Title: Groundwater Protection: Industry/Development Perspective
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000722/00001
 Material Information
Title: Groundwater Protection: Industry/Development Perspective
Physical Description: Book
Language: English
Publisher: Florida Association for Water Quality Control
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Groundwater Protection: Industry/Development Perspective, May 19, 1986
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 115
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000722
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

May 19. 19i6

Groundwater Protection: Induitrv/lDyelC ment Perspective
L. 4. uaddy llain
slaina Cone, P.A.

Ny topic As the effect of the proposed -I rule on the
private sector. The proposed G-I rule 1i drastically
different froe the letter and sprit of the exllting
groundwater protection rule.

DR began its groundwater classification progreeo n 1979.
Groundwater ws classified as Clas I-f-, for potable aad
agricultural use, or Class V-8. for utility and industrial
use. The 1979 rules reflected the comon la standard of
uwter pollution, which basically uas a good neighbor*
standard. Groundwater for potable or agricultural us bhad
to met primary drinking water standards at the discharger's
property boundary. The groundwater under the discharger's
property simply had to be free free ubatances harmful or
dangerous to humans or certain plants or animals.

TIhe nviromental Regulation ComissiOn established a
Groundwater Quality Task Force to study wether the 1979

rules should be mended. It wa felt that the 1979 rules
were not strong enough. MOrkshops were held throughout
1912, and an August 1982, the RBC adopted revisions which
took effect January 1983.

The 1183 rule as basically the current G-I rule. with the
1983 rule. DCR began to move away from the "good neighbor'
comon law tradition, and began to move toward what appears
to be today's goal of a huge underground reservoir of
crystal pure drinking ater.

The 1913 rule set up a Mechanisl for any substantially
affected person to petition for rulemaking to designate
certain groundwater as the only source of potable water for
a significant segment of the population. There is no sone
of discharge for such a "single source' G-I aquifer, so all
dischrges osut meet primary, or health-related, drinking
wter standards nd secondary, or esthetic, drinking vater
standards nd be tree from contaminants dangerous to humn
health ... at the point of discharge and everywhere elso.

TM 1903 revnisons also designated most of Florida's

groundwater s-Class G-lI drinking water. In Class G-II
eaters, the "good neighDor" concept was eroded the boundary
of the sone of discharge as the mller otf 100 feet from
the site of discharge, or the property boundary. Discharges

to Class G-Il groundwater oast met primary and secondery
drinking ster standards outside the sonm of discharge ...
bwich could be with the discharger' overlying land.

Since 193, G-1 petition have been filed for the Surflcir l
and Floridan qaifters of the Middle Gulf Sydrologic Systes

which is part of einalla, Mill"borough, Peasc, lreonndo,
and Citrus Countiess for the surftical aquifers in a portion
of rlagler County and for a portion of the loridan aquifer
in a portion of Marion County. In response to all
petitions, DE tlnformed the applicants tht additional
ntformatlon was ncessary. Only the Mddle Gulf petition
was Ultimately accepted.

This year, DER began the rulmaking process for a more
restrictive G-I rule. Others have been several draft of the
rule each more colicated than the other, and each
requiring a greet deal of study to understand even
superficially. lsically, the proposed rule mouldi 11a
change the procedure by which an aquifer is designated as
G-lI ib) broaden the lasses of aquifers eligible for G-I
tatusl and i() restrict greatly the typos of discharges
allowed Into GC1 aquifers.

Th final workshop eas held Nay S. in Orlando. It wa
reported that 260 ltterested persons attended the moetig.

he following groups have filed challenges to the proposed
rule the Florida Phosphate Coouncll Waste Malugemnt of
Florldal a private developer the Alliance for Rational
Groundwater Rules, the Florida electric Paer Coordination
Group; and the Florida Home builders Association, Florida
Association of Realtors, and the Ploride LeIaue of Cities.
The diversity of the group* challenging the rule indicates
the diversity of problem vWth the rule.

1. Two of the problems with the proposed rule relate to
changes in the G-I d*esgnaion procedure, and the
discharge permit process.

