SFWMD Alternative Water StorageSOUTH FLORIDA WATER MANAGEMENT DISTRICT
November 7, 2008
Mr. Chuck Huff
Director of Community Development
Village of North Palm Beach
501 U.S. Highway One
North Palm Beach, FL 33408
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Dear Mr. uff:
Subject: Alternative Water Storage -Order No. 2008-484
I'm pleased to send you the fully executed South Florida Water Management District
(District) Order authorizing the Village of North Palm Beach to utilize its existing facilities
to withdraw and store excess water from the C-17 Canal which would otherwise be lost
to tide.
Please note the conditions in paragraph 26 governing water withdrawals made pursuant
to the Order. Unless terminated earlier by the District's Governing Board, the Order is
in effect through October 9, 2013. Extension of the duration of the Order may be
requested in writing to the District's Executive Director for consideration by the
Governing Board.
Thank you for your cooperation and patience in working with us to develop an
acceptable mechanism to allow the Village to capture and store water which would
otherwise be lost to tide. If I can be of assistance to you in the future, please don't
hesitate to give me a call at (561) 682-6952.
Sincerely,
Terrie Bates
Assistant Deputy Executive Director
Water Resources
Enclosure: Order No. 2008-484
c: Permit File No. 50-00084-W
3301 Gun Club Road, West Palm Beach, Florida 33406 (561) 686-8800 FL WATS 1-800-432-2045
Mailing Address: PO. Boz 24680, West Palm Beach, FL 33416-4680 wwwsfivmd.gov
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BEFORE THE GOVERNING BOARD OF THE
SOUTH FLORIDA WATER MANAGEMENT DIS~I'R~C't~! 10' ~~ ~~'
IN THE MATTER OF:
Village of North Palm Beach, North
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Palm Beach Golf Course Alternative SFWMD Order No. 2008-484 DAO
Water Storage for Excess Water Lost
to Tide from the C-17 Canal
ORDER
The Governing Board of the South Florida Water Management District
(hereinafter "District"), after considering recommendations of District staff and being
otherwise fully apprised of the matter, issues this Order pursuant to Sections 373.083(2)
373.085, 373.086 and 373.171(1)(a), F.S., based on the following Findings of Fact and
Ultimate Facts and Conclusions of Law.
FINDINGS OF FACT
1. The Village of North Palm Beach, North Palm Beach Golf Course
("NPBGC"), has requested the District to authorize the diversion of water from the C-17
Canal, also known as the Earman River Canal, upstream of the S-44 Structure, for storage
on NPBGC lands for groundwater recharge purposes.
2. NPBGC requests to divert water when the stage measurement at the
District structure S-44 head exceeds 7.0 feet, via operation of a 950 gallons per minute 2
cubic feet per second pump, located at approximately 300 feet west (upstream) from
District structure S-44 on the north side of the C-17 canal. This is existing infrastructure
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used by the NPBGC to pump water from the C-17 canal pursuant to its existing
Consumptive Use Permit No. 50-00084-W ("Permit")
3. On December 13, 2007, the Governing Boazd issued Water Shortage
Order 2007-870-DAO-WS ("Order"). Said Order imposed Modified Phase III Extreme
Water Shortage restrictions pursuant to Chapter 40E-21, F.A.C., on agricultural, nursery,
golf course, athletic/recreational areas, water utility, and landscape irrigation water uses
of surface and groundwater sources within the entire geographic boundaries of the South
Florida Water Management District. NPBGC was subject to the conditions of the Order.
4. On February 22, 2008, NPBGC applied for a variance in accordance with
Rules 40E-21.275, and 40E-0.115, Florida Administrative Code, from the Order. The
variance requested use of water from the C-17 canal that is lost to tide.
5. On March 13, 2008, the Governing Boazd approved Variance No. 4536
for the NPBGC from this order. The variance is temporary in nature although it was
extended under Water Shortage Order No. 2008-166-DAO-WS. The variance expired on
September 11, 2008.
6. The variance authorized withdrawal of water from the C-17 Canal, also
known as the Earman River Canal, when the stage measurement at the Structure S-44
head exceeds 7.0 feet. The variance specified that water above this stage is water that
would be lost to tide. Structure 5-44 is operated to maintain a stage in Canal C-17 of
+6.6 feet NGVD during the wet season (May to October) and +7.0 feet NGVD in the dry
season (October to May) to prevent salt water intrusion in the C-17 Basin.
