STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SIERRA CLUB, CALUSA GROUP, c/o )

Ellen Peterson, Co-Chair, )

)

Petitioner, )

)

vs. ) CASE NO. 82-159

)

LEE COUNTY, FLORIDA, )

)

Intervenor, )

and )

) BLACK ISLAND RESORT and STATE OF ) FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on December 16, 1982, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Carolyn M. Gettings, Esquire

1970 Main Street, Suite 503

Sarasota, Florida 33577

For Intervenor: Marilyn Wnek, Esquire

Assistant County Attorney Post Office Box 398

Fort Myers, Florida 33902

For Respondent: William A. Keyes, Jr. Esquire Black Island Post Office Drawer 790

Resort Fort Myers, Florida 33902

For Respondent: Charles G. Stevens, Esquire Department of Assistant General Counsel

Environmental Department of Environmental Regulation Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

This proceeding was initiated by various applications submitted by the Respondent, Black Island Resort, to the Respondent, Department of Environmental Regulation, at different times during the fall of 1981. By those applications, the Respondent Black Island Resort (Black Island) sought a permit to construct a sewage treatment plant and disposal system, a reverse osmosis water treatment

plant, with associated waste brine disposal system (two separate permits) for a total of three permit applications.

The permit applications were processed separately by the department, but all resulted in the issuance of "Intent to Issue" letters on different dates, with the subsequent publication of the notices by the applicant in accordance with Rule 17-1.62, Florida Administrative Code. The subject petition for hearing's timeliness with regard to its date of filing vis-a-vis the publication of the "Intent to Issue" letter by the department, has been the subject of extensive prior review in this proceeding, before this Hearing Officer, culminating in the department's Final Order and Order of Remand entered August 27, 1982. After a number of attempts to set the hearing subsequent to that date, the cause finally came to hearing on the merits on the above-referenced date, December 16, 1982. By the date of the hearing, only the sewage treatment plant and effluent disposal system permit application remained at issue. At the outset of the hearing, Black Island Resort announced that its applications for the reverse osmosis water treatment plant and the attendant waste brine disposal system permit application were being withdrawn from consideration in view of the availability of potable water from another source. Thus, the only permit application remaining at issue was the sewage treatment plant and disposal system application. Parenthetically, it should be noted that a fourth permit application regarding disposal of sewage effluent through a collection and transmission system has been filed and is apparently being held in abeyance by the department pending resolution of the permit application at issue herein.

Lee County, which filed a petition to intervene, was allowed to intervene in opposition to the application following a motion hearing conducted by telephone conference call on November 29, 1982.

At the hearing, the Respondent (applicant) presented the testimony of James Paul Elliott, professional engineer, and David Gomberg, a hydrologist. The department presented the testimony of Vincent N. Mele, an engineer employed by the Department of Environmental Regulation. The Respondent (applicant) presented 16 exhibits, all of which were admitted into evidence. The Petitioner, Sierra Club, presented Roger Clark, the manager of three state aquatic preserves in Lee County, Robert French, a registered professional engineer, William Howell, a graduate in economics and urban planning, who is a planning technician for Lee County, Richard Anderson, senior planner for Lee County, and a graduate in urban and regional planning, and Robert Wayne Johnson, who holds a masters degree in oceanography and who is employed as a private environmental consultant in Lee County. The Intervenor presented Sarah Ruth Hunter, Lee County Building Official and Custodian of Lee County building permit records. The Intervenor adopted the witnesses of the Petitioner as its case-in- chief. The Petitioner presented Exhibits A through C. Exhibits A and B were admitted into evidence. Petitioner's Exhibit C was not admitted on the basis of it being hearsay. The Intervenor presented Exhibit AA which was admitted into evidence.

Subsequent to the hearing, the Intervenor ordered a transcript of the proceedings, which was filed January 31, 1983. Thereafter, all proposed findings of fact and conclusions of law were timely filed on or before February 18, 1983.

The issue in this proceeding is whether the subject application should be granted; specifically, whether the proposed sewage treatment plant and attendant waste disposal system will violate water quality standards contained in Chapter 403, Florida Statutes, and Florida Administrative Code Chapters 17-3 and 17-4, with regard to surface and ground waters of the state.

