STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAPLH A. KEHN, and WYATT S. BISHOP, )

)

Petitioners, ) DOAH CASE NOS. 85-2382

) 85-2385

and )

) MYAKKA VALLEY RANCHES IMPROVEMENT ) ASSOCIATION, INC., )

)

Intervenor, )

)

vs. )

)

CITY OF SARASOTA AND ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

) MYAKKA VALLEY RANCHES IMPROVEMENT ) ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) Case No. 85-3409

)

CITY OF SARASOTA AND ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. }

) CITY OF SARASOTA, FLORIDA, )

)

Petitioner, )

vs. ) CASE NO. 85-3410

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent. )

)

)

RECOMMENDED ORDER

A final hearing in these consolidated cases was held in Sarasota, Florida on May 27 through June 5, 1986, before Donald

1. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   Edward P. de la Parte, Jr., Esquire Matthew S. Mudano, Esquire

   705 East Kennedy Boulevard Tampa, Florida 33602

   (City of Sarasota) and

   John C. Hall, qualified representative 1133 21st Street, N.W.

   Washington, D.C. 20036

   
   

   1. Anthony Cleveland, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301

      (Department of Environmental Regulation)

      
      

      Judith S. Kavanaugh, Esquire

      2831 Ringling Boulevard, Suite C-209 Sarasota, Florida 33577

      (Myakka Valley Ranches Improvement Association, Inc.)

      
      

      Wyatt S. Bishop, pro se Route 1, Box 74-203

      Sarasota, Florida 34241

      
      

      Ralph A. KeLn, pro se Route 1, Box 74-170 Rocking Horse Lane Sarasota, Florida 34241

      
      

      Greg D. Sefton, pro se 5781 Old Ranch Road Sarasota, Florida 34241

      
      

      Individual Petitioner in Case Number 86-0338, Dorisann L. Peters, made no appearance during the formal hearing but offered testimony during a public testimony portion of the hearing held on June 5, 1986.

      
      

      At the hearing, the City of Sarasota (City) called fourteen witnesses, eleven of whom were qualified as experts in various fields, and also introduced 111 exhibits: the Department of Environmental Regulation (Department) called nine witnesses, five of whom were qualified as experts in various fields, and also introduced six exhibits Myakka Valley Ranches Improvement Association, Inc. (Myakka) called six witnesses, one of whom was qualified as an expert and also introduced 18 exhibits and individual Petitioners Wyatt S. Bishop, Ralph A. Kehn and Greg

   2. Sefton each testified on their own behalf, and also introduced a total of 23 exhibits. During a public testimony portion of the hearing, 27 witnesses testified under oath and a total of four exhibits were received. The final volume of the transcript of the hearing, consisting of a total of 14 volumes and 2454 pages, was filed on June 10, 1986, and the parties were allowed to file proposed findings of fact and conclusions of law by June 30, 1986. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

      
      

      BACKGROUND INFORMATION

      
      

      The City has three applications involved in this matter pending before the Department, including: a) An application for a permit to construct wastewater treatment plant and disposal system improvements: b) An application for a permit for dredging

      and filling in the waters of the state for activities associated with this project and c) An application for a wetlands exemption to allow the use of wetlands for water and wastewater recycling through the use of a sprayfield. Myakka and the individual Petitioners oppose the issuance of these permits and the wetlands exemption, and at the hearing the Department also opposed the City's applications. By stipulation executed May 12, 1986 by the City, Myakka and the Department, it was agreed among those parties that the Department would notice its change of position in its prehearing stipulation, which it did on May 23, 1986. The Department's prehearing stipulation filed on that date indicates its opposition to the City's applications.

      FINDINGS OF FACT

      
      

      1. The City currently operates a wastewater treatment plant providing "secondary treatment," and the effluent from that plant is discharged into Whitaker Bayou, an arm of Sarasota Bay. The Federal NPDES Permit and State Temporary Operating Permit for the wastewater treatment plant require the City to cease this discharge by July, 1988 due to pollution problems in the Bay, but the specific means through which this must be accomplished is not specified in the NPDES or Temporary Operating Permit. Any emergency discharge into Whitaker Bayou after July, 1988 would be violative of both state and federal- permits.