2
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7. The withdrawal occurs from a turbine pump at a rate of 2 cubic feet per
second ("cfs") located on the C-17 canal that transfers water through an 8-inch pipeline
which provides water to two pazks before the remainder is stored in two interconnected
ponds located on NPBGC's golf course.
8. Operational records of the District show that for the period of record
January 1, 1998, through July 1, 2008, there has been an average daily flow of 70 million
gallons per day under the S-44 structure. The records indicate the flow through the
structure occurs on a regular basis. See Exhibit A.
9. NPBGC submitted Application No. 070612-23, seeking the renewal of its
consumptive use permit which was approved by the Governing Board on September 11,
2008.
10. NPBGC is requesting to store water that is being lost to tide over the 5-44
structure in a similar manner as specified in Variance No. 4536 until such time as the
District determines that such water is needed for restoration of the natural system
pursuant to an Everglades or other restoration project, for consumptive use, or for any
other use within the District's authority to regulate such use.
11. NPBGC is the most downstream located existing legal user of the C-17
Canal. Its withdrawal facilities are located approximately 315 feet from Structure 5-44.
12. NPBGC will use existing infrastructure to withdraw the water being lost
to tide from the C-17 canal and to store this water. NPBGC will not incur any additional
capital investments. as a result of these activities.
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13. NPBGC received surface water management permit No. 50-07275-P for
construction and operation of a surface water management system servicing the golf
course on March 8, 2006. This surface water management permit provides for expansion
of an existing lake and the excavation of two new lakes located on the golf course
property.
14. The storage of the water being lost to tide will occur in two
interconnected lakes authorized in surface water management permit No. 50-07275-P.
The water remaining in the storage ponds after irrigation demands under the Permit are
met will recharge the groundwater.
15. NPBGC seeks no compensation from the District for the voluntary use of
its property to store the water as detailed in the aforementioned paragraphs.
16. The voluntary action of NPBGC to use its lands as a storage site for and
for groundwater recharge from water being lost to tide will assist the District in meeting
its objective to obtain the most beneficial use of the water resources of the state.
ULTIMATE FACTS AND CONCLUSIONS OF LAW
17. The C-17 Canal is part of the Central and Southern Florida Flood Control
Project for which the District is the designated local sponsor pursuant to Section
373.1501, F.S. Pursuant to Sections 373.085 and 373.086, F.S., the District is authorized
to operate the works of the District, including the 5-44 structure and regulate water in the
C-17 canal. Section 373.085(1) provides that the Governing Board has authority to
4
prescribe the manner in which local works provided by private persons will connect with
and make use of the works or land of the District.
18. Pursuant to Section 373.416(1), F.S., the Governing Board may impose
such reasonable conditions as are necessary to assure that the operation or maintenance of
any stormwater management system, dam, impoundment, reservoir, appurtenant work, or
works will comply with the provisions of Part IV of Chapter 373, will not be inconsistent
with the overall objectives of the District and will not be harmful to the water resources
of the District.
19. Pursuant to Section 373.083, F.S., the Governing Boazd is authorized to
issue orders to implement or enforce any of the provisions of Chapter 373, F.S. Under
Chapter 373, the Governing Boazd has the authority to regulate the works of private
persons to provide water storage for beneficial purposes. See S. 373.016, F.S.
20. Acting under these authorities, the District has the discretion to allow for
storage of water that is otherwise lost to tide consistent with achieving the other District
missions, including natural systems protection and restoration, such as Everglades
restoration, protection of existing legal uses, flood protection, water quality, and water
supply.
21. Under this authority, NPBGC requests the District to authorize it to divert
excess water being lost to tide through the C-44 structure onto NPBGC golf course lands
for storage and groundwater recharge.
5
22. NPBGC requests to divert the water as described above until such time as
the District determines that such water is needed for restoration of the natural system
pursuant to an Everglades or other restoration project, for consumptive use, or for any
other purpose under Chapter 373, F.S.
23. NPBGC uses the existing pump facility to withdrawal irrigation water for
the golf course for storage within identified storage ponds. Under this Order, NPBGC is
not requesting to modify its existing consumptive use permit withdrawals for irrigating
the golf course.
24. The District finds that this voluntary action of NPBGC to use its lands as
an alternative storage site under the above described circumstances will assist the District
in meeting its objective to provide water storage for beneficial purposes under Section
373.016, F.S.
25. Actions similar to those authorized herein were authorized via a
Governing Board issued Variance No. 4536 to Water Shortage Order No. 2008-166-
DAO-WS for the NPBGC for the duration of the variance.