The proposed rule would change substantially the method
by which an aquifer is designated sa GC-. Under the
istino rule, say substantially affected person or water
management district can file a petition to initlste
rulemakin to designate groundwter as G-I. G-I
petitions are handled under the rules of aedmanitrtla"
procedure. which require development of facts and which
ultimutely allow interested parties to intervne and
oppose. There A an opportunity for an interested
private porty to submit testimony under eoth nd evidence
on the question of whether G-I status is appropriate.
Under the proposed rule, the navicnlrntal Regulation


Commisson and DEl vould control a groat deal of the
process and, basically. would establish a 'prelsuption

of G-l status. Under the proposed rule, DIE would "map
the middle Gulf area. The -ppingO would identify high
recharge areas. It *lso would determine the aquifer
characteristics necessary to establish public wvter
supply wells or wellfield ones of protection, which are
based on 1fiv years and tn years of groundwater travel
time under maxismu permitted pumping conditions. The
umpping eight also include determination of the S-foot
drawdown contour for public water supply wells or

The USGS has submitted a proposal for the middle Gulf
Mapping. The USGS proposal includes assistance to DOR in
Its task of *ranking the rost of the state to determine

which areas should be *"mpped" sat. The proposed rule
requires that DER *rank* the state based on these
factors: aquifer characteristicas aquifer vulnerability
to pollution population dependency on the aquifers; nd
the availability of alternative sources of drinking
water. After an area has been mapped by DIO, it Would
be eligible- or G-I designation through rulemaskng.

the problem with the proposed *aapplng-' mad rankingg

procedure is that it eliinates participation by

Interested persons in the crucial, early fact-finding

stages. Once the area has been capped by DeR. the
likelihood is that the tnvironmental Regulation
Commission would consider the aspping pr*esuptlvely
correct, and attempts to rebut the findings of USGS or
DCR would be unsuccessful. Por example, during the

espping. DOR would set the 5 year and 10 yar travel tim
boundaries the zones of protection for a particular
wellfield. The area then is reedy for G-I designation.
A G-1 opponent would be faced with a determination by
USGS and DER that naY discharge vwi travel to the
wellfeld within 5 years wilh no opportunity to submit
contrary evidence or testimony.

The proposed designation method also eliminates four
factors that currently must be evaluated for G-I status

(a) whether other sources of potable water could be used
and the cost of developing those sources (bl the long
tern adequacy of the aquifer to supply expected future
demands It other sources are not developed; (c) potential
adverse effects from continued consumption of rter froe
the aquifer it G-1 classification does not occur and Id)
potential adverse ipacts on existing end potential

Alscharges to the affected grounduwter if G-I
classuilcation occurs. The proposal to eliminate these
factors indicates a Orsution that ay groundwster,

which iA mo, or In the future my be. uoed for drinking
wuter, bould be designated ao G-l reardle of the cost
and the need. This would be a change for the worse.

The scond procedural Offect of the proposed rule
involves what could happen when a mw or existing

discharger applies for a permit. Depending upon the
strength and reliability of 0A's *mapping and Its
designation of wells nd wollfield Sones of protection,
every discharge application could bheroe on expensive
administrative proceeding. he well or wellfleld owner

or opeortor would oppose the application, claiming the
discharge will be within the soe of protection. he
applicant would have the Incredibly eapelIve burden of
proving that its discharge is o within the Sone of
protection, or is not within the S-foot drawdown contour.

this problem it likely to occur an mapping and ranking
proceed forward even If the actual 0-I designation logs
far behind. his will cause Incredlble eponse and

Again depending upon the strength and rellabillty of the
mapplng, there could be a collateral result. The apping
Results could spamw lwvsuits for damages or njunctive
relief against alleged groundwater polluters. tSoe cses