         
         

      2. On August 14, 1984, the City applied to the Department for a permit (File No. 58-0912689) for the following activities in the waters of the state in connection with the development of a 2,462 acre site as a wastewater spray irrigation facility; (1) the construction of a 36" diameter pipeline approximately 16 miles long from the existing wastewater treatment plant to the proposed sprayfield site with a total of 13 wetland crossings;

         (2) the construction of a wastewater retention pond; (3) the construction of a center pivot spray irrigation and underdrain system based on 15 center pivot points; (4) the creation of mitigation wetland areas of 20 acres; 33 acres, 72 acres, 27 acres and 46 acres: (5) the construction of a weir across East Ditch with an invert elevation to the top of the weir crest set at 34.5 feet to retain water in the existing on-site marsh system; (6) the construction of three other weir structures to control the run-off from the mitigation wetlands to East Ditch with crest elevations of 38.0 feet in the Northernmost area and two at 34.0 feet in the Southeast corner of the site, and one at

         26.0 feet in the Southwest corner of the site with a crest elevation of 26.0 feet to control the run off to Howard Creek;

         (7) rerouting East Ditch 500 feet to the East; (8) rerouting Howard Creek and East Ditch into Vanderipe Slough through a new ditch with a berm; (9) closing the connection from Vanderipe Slough to the Myakka River; (10) replacing the existing double 30" culverts with a triple 60" culvert for the drainage crossing of the Florida Power and Light right-of-way through Vanderipe Slough; (11) the construction of a system of two-lane, shell-bed service roads on the project site with culverted wetland crossings; (12) dredging approximately 3,363,775 cubic yards of material and; (13) filling with approximately 1,578,850 cubic yards of material. This application, as well as plans and specifications, was prepared by a professional engineer, registered in Florida, and was deemed complete on May 1, 1985.

         
         

      3. On November 1, 1984, the City applied to the Department for a permit (File No. DC58-095055) to construct improvements to the wastewater treatment plant, a wastewater transmission line and a wastewater spray irrigation facility. This application was certified by a professional engineer, registered in Florida, as were plans and specifications. These facilities will permit the City to spray-irrigate 13 million gallons a day of chlorinated effluent and to discharge the effluent from sprayfield underdrains to on-site wetlands for further treatment. Surface run-off from these wetlands will flow into Howard Creek and East Ditch. This application was deemed complete on May 28, 1985.

         
         

      4. On January 24, 1985, the City filed with the Department a Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). The Petition requests alternative criteria for Class III dissolved oxygen and nutrient standards in the on-site wetlands, which would receive a wastewater discharge from the sprayfield underdrains.

         
         

      5. Bishop and Kehn filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689) and the Petition for An Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). Sefton and Peters filed petitions with the Department challenging the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka filed petitions with the Department challenging the application for a permit to construct wastewater treatment plant improvements, the wastewater transmission line and the wastewater spray irrigation facility (File No. DC58-095055) and the application for a permit for activities in the waters of the state (File No. 58-0912689). Myakka also filed a petition to intervene in the challenges filed by Bishop and Kehn to the Petition for an Exemption to Provide for the Experimental Use of Wetlands for Low Energy Water and Wastewater Recycling (File No. VE-58-206). In its prehearing stipulation filed on May 23, 1986, the Department noticed its change of position and intent to deny the City's applications. By separate stipulation executed May 12, 1986, following a status conference, the City and Myakka acknowledged that the Department would change its position in these proceedings, and would do so in the context of its prehearing stipulation. A formal administrative hearing to consider these matters was conducted from May 27 to June 5, 1986, at which

         evidence from the parties as well as public testimony was received.

         
         

      6. The City of Sarasota has proposed to expand and improve its sewage treatment plant from its present approved capacity of

         9.1 million gallons per day (MOD) to an average daily flow of 13 MGD, with a peak capacity of 25 MGD. The City estimated it will not reach an average daily flow of 13 MGD until after the year 2000, although currently peak flow does reach 13 MGD.

         
         

      7. A transmission line is proposed for construction from the expanded sewage treatment plant, using city easements, to a city-owned parcel located in the eastern portion of Sarasota County. The parcel was acquired in 1981. The transmission line will be constructed underground using thirty-six inch force main, will cover a distance of approximately sixteen miles. and is designed to carry an average daily flow of 13 MGD. Effluent will be pumped through the transmission line from the treatment plant to the city-owned parcel. The line will not intersect water or storm mains, will not cross any canals or waterways subject to maintenance dredging, and will not allow for the introduction of stormwater or other sources of wastewater.

         
         

      8. The city-owned parcel which will be at the end of the transmission line was formerly known as the Hi-Hat Ranch. It is an area consisting of 2,462 acres which is currently comprised of wetlands, wooded hammocks and uplands used for cattle grazing, and is located fourteen miles east of the City of Sarasota and two miles south of Highway 780. The parcel has been fertilized to some extent in the past, although the amount and frequency of application has not been established. The City proposes to construct a spray irrigation project on the site to dispose of effluent from its sewage treatment plant. Myakka River State Park is located to the east of the proposed spray site a residential area known as Myakka Valley Ranches Subdivision is located to the south: and Vpper and Lower Lake Myakka, the Myakka River, and Vanderipe Slough are located

         south-east of the proposed spray irrigation site. East Ditch runs through the east side of the parcel and Howard Creek parallels the western boundary.