ORDER
Based upon the Finding of Fact, Ultimate Facts and Conclusions of Law pursuant
to the above cited laws, the Governing Boazd orders that:
26. Excess water lost to tide from the C-17 canal may be withdrawn for
storage and groundwater recharge on the NPBGC site as set forth in Exhibit B in
accordance with the following conditions:
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a. Water may be withdrawn for storage and groundwater recharge only
when the stage measurement at the 5-44 head exceeds 7.0 feet.
b. Water will be diverted using a 950 gallon per minute 2 cubic feet per
second pump located at approximately 300 feet west (upstream) from SFWMD structure
5-44 on the north side of the C-17 canal which is the existing infrastructure used by the
NPBGC to pump water from the C-17 canal or using replacement infrastructure of
similar type and at the same location. No other withdrawal facilities are authorized by
this Order.
c. NPBGC agrees that it will report the amount of water withdrawn
monthly on a quarterly basis. This report shall reference NPBGC's consumptive use
permit number and be provided to the Section Leader, Environmental Resource
Compliance Division (MSC 4230).
27. This Order does not relieve NPBGC from the requirements to obtain any
other federal, state, or local authorizations.
28. This Order does not grant any legal right to water as set forth in Chapter
373 F.S. (such as rights of an "existing legal use" or "user" under Section 373.223,
F.S.), over the water diverted for aquifer recharge under this Order. The limiting
conditions and irrigation withdrawal limitations from the C-17 canal in the Permit are not
modified or otherwise affected by this Order. NPBGC shall continue to comply all
conditions of its Permit except as outlined in this Order.
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29. This Order does not grant any legal right to water as set forth in Chapter
373.223, F.S. and associated District rules and regulations.
30. This Order shall terminate within five years from the date of approval by
the Governing Board unless the Governing Board approves termination at an earlier date.
Extension of the duration of this Order may be requested in writing to the District's
Executive Director for consideration by the Governing Board.
31. The Executive Director, with concurrence of the Governing Board, may
modify the terms of this Order at any time, as appropriate for the protection of the public
health, safety, and welfare and the water resources of south Florida. See S. 373.119, F.S.
32. Failure to comply with the terms of this Order shall constitute a violation of
a District Order under Chapter 373, F.S., and enforcement proceedings may be brought in
any appropriate administrative or judicial forum.
33. NPBGC shall insure that harmful impacts to the water resources, off-site
land uses, or existing legal uses of water do not occur as a result of this Order. In the event
such harmful impacts result from actions authorized by this Order, NPBGC shall implement
all necessary actions, as directed by the District, to cease such harmful impacts and, if
necessary, to mitigate such impacts. Failure to comply with this requirement shall be
considered a violation of this Order.
34. This Order does not convey any property right to Respondent, nor any
rights and privileges other than those specified in this Order.
35. This Order shall take effect immediately upon execution.
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36. A Notice of Rights is attached as Exhibit C.
DONE AND SO ORDERED in West Palm Beach, Palm Beach County, Florida,
on this ~''~ day of October, 2008.
SOUTH FLORIDA WATER
MANAGEMENT DISTRICT
BY ITS GOVERNING BOARD
By: a `` . Z~(/
Sheryl G.) od, General Counsel
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EXHIBIT A Page 2
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EXHIBIT B Page 1
NOTICE OF RIGHTS
As required by Sections 120.569(1), and 120.60(3), Fla. Stat., following is notice of the opportunities which
may be available for administrative hearing or judicial review when the substantial interests of a party are
determined by an agency. Please note that this Notice of Rights is not intended to provide legal advice.
Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to
consult an attorney regarding your legal rights.
RIGHT TO REQUEST ADMINISTRATIVE HEARING
A person whose substantial interests are or may be affected by the South Florida Water Management
District's (SFWMD or District) action has the right to request an administrative hearing on that action
pursuant to Sections 120.569 and 120.57, Fla. Stat. Persons seeking a hearing on a District decision
which does or may determine their substantial interests shall file a petition for hearing with the District Clerk
within 21 days of receipt of written notice of the decision, unless one of the following shorter time periods
apply: 1) within 14 days of the notice of consolidated intent to grant or deny concurrently reviewed
applications for environmental resource permits and use of sovereign submerged lands pursuant to Section
373.427, Fla. Stat.; or 2) within 14 days of service of an Administrative Order pursuant to Subsection
373.119(1), Fla. Stat. "Receipt of written notice of agency decision" means receipt of either written notice
through mail, or electronic mail, or posting that the District has or intends to take final agency action, or
publication of notice that the District has or intends to take final agency action. Any person who receives
written notice of a SFWMD decision and fails to file a written request for hearing within the timeframe
described above waives the right to request a hearing on that decision.