For UeWple, the Pirlt District Court of Appel recently
reversed DI'i decision to grant Mobil wter discharge
permits for its South Port Meade phosphate ins. Based
on a challenge by Booker Creek reservation, the Court

stated that obil bad not provided reasonable assurances

that there were no sub-surface aeao lies which eight

allow Dosporsion of polluted water. T re were three
dischrges, froe three settling and storage ponda, all
located on the see mine site. loblls' testing at one of
tlh discharge points showed that Sarst features sight
exist beneath that pond, but geologic surveys reveled no
uch faults and ave no Indication that water seeping out
of that pond would flow into the lowr aquitlrs.
however. Mobil didn't perform any tests to determine

whether Karst features might eist beneath the other two
discharge points. This was the basis for the court's
ruling *larst features xit beneath the proposed
discharge ar0s, end ... iU rnt, such faults 0Lnt
allow much wider and more rapid disperlson of pollutants
than Mobil bas predicted'. mooker Creek Preservation.
Inc. v. Mobil Comn.ny. 401 So.2d 10 (lot DCA 1i51)

(mph sls added). he Second District Court of Appeals
has taken o similar *bets and suspenders stanc toward
groundwater pollution. In 1183, the court upheld a
Pilnllas County trial court's finding that the Martin
brothers' Billborough County landfill was a clear.

\3 5

present and imrnent danger to Pinellas County's
Ildridge-Wilde wiltield. The trial court's order for
clean-up of the landfill was basd on "a course of safety

and ecological eonsarvatis" and the *poeaible, indeed
the probable effectsO of substances found to be
contaminants. Martin v. Panellas County, 444 So.2d 439

13d DCA 1983). The ambitious *mappaig program contained
in the proposed rule would result in readily available
hydrologic data that could affect the course of Siollar

2. The proposed rule could have a dramatic effect on growth
nd waste inagement in counties. such as i llaborough,
that already are struggling to met both the requirements
of Do and th needs of increased population. The
Millsborough County Utilities staff recently developed a
$250 million five-year wastewater treatment ioprovemnt
plan, to nmet the county's growing ewer meeds and its
existing deficiencies. The County plans to. expend and
improve four existing wastewater tretment plants
construct five Saw westeater treatment plants and two
new regional sludge handling facilities, develop and
construct wsatevater reuse sysetes and expand and
provee wastewater collection and transiession systems.
the 1986 plan follows a 1984 emergency in which the
County didn't have ewr capacity to accomodat

increased development. many of the residential
developments had already paid connection foes. The plan
iA designed to correct these previous imbalances, to meet

future need, and to met 09R and EPA requrements.

There are two problems with Hillsborough County's plan.
One problem is that the $250 million plan depends upon
approximately $10 Willion worth of 'an kind*
contributions by private industry. Under this *se1i-

pzivatsttion*, private developrs would desAignand build
owstewater plants, then turn thee over to the County to

operate. At least one developer has ben reported as
being wary of the program because of the proposed G-I
rule. The expected coat of compliance with the rule is a
deterrent to the necessary participation by the private


Another problem with Millaborough County's plan is
disposal of sewage effluent. The County must stop
surface water discharge, and ia looking toward both

mandatory reuse for lawn irrigation and wetlands

discharge. In many areas of Milleborough County,
however, these types of treated effluent discharge would
.he prohibited or greatly restricted, under the proposed
G-I rules. This could be a special problem in Northwsat
Mill1orough County, where there is a great deal of

residential growth, and where West Coast Regional water

Supply Authority has a wellfield. This ellfreld, unlike
the Authority's wollfields in Paeo County, is not

located on one large piece of property. his wellfield
contained wlls, each located on separate, non-
contiguous sites that are approxisately one acre or less
in size. The five year and ten year travel time zones of
protection for each of theas wells could effectively
prevent or oask prohibitively spensive any type of
discharge in the areas in between the ells. A similar
situation uy exist in the future in South Central

lillsborough County, where aest Coast egionl Water
Supply Authority would like to put 17 wlle in a _
sile area, each well on separate, non-contgoous one acre
Sites. I am nvolvod in administrative proceedings on

the latter proposed wellfiald, so it probably is
inappropriate for further comment. In either case, the
idea of ten to twenty separate, non-contiguous, discrete
wll sites within a __ mile are gives a nw dimension
to the soe of protection concept. There are 110
separate property owners within a one-half *i* radius of
one site.

