmental Regulation, 638 So. 2d 545 (Fla. 1st DCA 1994). In that case the DER Secretary rejected an ALJ’s recommendation that in turn was contrary to the DER’s original decision to deny a permit because the applicant had declined to offer mitigation for the destruction of six acres of forested wetlands. The applicant had argued that those six acres were replaced by six acres of equally (if not more) valuable herbaceous wetlands, and that at any rate the trees would eventually grow back.

39. The court in Florida Power upheld the Secretary’s rejection of the ALJ’s recommendation based upon the Secretary’s conclusion that forested wetlands were not environmentally equivalent to herbaceous wetlands, and her rejection of the ALJ’s conclusion that "in general one type of wetland may be replaced with another with no adverse impact." Id. at 559. Florida Power illustrates the importance here in obtaining baseline data regarding wetlands that may be impacted by the Proposed Reservoir. Since the FDEP, as a matter of policy, has determined that wetland systems are not interchangeable, any wetlands that may be adversely impacted by the project must be evaluated prior to such potential impact, in order to better understand what that impact might be. Such an evaluation is particularly important where the evidence demonstrates, as here, that impacts such as stress from hydroperiod changes may not readily be determined until after adverse impacts have already occurred.

40. The baseline conditions are important not only for understanding the extent of potential impacts to the existing wetland system, but also for determining what kind of mitigation may be needed in the event that the impacts are adverse, the maintenance plan is unsuccessful in whole or in part, and the remaining adverse impacts must therefore be offset by mitigation. The baseline assessment is needed here, therefore, so that TBW can develop a backup mitigation plan to compensate for any adverse impacts that cannot be completely remedied through the management plan.

41. The Applicable Substantive Law for developing such a mitigation plan can be found in the BOR. Under the BOR, Section 3.3, "Protection of wetlands and other surface waters is preferred to destruction and mitigation . . . . Applicants are encouraged to consult with District staff in pre-application conferences or during the application process to identity appropriate mitigation options." Section 3.3.1.1 states, "In general, mitigation is best accomplished through creation, restoration, enhancement, or preservation of ecological communities similar to those being impacted." The BOR goes on to explain the process for identifying appropriate mitigation sites and strategies, and presenting mitigation proposals to the permitting agency.

42. Both the Florida Power holding and the BOR mitigation rules show that the analysis for wetland impacts is somewhat different from that for reviewing adverse impacts to water quality. As noted in the discussion on Issue 1, the adverse impact determination as to water quality involves determining whether numeric water quality standards have been violated. With wetlands, however, the inquiry is qualitative as well as quantitative, looking at whether the impacts will change the historic ecological community. "Mitigation involving other ecological communities is acceptable if impacts are offset and the applicant demonstrates that greater improvement in ecological value will result." BOR §3.3.1.1.

43. In its application and in testimony at trial, TBW has been candid in acknowledging
the need to provide DEP more information, as part of the permitting process, with regard to background conditions at the potentially impacted areas, as well as monitoring and management plans for addressing those adverse impacts. TBW argues that the Joint Application, nonetheless, meets the reasonable assurance standard because TBW would otherwise be held to an impossible burden to "prove now that which cannot reasonably be proven until a point later in the application process." TBW’s Proposed Arbitration Award, p. 36 (emphasis in original).

44. In a sense, TBW is between a rock and a hard place. The rock is the need, acknowledged by TBW’s consultants at trial, to await providing more extensive information on impacts and potential mitigation until FDEP has had the opportunity to review the application and issue its completeness comments. The hard place is the fact that while TBW is going through the normal give and take of permit application review, there is a parallel arbitration proceeding at which the adequacy of the Joint Application is being evaluated based upon the adequacy of proposals that, at least to some degree, are still being developed with the permitting agency.

45. Petitioners, however, suffer from a similar quandary. On the one hand, they have contracted away their rights to challenge a permit through the Chapter 120, Florida Statutes, process. On the other, they instead enter into an arbitration process without fully knowing what conditions the permit will ultimately include.