Filing Instructions
The Petition must be filed with the Office of the District Clerk of the SFWMD. Filings with the District Clerk
may be made by mail, hand-delivery or facsimile. Filings by a-mail will not be accepted. Any person
wishing to receive a clerked copy with the date and time stamped must provide an additional copy. A
petition for administrative hearing is deemed filed upon receipt during normal business hours by the District
Clerk at SFWMD headquarters in West Palm Beach, Florida. Any document received by the office of the
SFWMD Clerk after 5:00 p.m. shall be filed as of 8:00 a.m. on the next regular business day. Additional
filing instructions are as follows:
• Filings by mail must be addressed to the Office of the SFWMD Clerk, P.O. Box 24680, West Palm
Beach, Florida 33416.
• Filings by hand-delivery must be delivered to the Office of the SFWMD Clerk. Delivery of a
petition to the SFWMD's security desk does not constitute filing. To ensure proper filing, it
will be necessary to request the SFWMD's security officer to contact the Clerk's office. An
employee of the SFWMD's Clerk's office will receive and file the petition.
• Filings by facsimile must be transmitted to the SFWMD Clerk's Office at (561) 682-6010. Pursuant
to Subsections 28-106.104(7), (8) and (9), Fla. Admin. Code, a party who files a document by
facsimile represents that the original physically signed document will be retained by that party for
the duration of that proceeding and of any subsequent appeal or subsequent proceeding in that
cause. Any party who elects to file any document by facsimile shall be responsible for any delay,
disruption, or interruption of the electronic signals and accepts the full risk that the document may
not be properly filed with the clerk as a result. The f ling date for a document filed by facsimile shall
be the date the SFWMD Clerk receives the complete document.
Rev. 10131107 EXHIBIT C Page 1
i 5'
Initiation of an Administrative Hearing
Pursuant to Rules 28-106.201 and 28-106.301, Fla. Admin. Code, initiation of an administrative hearing
shall be made by written petition to the SFWMD in legible form and on 8 and 1l2 by 11 inch white paper.
All petitions shall contain:
1. Identification of the action being contested, including the permit number, application number,
District file number or any other SFWMD identification number, if known.
2. The name, address and telephone number of the petitioner and petitioner's representative, if any.
3. An explanation of how the petitioner's substantial interests will be affected by the agency
determination.
4. A statement of when and how the petitioner received notice of the SFWMD's decision.
5. A statement of all disputed issues of material fact. If there are none, the petition must so indicate.
6. A concise statement of the ultimate facts alleged, including the specific facts the petitioner
contends warrant reversal or modification of the SFWMD's proposed action.
7. A statement of the specific rules or statutes the petitioner contends require reversal or modification
of the SFWMD's proposed action.
8. If disputed issues of material fact exist, the statement must also include an explanation of how the
alleged facts relate to the specific rules or statutes.
9. A statement of the relief sought by the petitioner, stating precisely the action the petitioner wishes
the SFWMD to take with respect to the SFWMD's proposed action.
A person may file a request for an extension of time for filing a petition. The SFWMD may, for good cause,
grant the request. Requests for extension of time must be filed vvith the SFWMD prior to the deadline for
filing a petition for hearing. Such requests for extension shall contain a certificate that the moving party has
consulted with all other parties concerning the extension and that the SFWMD and any other parties agree
to or oppose the extension. A timely request for extension of time shall toll the running of the time period for
filing a petition until the request is acted upon.
If the District's Governing Board takes action with substantially different impacts on water resources from
the notice of intended agency decision, the persons who may be substantially affected shall have an
additional point of entry pursuant to Rule 28-106.111, Fla. Admin. Code, unless otherwise provided bylaw.
Mediation
The procedures for pursuing mediation are set forth in Section 120.573, Fla. Stat., and Rules 28-106.111
and 28-106.401-.405, Fla. Admin. Code. The SFWMD is not proposing mediation for this agency action
under Section 120.573, Fla. Stat., at this time.
RIGHT TO SEEK JUDICIAL REVIEW
Pursuant to Sections 120.60(3) and 120.68, Fla. Stat., a party who is adversely affected by final SFWMD action
may seek judicial review of the SFWMD's final decision by filing a notice of appeal pursuant to Florida Rule of
Appellate Procedure 9.110 in the Fourth District Court of Appeal or in the appellate district where a party
resides and filing a second copy of the notice with the SFWMD Clerk vvithin 30 days of rendering of the final
SFWMD action.
Rev. 10131/07 EXHIBIT C Page 2