Silleborough County's utilities iAprovement program may
be at the mercy of the proposed C-I rule. Tbo expense of
cowpljing with the C*I rule could subtantially affect

the amount of private involvement in the plan. The 0-i
rule also could affect substantially the County's ability
to dispose of effluent. A 05D spokesu n was reported as
statang tht there are basically three options in dealing
with the effluent disposal issue. The first is to find
other markets, whether remote or Costly, for wastewater
by-products. The other option are to relax environ-
mental estndards or to limit growth.

3. Those three options really sue At all up. The proposed
G-I rule is a sove toward strict environmental standards.
Limiting growth is not a viable option at this point,
when some counties can't even handle the growth they have
already experienced. Developing cost-efficient rwys to
treat Watewater for reuse and transport it to the site
of the use is the most realistic option.

the question iAs who should bear this cost? Should
private industry, dischargers who have suddenly become

villains, assume the research end development costs,
implementation and transportation costs to pay the real
cost of achieving the envirooentaliets' dream of one big
underground glass of ewter? This would lead to the
*privatisation* of the water supply industry. This Sy
be the ultimate solution. If 'pure water* iAs as care
an the media and enviromentalists would have s believe,

private market forces will combine to find 4 way to treat
and use more and more vastewater. If the wastewater.
even though treated to secondary standards, cannot De
discharged into the ground, it has to be piped and
transported somehere. At some point, the cost of
treating the water to the point where it is useful to
industry, agriculture, or to private citizens, Will
become low enough that It will become feasible or even
profitable for private industry to develop a sideline of
supplying Wqter for reuse. This is siillar to the co-
generation programs that electricity users have
developed. It may be opposed by the big ter suppliers,
but ultimately, this mew Wve of privatization may become

4. Another collateral effect of the proposed rule, if
implemented in its fullest force, would be isolation of
public water sources from centers of population end
industry. Tnis Would result in transportation of water
supplies over greater distances, and increased
trnamisasion costs. This means greater costs to the
consumer and greater epene to the supplier.

S.'The proposed rule, if implemented in its full force,
could wreak havoc on many water management distract
permitting program and policies. The proposed rule's
goals and policies conflict with any esoiting eter
managemnt district programs and policies. for example,
the proposed rule would conflict with some of the
policies of the Southwest Florida Water management
District, including:
(S) water conservation through the use of the
lowest quality of water available and useables

Ibi water conservation through rouse such as
agricultural irrigation ta&iwster recovery
systems and recycling of treated effluent for
reasonable beneficial reuses

(c) water conservation through development of
off-stream reservoirs for storage of excess flows
for utilization during periods of low flows

(d) wter conservation through recharge of
available surface or surficial aquifer wters to
the Floridan Aquifer for subsequent usei

(e) water conservation through recharge of
evarlable water for storage and direct recovery
for use during periods of low availability;

f) water conservation through ratentson/
detention systems designed to comply with the
stormater rule and to achieve maixmum
practicable aquifer recharge and reduction in
Off-site discharge.

The proposed rule also could affect eatsting and planned
flood control projects of the Southwn t Florida water
Management District.

these concerns were expressed by the District in a 1984
Statunt in response to the then-pendang G-I petitions.
In 19LS, the Governing Board adopted a resolution
reaffirming it position. Trh Southwest Governing board

has not had an opportunity to develop en official
statement or resolution in response to the pendir.g
proposed rule, but the staff has been following the
proposed rule with the board' concerns in mind.

The Southwest District staff has suggested that DER
maintain the status qo. It has encouraged DER to

establish demonstrationn are within the Southest

District to determine the effect of applying the proposed
rule within that area.

Pasco County has also expressed doubts as to the need for
a revised rule at this tim. The County hs informed DER
of Its position that there has not been sufficient
documentation of any need for rule revisions there has
been no study to identify the problem and the areas
that y need additional protection. It also advocates
lees restrictive measures, such as increased monitoring
and increased water quality standards.