FINDINGS OF FACT

1. The Respondent, the permit applicant Black Island Resort, seeks a permit authorizing installation of a sewage treatment plant with a treatment capacity of 63,000 gallons per day and an attendant drain field effluent disposal system. The sewage treatment and disposal system is intended by the Respondent to serve a proposed condominium real estate development which the Respondent is constructing, consisting of 3 thirteen story condominium "towers" which will ultimately house approximately 634 residents, on approximately 27 acres, on the northern end of Black Island in Estero Bay, in Lee County, Florida.

   
   

2. The sewage treatment plant would be a conventional, contact- stabilization process plant with a capability of providing, if properly operated, a 90 percent treatment level in terms of reduction of biochemical oxygen demand (BOD) and suspended solids. No advanced waste treatment (tertiary treatment) with regard to nutrients is proposed. The design capacity of the plant represents a 100-gallon per resident, per day, allocation of plant capacity with approximately 630 to 634 residents to be served at that rate of usage when the project is completed, hence the 63,000 gallons per day capacity figure. The plant is not designed to include any excess treatment capacity to allow for added growth in the numbers of residents served by the plant, nor to allow, in terms of the disposal system, any reserve capacity to accommodate excess storm water. The proposed achievement of the "secondary treatment" standard of 90 percent removal of BOD and suspended solids is predicated on the 63,000 gallons per day design capacity not being exceeded.

   
   

3. The permit applicant proposes disposal of the effluent after secondary treatment in a drain field of approximately 29,800 square feet of surface area. This drain field would be constructed by excavating that area to depth of eight feet in the soil of the site to remove the highly impermeable clay-type soil in which the drain field will be placed. This excavated material will be replaced with high percolation-type of "grated rock" with one to two feet of sand placed in the bottom of the resulting pit under the rock. The replacement material will be approximately eight feet in depth and will be designed to percolate the effluent from the sewage treatment plant at the rate of approximately two inches per minute, a "medium" percolation rate for a plant and drain field of this sort. The effluent from the sewage treatment plant will contain a chlorine residual designed to retard algae growth and kill any remaining pathological organisms in the effluent. The effluent will also contain all the nutrients common to such effluent, since the secondary treatment process is not designed to remove nutrients, consisting primarily of nitrogen and phosphorus. The water table, or level of ground water below the natural surface of Black Island, is three feet to four feet below the surface of the ground at the drain field site at the dry season of the year. It was established that during the wetter seasons of the year, the ground water table or level is closer to the surface than that figure. The ground water table, at the time the measurement was taken in late fall of 1981, is also approximately one foot above sea level at the drain field site. The water varies in salinity from fresh to brackish. A shell layer lying beneath the drain field at a depth of 11 feet is influenced by the rise and fall of the tide in Estero Bay and Big Carlos Pass. Thus, the ground water at the drain field site does mix gradually with the tide in the surrounding waters of Big Carlos Pass and Estero Bay, which are within the Estero Bay Aquatic Preserve, an Outstanding Florida Water.

4. In an effort to allay concerns by the department concerning the proximity of the proposed disposal site and sewage treatment plant to the Estero Bay Aquatic Preserve, and its concern for migration of ground water, including drain field leachate to that body from the drain field site, coupled with the fact that the proposed method of treatment would not include nutrient removal from the effluent, the applicant obtained the services of Dr. David Gomberg, a hydrologist, to determine what happens to the effluent upon its entry and exit from the proposed drain field. Water levels in the lake near the site and in various test wells installed in the vicinity of the site were monitored in an effort to determine the rapidity with which the soil transmits water, the direction of flow of the ground water, and to monitor each well for BOD and chemical content.

   
   