46. Under the 1998 Interlocal Agreement, the Arbitration Panel must determine under Section 3.13 whether the Joint Application meets all Applicable Substantive Law. If the Arbitration Panel does not determine that it does, then TBW can either amend or withdraw the application. While the Arbitration Panel cannot dictate to TBW which way to go in the event that any portion of the Joint Application does not meet Applicable Substantive Law, it at least can provide explanation to its decision, and in so doing provide guidance to TBW as to whether the Joint Application’s limitations can be corrected through amendment or whether the Joint Application is more seriously deficient.

47. The Arbitration Panel is providing a detailed explanation of its reasons for determining that certain aspects of the Joint Application do not meet the Applicable Substantive Law in order to facilitate TBW’s decision as to how to respond to the Arbitration Panel’s determination, as well as to assist Petitioners in deciding whether or to what extent they should challenge an amended application, should TBW decide to amend. Hopefully this explanation will help, at least to some degree, address the quandaries of the parties noted by the Arbitration Panel.

48. Set forth in the "Award" section of this arbitration award are the Arbitration Panel’s rulings regarding what should be included in an amended application.

Embankment Stability and Safety

49. TBW must provide reasonable assurance that the Proposed Reservoir:
(a) Complies with Rule 40D-4.301(1)(b), F.A.C., in that it will not cause adverse flooding to on-site or off-site property;
(b) Complies with Rule 40D-4.301(1)(i), F.A.C., in that it must be "...capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed;"
(c) Complies with Rule 40D-4.302(1)(a), F.A.C., which requires the public interest balancing of a number of factors including public health, safety and welfare;
(d) Complies with the public interest review, including the public health, safety and welfare considerations of 33 C.F.R. § 320.4(a) & (k); and
(e) Complies with Section 373.414, Florida Statutes, which requires a determination that the activity to be permitted is not contrary to the public interest.

50. This Applicable Substantive Law relates to the issue of embankment stability and safety, and is evaluated in the context of: considering and balancing public interest criteria, whether the Proposed Reservoir will cause flooding to off-site or on-site property, and whether it is capable of functioning and performing as proposed. Competent, substantial evidence based on detailed site plans and engineering studies, coupled with credible expert engineering testimony, is a sufficient basis for a finding of reasonable assurance. Hamilton County Board of County Commissioners v. FDEP, 587 So. 2d 1378 (Fla. 1st DCA 1991). TBW has presented competent and substantial evidence in the form of site plans, maps, extensive geologic and hydrogeologic studies and reports, as well as the testimony of credible expert witnesses. Thus, TBW has adequately addressed all relevant stability issues, including site geology and foundation soil composition, overall embankment stability, applicable drawdown criteria, factors of safety, and embankment erosion protection. After evaluating all of the Arbitration Hearing Evidence, TBW has provided reasonable assurance that the embankment design for the Proposed Reservoir will result in an embankment that is stable.

51. In balancing the public interest considerations, the Panel has also considered a number of other matters that weigh in favor of determining that there is the requisite reasonable assurance. First , the arbitration panel has considered the public interest to be served, that is, the need for water to be supplied by the Proposed Reservoir. Additionally, the permit would not become effective (i.e., TBW will not be allowed to fill/operate the Reservoir) until: (1) a registered professional engineer certifies compliance in writing, and (2) the FDEP has inspected the system for compliance. Rule 62-343.110(1)(d), F.A.C. By that time, the project would have already been inspected periodically by the FDEP during construction, and would continue to be inspected by the FDEP after operation commenced, pursuant to Section 373.423, Florida Statutes. If, at any time, the FDEP finds that work is not being done in accordance with plans and specifications, immediate compliance can be required. See Sections 373.423, 373.436 and 373.439, Florida Statutes. Finally, TBW has committed to an operation and maintenance plan to ensure that the Proposed Reservoir will be operated and maintained as designed.

52. Therefore, this Arbitration Panel concludes from an embankment stability and design standpoint, that TBW has provided reasonable assurance, based on the Arbitration Hearing Evidence, that the Proposed Reservoir complies with the Applicable Substantive Law.