The proposed rule has been a **hock treatment- for private
industry. It is complicated rule that has been developed
rather quickly, with many revisions. There are many
problems with the proposed rule, and DEf through its
workshops, has listened to the concerns of private industry
and consultants. At the June 4 KRC meting, interested
parties will have another chance to affect development of
the proposed rule.

The proposed rule reflects policies mandated by the State

Comprehensive plan, which requires identification and
protection of water recharge area and incentives for their
conservation; it also requires that aquifers be protected
froe depletion and cootaination through appropriate
regulatory program and incentives. Also, the Plan requires
that lnd use planners consider the impact of land use on


Wvter quality and quantity. DBR' State Miter Use Plan.
adopted this year, recomnnds prohibition or severe

lIsatation on pollutant discharges to high recharge areat.

It recomends similar ue restrictions for land within the
cone of influence of a public wellfield, or for land
designated by local government as a future wellfeld site.

The proposed G-I rule is simply a response to the policies
mandated by the State Coeprehensive Plan, and it is DER's
wy of implemnting the State Mater use Plan. It also is a
response to the increasingly prevalent view that water
exists only to serve our drinking water needs. The other
uses of water are ignored. This my not really be best for
Florida, but it I1 encouraged by state Iow. Private
industry can only cope with the growth management measures

by LHplng informd. by inforling DCR of its concerns, and
by using its resources and skills to cope with the changes
to its benefit.

1. Introduction

nen I accepted the opportunity to address this

impressive asseblage9 of experts, I did not realize that the
groundwater IG-11 Rule would ue at such a controversial stage in

its development and/or desise. I also did not realise that 1
would be snring the platform with such an unassailable quartet
of what hats. I wonder if they put m onA hare as their homage
to the black hats or simply deferred to my advanced years. I may

never know the answer. In any case, I always look upon these
sessions as an opportunity to learn froe oy colleagues.

II. Historical perspective

The history of Florida is the history of constant changes
and constant debate regarding the uses of water and the shape of

its land/cater interface.
Nistory of Florida'l environmental movement has largely

been one of reaction to previous ristakel.
Our environmental education ha involved new concepts,

new vocabulary and now restrictions. Floods and mosquitoes are

outj aquifer and recharge are in.
environmental movement has intensified since 1975.

save our beaches. save our rivers, save our panthers
save our manateu, nd now. save our groundwater.

III. Groundwater vocabulary$
Aquifer, confining bed, recharge, sone of inflvenc.

luchate plum., travel tlie, tranemissivity.
Me used to believe that rights to use or pollute
groundwater went with the land, so long as you didn't harm your
neighbor. Good neighbor policy.
ven DR'* permitting practice under the current rule
gives a sons of discharge within which many standards do not
apply. Rapid movOeant from good neighbor groundwatr policy to
hydrogeolgical concepts that defy easy calculation or practical

effort to regulate impacts on groundwater It unique
because you cat S Lt. With elements of New sciences and new

technologies to measure t by.

er are now taking a scientific approach based upor part

geology, part computerised wmth, and port cusunctute. (The moer
holes you drill in it, the less pain you'll foel.) IM also'have
aew bysterias. Sorting out science from fiction, fact from fear
is a challenge to scientists, lawyers, engineers, and policy

IV. Intensity of comments and number of rule challenges to
groundwater rule invite explanation.
Prohibitions involved in the rule are significant
departure from reasonable assurance standards applicable to DER
permitting. Chapter 403 basically requires a permit to operate
or construct a pollution source. You can get a permit only by
demonstrating that your pollution source will not violate

standards. Redundancy and overlapping of onvirommntal
restrictions and comprehensive planning requirrentes sy lead to
grid lock.

The regulated public is reeling from the complexity of
recent environmental and land use Iplanniag duties and


Me are approaching grid lock the traffic planner's word

for what you've got when all of the intersections are overloaded
and non of the cars can move. I believe it that occurs, the
benefits of well reasoned restrictions and regulations My be

lost. thai is a time for industry, agriculture, public
officials, scientists and engineers ad others to step back from
the Maee of regulations we have created and see what a monster it
has become.