5. The lake near the subject drain field site is at a higher elevation than sea level, and ground water flows in a northwesterly direction from the lake through the drain field site to Big Carlos Pass, which lies 100 feet beyond and downslope from the drain field site. The soil down to a depth of approximately nine to ten feet is of a clay-silt mixture, which is highly impermeable to the passage of water. There is a gradual northwesterly natural flow of ground water in this first nine to ten feet of clay-silt soil, which contains the ground water aquifer in this area. At a depth of approximately 11 feet below the surface of the ground at the drain field site, there begins a four-foot layer of shell. The water pressure in the clay-silt soil aquifer is at a higher level than in the 11-foot to 15-foot zone containing the shell bed, and the upper portions of the clay-silt aquifer are higher than sea level. Consequently, the natural movement of the water is a northwesterly flow to the sea, as well as in a vertical direction to the shell bed. Due to the highly impermeable nature of the clay-silt soil surrounding the drain field, 90 percent of the effluent waters entering the drain field will, at least initially, move vertically down to the shell bed. It will take a minimum of four years for the effluent waters to move in a lateral direction from the drain field 100 feet through this dense soil to the waters of Big Carlos Pass. However, due to the removal of eight feet of this impermeable clay-type material and the insertion in the resulting pit of the medium-percolation rate rock and sand material, that effluent will get to the ground water level quicker than under natural conditions when moving in a vertical direction downward. This is especially true in view of the fact that the lower five feet of the drain field excavation will be below the ground water table even in the dry season. Although tidal influence is minimal in the largely impermeable clay-silt soil, the shell bed does respond to daily tide fluctuations, and the tide creates an upward pressure head" upon rising and a downward and outward "pressure head" upon the falling tide, with the average water direction being downward and outward through the shell bed in the direction of the surface waters of Big Carlos Pass. Thus, although it may take a number of years for effluent to reach Big Carlos Pass through the highly impermeable material surrounding the sides of the drain field pit, the effluent can reach the shell bed which communicates tidally with Big Carlos Pass and the surrounding surface water on a daily basis. Water entering the shell bed thus communicates with and is transmitted to the surface waters of Estero Bay, the closest point being Big Carlos Pass, which is an Outstanding Florida Water. This movement downward and laterally will be rendered more rapid through the build-up of a positive water "pressure head" in the drain field as the drain field becomes more and more saturated with effluent wastewater. Indeed, only approximately ten percent of the effluent water entering the drain field will travel laterally from the sides of the drain field through the dense clay-silt material; thus, the vast majority of the wastewaters will move vertically, upward or downward. (See Gomberg's testimony).

6. Dr. Gomberg was accepted as an expert in the field of hydrology, but his expertise has heretofore been derived from experience with management of surface waters for the Southwest Florida Water Management District and through research and publications regarding the hydrology of Florida limestones, which substrates are not involved in the geographical area of this application. He obtained no data from similar sewage treatment plants and disposal systems as a basis for his opinions, and this is the first sewage treatment plant and disposal system with which he has had experience in either monitoring or predicting the effects of system operation and effluent disposal.

   
   

7. The other expert witness offered in support of the application, Vincent Mele of the Department of Environmental Regulation, is an expert in the area of sewage treatment and disposal permitting. His is a supervisory position. He had no direct, personal experience with the drain field site and disposal system, had performed no tests, and does not commonly engage in testing wastewater effluent, the operational characteristics of such disposal systems, nor engage in their design or operation.

   
   

8. Robert Howard French, a registered professional engineer and administrative director of the Division of Environmental Protective Services for Lee County, was accepted as an expert witness in the area of wastewater treatment plants and systems and their design, installation and operation. He has previously served as Fort Myers Director of Public Works and City Engineer and has extensive experience in the design, installation and operation of package sewage treatment plants such as this, with drain field disposal systems such as that involved herein, some 20 of which are in the immediate vicinity of the subject site, along the coastal area of Fort Myers Beach. Mr. French is thus most familiar with inherent problems with sewage plants with drain field disposal systems of this type in Lee County, with the pertinent type of impermeable silty-clay soil such as surrounds the proposed drain field. His opinions are thus entitled to more weight and are accepted to the exclusion of those of the other expert witnesses to the extent that their opinions are inconsistent. It was thus established that in a relatively short period of time the drain field, which in effect is a large tub or vat excavated into otherwise almost impermeable soil, will become saturated and fill up, with some wastewater as previously found, migrating to the surface waters of Big Carlos Pass through the underlying tidally influenced shell bed, but with a large portion of the effluent filling the drain field, "blowing out" the top of the drain field and flowing over the ground on a downhill gradient approximately 100 feet into Big Carlos Pass, thus discharging nutrient-laden effluent into Big Carlos Pass, the nearest surface water. The drain field will be overlain with impermeable felt paper, over which a thin layer of soil is placed. Because of the almost waterproof nature of this barrier, the grass and other plants growing on top of the drain field can perform little in the way of nutrient uptake, as would be the case if the effluent were disposed of on surface vegetation through either spray or soak irrigation, which disposal methods could be used as alternative disposal methods with this treatment plant. Therefore, the installation and operation of the plant and disposal system as proposed will result in the discharge of nutrient-laden wastewater into an Outstanding Florida Water body.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Section 120.57, Florida Statutes.