Dam Breach Analysis, Inundation Mapping and Emergency Action Plan

53. Petitioners contend that the Joint Application fails to provide reasonable assurance that the public health, safety and welfare have been adequately protected because, among other reasons, the Joint Application does not include a dam breach analysis, inundation mapping, or an adequate EAP. Petitioners conducted their own dam breach analysis and produced associated inundation maps. The Petitioners’ dam breach analysis, however, assumed that a breach will occur without regard to an analysis of the Proposed Reservoir design, and further assumed that the breach will occur at specified locations. The Petitioners conducted no probability analysis as to the likelihood of a breach occurring at the modeled locations, or at all. Moreover, this Arbitration Panel has found that, from an emergency planning standpoint, there was no evidence that the Proposed Reservoir should be redesigned or moved, or that any roads or bridges in the vicinity required design changes.

54. Petitioners’ dam breach analysis modeling, associated mapping and the modeled results represent only a mathematical prediction of a "possible " result rather than a probable or realistic one. While Petitioners’ modeling may be a useful starting point for contingency planning purposes, it was found to contain limitations relating to assumptions and input parameters.

55. TBW has provided reasonable assurance that off-site flooding and any resulting adverse effects to public health, safety, or welfare should not reasonably be expected to occur. TBW chose not to include a dam breach analysis, inundation mapping, or a finalized EAP as part of the Arbitration Hearing Evidence in this case. However, the public health, safety and welfare issue is a rather broad one with little specificity in the Applicable Substantive Law. In this case, the evidence has shown that the Wendel Avenue residents are the closest neighbors to the proposed embankment. A permit applicant is required only to provide reasonable assurance, not absolute guarantees regarding a proposed facility. It is common sense and many of the experts in this case testified that anything is possible. Thus, it is within the realm of possibility that there could be a breach at the SE corner that would impact the Wendel Avenue residents. Preparation of an EAP is an appropriate public interest consideration and necessary to protect the public health, safety and welfare.

56. TBW has been developing an EAP as evidenced by the fact that a draft is in the Joint Application, and that Mr. Gispert reviewed and commented on it. Moreover, considerable work on a dam breach analysis and inundation mapping has been initiated by Petitioners. TBW plans to submit inundation mapping and a dam break analysis to the FDEP as part of the permitting procedure as soon as its staff can meet again with the FDEP staff and further clarify the modeling scenarios that FDEP proposed.

57. In the normal course of permitting, some details of a proposed project can only be developed as the permit process unfolds and pursuant to the permit conditions even after the permit is issued. This is especially the case in situations where to provide the details at an early stage would not serve the purpose of compliance with the Applicable Substantive Law. The Arbitration Panel has found that an EAP needs to be timely to be effective and an EAP done too soon could be outdated by the time the Proposed Reservoir becomes operational. These types of details are in the nature of conditions subsequent. Therefore, the Arbitration Panel makes the following rulings with regard to the issue of a dam breach analysis, inundation mapping and the EAP:
(a) Based on the weight of the Arbitration Hearing Evidence related to embankment design and stability, the Proposed Reservoir should reasonably be expected to function and perform as proposed, not cause on-site or off-site flooding, not be contrary to the public interest, and not cause adverse impacts to the public health, safety, or welfare.
(b) The dam breach analyses and inundation mapping may be useful planning tools for developing an EAP and implementation of an EAP is a necessary public interest consideration for the Proposed Reservoir not to cause adverse impacts to the public health, safety and welfare.
(c) To be helpful to emergency planners and persons that may be affected, an EAP should be completed and implemented prior to placing the Proposed Reservoir into operation, i.e., prior to storing water.
(d) Applicable Substantive Law does not compel the need for an EAP to be implemented until sometime before the Proposed Reservoir begins to receive water and does not require completion of an EAP at this time.
(e) The EAP is an organic document that should be updated as circumstances, agency contacts and other matters related to emergency planning, the Proposed Reservoir and vicinity, change.
(f) The design parameters for the EAP proposed in the Joint Application by TBW comply with the Applicable Substantive Law.