Earlier this month I told a group of engineers about soe
legal advice I'd given to R. J. 5. J. is my mythical client
who'd wanted to put a golf course on some property that he'd
inneratwa. R.J. went away an unhappy nen when I explained to him
it serious pollution source a golf course could be. I told
his what noxious pollutant stormwater could be, I detailed eon
of the problems he would face in the control and management of
surface waters, and I told him we were uncertain whether or not
the artificial wetlands he would have to construct to mitigate
for the loss of vegetation'within the landward extent of waters
of the state, could be used to treat the storwater runoff that
woulO DO caused by constructing the golf course. 1 think when I
told his that has property probably had some hydrc soil on it,
ne took it personally.
e called eh back this week and said he had decided to
hold oft on the golf course, and that he was going to lease a
little piece of the land to a guy who wanted to run a little
grocery store and an auto garage there. "At least I'll make
enough money off of tne deal to cover my taxes. he told me. me
asked me what I thought about it and I told his I'd have to look
into it a little bit and got back to him. So I pulled out a few
maps, asked around the office for suggestions, ade a few phone
calls and called hni back.
*R.J.*, I said, "I just wanted to give you a little

update on your situation. I don't think I found out anything
that would keep you from going ahead with your lease for the

grocery store and the garage. There are ome restrictions,
however, that you should be aware of and a little bit of
tacmhcal work that we need to do on the property. First of all.

you're not all that far from that swae y area over behind the
Baptist Church. You know where 'l* talking about? Now thi
eight sound funny, but you've got to find out how mucn it rains

over there, mad how much of the water goes into the ground. I
know that founds funny, but just do what I say. Then you have to
fnd out what the boundary of the swaep is, particularly if you
determine that Nore than 10 inches of water oaka into the ground
annually, and tell se how far you are from it. ror all we know,
you could be right there in the cone of depression of that swamp.
You don't have any idea what the 5 or 10 year travel tim of
groundwater in your area is, do you, R.J.? Does your wvle know?
Mow about the preacher? ell, anyhow, w need to know sum of
those numbers. You y ned to use a andom walk computer
program to do this.
Te second thing you're going to have to take care of,

R.J., is storeater. hat you Mod to understand is that there
it pasture storamster, golf course stormater, and parking lot
stormeate. Now the parking lot stormuter could either be
comercul parking lot storatoer or it coul4 be iteutrial
parking lot storsator. depending on what kind of vehicles you
park in your parking lot and what people coe there for."
i.J. said, "1 thought I'd Jlut clear off that little
corner there, level off the parking lot and kind of grade it so
it'll drgin into that little pond that's been there all tnhs
time. Wouldn't that be alightt"
.J., 1 don't think that would work. The reason is that

you my be talking about direct dischrge of industrial
etormwater into the underground aquifer. The groundwater people
think of that, kind of like we think about those people wno StiCk
needles rignt into their veins when they take drugs. You 3ust
can't do that anymore, .J. You're going to have to utility bhet
nnagemnt practices, control and retain your stormwater.
Probably in a lined pond), then provide treatment and disposal
by an direct method. I know a few engineers that can help you
work out a system that will work )ust fine."
By this tie R.J. wan not filing so hot about the little
grocery store and that other *seil-industrial facility" which
stores solvents, oils, greases, and other petro-cnemical
products, all of which are either hazardous or toxic, and likely
to destroy the water supply for future generations.
S"uddy," he said, l apprecrite your looking into this

and I'll see if I can find out the answer to son of your
questions, but it sounds pretty complicated and I think maybe
I'll 3ust dig out that pond a little bit and put me some catfish
in there. Surely you don't see any problem with raising a few
catfish and selling them in town, do you?"
*R.J., I'm going to have to look into it and call you
back. It's probably OK but there are a few restrictions that you
need to be awar of."

6^ 39_____________

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