10. The sewage treatment plant and disposal drain field proposed by Black Island Resort is subject to the permitting requirements of Chapter 403, Florida Statutes, and the rules of the department promulgated thereunder.

    
    

11. Pursuant to Section 403.087(4), Florida Statutes, the department is required to issue permits to construct, operate, maintain, expand or modify installations which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards and rules promulgated by the department.

    
    

12. Section 403.088(1), Florida Statutes, prohibits the discharge into waters of the state, any waste which by itself or in combination with waste of other sources reduces the quality of the receiving waters below the classification established for them.

    
    

13. Section 403.021, Florida Statutes, provides in pertinent part as follows:

    
    

    1. The pollution of the air and waters of this state constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish and other aquatic life, and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water.

       
       

14. Section 403.031, Florida Statutes, defines "pollution" as:

    
    

    (2) . . . the presence in the outdoor atmosphere or waters of the state of any sub- stances, contaminants, noise, or man-made or

    man-induced alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or

    may be potentially harmful or injurious to human health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.

    
    

15. The department's standards for permit review are enumerated in Florida Administrative Code, Rule 17-4.07(1), which provides, in pertinent part, that:

    
    

    1. A permit may be issued to the applicant

       upon such conditions as the Department may direct, only if the applicant affirmatively provides

       the Department with reasonable assurance based on plans, test results and other information,

       that . . . the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulation . . . .

       
       

16. Florida Administrative Code, Rule 17-3.011, provides pertinently as follows:

    Findings, Declaration and Intent.

    1. Article II, Section 7 of the Florida Constitution requires abatement of water pollu- tion, and conservation and protection of Florida's natural resources and scenic beauty.

    2. Section 403.021, Florida Statutes, de- clares that the public policy of the State is to conserve the waters of the State to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life, and for

       domestic, agricultural, industrial, recreational, and other beneficial uses. It also prohibits

       the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters.

       1. Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed.

       2. The quality of waters which exceeds the minimum quality necessary to support the desig- nated use of those waters shall be protected and enhanced.

       (11) The Department finds that excessive nutrients (total nitrogen and total phosphorus) constitute one of the most severe water quality problems facing the State. It shall be the Department's policy to limit the introduction of man-induced nutrients into waters of the State. . . .

       (Emphasis supplied)

       
       

17. Florida Administrative Code, Rule 17-3.041, the "Outstanding Florida Waters Rule," provides in pertinent part as follows:

    
    

    1. It shall be the Department's policy to

       afford the highest protection to Outstanding Florida Waters (a complete listing of which is provided in Subsection (3)) which generally include the follow- ing surface waters: . . . Estero Bay . . .

       
       

18. Florida Administrative Code, Rule 17-4.242, implements the provisions of the Outstanding Florida Waters Rule in providing as follows:

    
    

    Special Protection: Outstanding Florida Waters; Equitable Abatement.

    1. Outstanding Florida Waters

       (a) No Department permit or water quality certification shall be issued for any stationary installation which significantly degrades, either alone or in combination with other stationary installations, or is within Outstanding Florida Waters, unless the applicant affirmatively demon- strates that:

    2. The proposed activity or discharge is clearly in the public interest; and either,

       1. A Department permit for the activity has been issued or an application for such permit was complete prior to the effective date of the rule; or,

       2. The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge

       (d) For the purpose of this Subsection 17-4.242(1), the term "existing ambient water quality" shall mean water quality which could reasonably be expected (based on the best scientific information available) to have existed for the year prior to March 1, 1979, including daily, seasonal, and other cyclic fluctu- ations, taking into consideration the effects of allowable discharges for which a Department permit was issued or an application for such permit was filed and complete prior to March 1, 1979.

       (Emphasis supplied)

       
       

19. Additionally, aside from the language in Subsection (11) of Florida Administrative Code, Rule 17-3.011 (supra) regarding the finding and declaration therein that man-induced nutrients are one of the most severe water problems facing the state, Chapter 17-3, Florida Administrative Code, is replete with references in its water quality standards to the effect that the discharge of nutrients shall continue to be limited in order to prevent violations of other standards contained in that chapter and that man-induced nutrient enrichment shall be considered degradation in relation to the provisions of the Outstanding Florida Water Rules cited hereinabove.