AWARD

Based upon the foregoing Findings of Fact and Conclusions of Law, the Arbitration Panel issues the following Award:
A. TBW has provided reasonable assurance that the Joint Application meets all Applicable Substantive Law as to those aspects of the Joint Application that Petitioners have challenged, except as otherwise provided in this Award.
B. In order for TBW to provide reasonable assurance that the Joint Application meets all Applicable Substantive Law as to potential adverse impacts associated with seepage of waters from the Proposed Reservoir into surrounding groundwater and surface waters, TBW must amend its application in the following manner and as further explained in the foregoing Findings of Fact and Conclusions of Law:

(1) TBW shall develop baseline data regarding the wetlands that may be impacted by the seepage. This baseline data shall assume the possibility of groundwater push up from leakance of a foot or more up to 4,000 feet away from the embankment of the Proposed Reservoir, assuming the water level is at full pool, unless TBW provides more detailed modeling, beyond that currently available, that shows the push up distance to be different.
(2) The baseline data shall include a characterization and quantification of the wetland systems that currently exist within this area, as well as the hydrologic regime that supports those systems. The characterization shall include the use of transects as identified in Section 5.3.1 of Appendix D to the Joint Application, as well as an identification of groundwater levels and hydroperiods within the affected wetlands.
(3) The baseline data shall also include information about wells and septic systems in the Wendel Avenue area that are within 4,000 feet of the embankment of the Proposed Reservoir, as to locations and, if available, depths of the wells and septic tanks.
(4) For those areas in the East Pruitt mitigation site that are within 4,000 feet of the embankment of the Proposed Reservoir and are planned to be used as mitigation for impacts to wetlands from construction of the Proposed Reservoir, TBW shall develop mitigation plans that are sufficiently detailed as to comply with the requirements of Section 3.3 of the Basis of Review.
(5) Along with the development of the baseline data, TBW shall include a monitoring plan containing locations, devices, sampling frequencies and methodologies necessary to monitor the baseline conditions established. TBW shall specify how the monitoring plan will detect seepage, the level of impact at which detection occurs, and the level of impact considered adverse based on Applicable Substantive Law.
(6) TBW shall amend its management plan to demonstrate how it will manage changes to the wetland hydroperiod from normal baseline, demonstrate the feasibility and effectiveness of such a plan for maintaining the viability of the water resources outside the footprint of the Proposed Reservoir (including wetlands and streams), and integrate the management plan and the monitoring plan to demonstrate that management can and will be initiated before adverse impacts occur to the wetlands ecology or to wetlands mitigation projects proposed to offset direct impacts resulting from construction.
(7) Remedial methods shall be delineated by type, location, procedure for controlling the effects of remediation, disposal strategies for water withdrawn to offset elevated levels, and sources of water for supplementing levels if water level reductions occur.
(8) The management plan shall also document how TBW intends to manage the water levels and hydroperiod needed to maintain the existing wetland system, the types of wells to be used to maintain those levels, and the general location and depths of such wells. The management plan shall be integrated with the plans for mitigation at the East Pruitt mitigation site so that the East Pruitt mitigation can be successfully established and maintained. Finally, the management plan shall include monitoring of water levels, so that the potential for adverse impacts of leakance on adjacent wetlands and wells and septic tanks of the Wendel Avenue residents can reasonably be anticipated.
(9) TBW shall commit to having backup contingency plans in the event that the management plan is unsuccessful in reaching any of its objectives. The contingency plans need not be specified at this time other than in very general terms, with the further understanding that any such contingency plans will be developed in coordination with the responsible agencies.

C. In addition to requiring the foregoing amendments to the Joint Application, the Arbitration Panel has found that the following actions should be performed, at the time specified below, but do not require an amendment to the Joint Application for reasons stated in the Findings of Fact and Conclusions of Law:

(1) Water quality monitoring for copper around the perimeter of the Proposed Reservoir shall be initiated no later than at the time TBW begins to use copper sulfate as an algaecide in the Proposed Reservoir.
(2) An EAP shall be completed and implemented no later than when water starts to be stored in the Proposed Reservoir, and be revised on an annual basis, or sooner if necessary, based on FEMA guidelines and the FLDWAV Analysis Methodology described in Appendix A to Attachment L.2 to Appendix L (Emergency Action Plan Overview) to the Joint Application. In considering FLDWAV modeling scenarios, the Arbitration Panel encourages TBW to take into consideration the inundation mapping modeling that has already been performed by Petitioners’ experts.

DATED this 15th day of May, 2001.

By_________________________________
CARLOS ALVAREZ
Chair, Arbitration Panel
DANIEL P. FERNANDEZ DANIEL H. THOMPSON

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