    
    

20. There is no question that since the effluent generated by the proposed sewage treatment plant and drain field project, even after secondary treatment, will still contain a significant nutrient loading (nitrogen and phosphorus) and since the above authority provides that such nutrients constitute degradation of ambient water quality if deposited in waters of the state, that its deposition in the waters of Estero Bay, including Big Carlos Pass, will constitute degradation of ambient water quality in that Outstanding Florida Water body.

    
    

21. Since evidence adduced in this proceeding establishes that the water table of the ground water at the drain field is within three to four feet of the surface of the ground with the drain field being at a depth of eight feet, or three to four feet into and below the surface of the ground water table. The nutrient-laden sewage-effluent would thus be deposited in the ground water. These facts being established, it was not demonstrated by the applicant that the ground waters and aquifer into which the drain field would be excavated would not be degraded below appropriate standards contained in Chapter 403, Florida Statutes, and Chapter 17-3, Florida Administrative Code.

    
    

22. More critical to the question of ambient water quality in the ground water and the aquatic preserve however, is the fact that the four-foot layer of shell beneath the drain field is influenced on a daily basis by tidal fluctuations and that there is some communication with the sea and that shell bed. Since the larger part of the effluent deposited in a given time in the drain field will move downward and outward in the shell bed portion of the ground water aquifer through that tidal influence, it was established that the nutrient-laden effluent, in a very short period of time, will be deposited in

    the Aquatic Preserve, surface waters of the state which are to be afforded the highest possible protection. That being the case, the applicant did not provide affirmative reasonable assurance that, for this reason, significant degradation of Outstanding Florida Water will not occur.

    
    

23. Additionally, due to the almost impenetrable clay-type soil in which the drain field system will be installed, it will accept the effluent from the sewage treatment plant for a relatively short period of time, and will then become saturated with effluent. It will then develop a positive "pressure head" and will emit effluent out of its top onto the surface of the ground. Since the Outstanding Florida Waters of the Estero Bay and Big Carlos Pass are only 100 feet down-slope from the drain field, it was established that the degratory effluent will flow over the surface of the ground and enter the Estero Bay Aquatic Preserve substantially unaltered because of the lack of opportunity for nutrient "uptake" by surface vegetation. The flow of pollutants over the ground into the bay clearly constitutes a "discharge" into those waters. A direct discharge from a pipe or conduit is not necessary for the installation to be within the ambient of Florida Administrative Code, Rule 17-4.242. Thus, for this equally significant reason, the applicant failed to demonstrate that ambient water quality in the pertinent receiving waters will not be lowered nor that significant degradation of those waters will not occur.

    
    

24. The above-referenced Outstanding Florida Water Rules provide that a stationary installation which significantly degrades such waters, either alone or in conjunction with others, or is within Outstanding Florida Waters, cannot be permitted unless it is affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest; and that the existing ambient water quality within the Outstanding Florida Waters will not be lowered. Since nutrients are without doubt a serious form of pollutant, any such deposition of nutrients into an Outstanding Florida Water which is to be accorded the highest protection pursuant to the above authority may only be permitted after an affirmative showing that significant degradation of those waters will not occur and that existing ambient water quality in those waters will not be lowered. The applicant has not demonstrated affirmative reasonable assurance that the nutrient pollutants involved will not constitute significant degradation of the

    Outstanding Florida Waters involved or that they will not lower existing ambient water quality within those waters, or that the project is clearly in the public interest.

    
    

25. Accordingly, it must be concluded that the applicant has not established by a preponderance of the evidence affirmative reasonable assurances that the subject sewage treatment plant and disposal system will not cause pollution in contravention of the water quality standards embodied in the above authority and has not established entitlement to the subject permit.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED:

That the application of the Respondent Black Island Resort for the construction of a sewage treatment plant, with effluent disposal to an upland drain field, be DENIED.

DONE and ENTERED this 13th day of May, 1983, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1983.

COPIES FURNISHED:

Carolyn M. Gettings, Esquire 1970 Main Street, Suite 503

Sarasota, Florida 33577

Marilyn Wnek, Esquire Assistant County Attorney County of Lee

Post Office Box 398

Fort Myers, Florida 33902

Samuel R. Neel, Esquire Post Office Drawer 586 Tallahassee, Florida 32301

Charles G. Stevens, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

William A. Keyes, Esquire Post Office Drawer 790 Fort Myers, Florida 33902

Docket for Case No: 82-000159

Orders for Case No: 82-000159