         
         

      9. Surface and ground water presently flows from the proposed spray site to the south-southwest into Howard Creek, a class III water body, and to the south-southeast into East Ditch, a class III water body, which then converge and flow into Vpper Lake Myakka, a class I water body and a designated Outstanding Florida Water. From Upper Lake Myakka, water flows

         into Vanderipe Slough, a class III water body, and Lower Lake Myakka; a class I water body and Outstanding Florida Water, via the Myakka River.

         
         

      10. The geologic materials presently found at the Hi-Hat Ranch Site are sedimentary in origin and consist of sands, silts, sandy phosphatic clays and limestone.

          
          

      11. There are 343 acres of natural herbaceous wetlands on the site, but only 140 acres have been determined by the Department to be "jurisdictional." Herbaceous wetlands are more sensitive to changes in water and nutrient levels than hardwood wetlands. The natural wetlands serve as fish and wildlife habitat, recharge areas, and as assimilation areas for nutrients. The proposed project will preserve 96 acres of natural wetlands on the East Ditch and create a total of 196 acres of artificial or mitigation wetlands. In order to provide the necessary degree of wetland treatment for the applied effluent, 150 acres of these mitigation wetlands, along with the

          96 acres of preserved natural wetlands, for a total of 246 acres of mitigation and natural wetlands, will be utilized for treatment as part of the spray irrigation project. Plant communities on-site will be substantially and adversely altered in creating the mitigation wetlands, and this will alter wildlife habitat presently associated with the natural wetlands on-site. It was not established that wildlife presently on-site will be able to survive the project's affects and remain on- site.

          
          

      12. The City proposes to construct a spray irrigation project on the Hi-Hat Ranch property to dispose of sewage effluent. The project will consist of a holding pond into which effluent will initially flow from the transmission line, a pump station to transmit the effluent from the holding pond to the sprayfield where it will be sprayed on fifteen spray sites, an underdrain system under the spray sites to carry water that has filtered through the soils to drainage ditches which will then carry the water to four of five artificial or mitigation wetland areas on the site. As indicated above, a total of 246 acres of mitigation and natural wetlands will be utilized to provide the necessary degree of wetlands treatment for the applied effluent. From the wetlands areas, the flow will be discharged into Howard Creek and East Ditch. After intersecting East Ditch, a diversion of Howard Creek is proposed so that it will flow directly into Vanderipe Slough, instead of its current course into the Myakka River State Park and Upper Lake Myakka.

      13. (a) The proposed holding pond will encompass 120 acres and consist of three cells. Its design is based on the City's review of 72 years of climatological data to determine the greatest number of consecutive days that rainfall will prevent spraying. Its purpose will be to store wastewater initially entering the site from the transmission line prior to being pumped to the spray fields, and to even out surges in this in- flow. Additionally, some nutrient removal will take place through volatilization and settling.

          
          

          1. Test soil borings of the holding pond site, excluding its eastern side, indicate that a natural clay layer, along with additional clay to be placed on site, will form a barrier layer under the holding pond and thereby result in a minimal average permeability rate of .03 inches per day. Insufficient borings were done in the northeastern part of the holding pond to make a determination of permeability.

             
             

          2. There will be one large cell to allow a longer detention time of 8 1/2 days at 13 MGD, and two smaller cells with a detention time of 4 1/3 days each at 13 MGD. In-flow of effluent from the transmission line will be alternated among the cells depending on the rate of flow and the water level in the cells. Each cell is designed to retain two feet of water at all times to discourage mosquitos and aquatic weeds, with a designed maximum depth when in use of eight feet. The maximum operating capacity of the holding pond is approximately 220 million gallons, which represents approximately 17 days of flow from the treatment plant at 13 MGD assuming no rainfall into the pond during this time.

             
             

          3. In the event that the holding pond is at maximum capacity and can accept no more effluent, the City proposes to either divert the effluent for discharge into Whitaker Bayou, or to spray directly onto the spray fields, by passing the holding pond.

             
             

          4. The holding pond is designed with walls that will have an additional three feet elevation over the designed maximum water depth of eight feet. but there is a potential for overflow if water depth exceeds eight feet. If the holding pond were to be filled to the top of the side walls, it would then, hold four hundred million gallons of effluent. No emergency discharge device has been provided in the design of the holding pond, although it is required by the Department's Land Application Design Manual.

          5. A potable water well will be placed onsite within 500 feet of the holding pond, although such placement is prohibited by the Land Application Design Manual.

          
          

      14. (a) Effluent will be pumped to the fifteen spray sites from the holding pond using a pumping station located next to the holding pond and a distribution system connected to fifteen center pivot irrigation systems. The pump station has a design capacity to pump 13 MGD of effluent in 16 hours.

          
          

          1. Effluent will alternately be sprayed on the fifteen sites by means of a rotating, center pivot spray. The system is designed to average 2.6 inches of spray per week on each spray site. The Department's Land Application Design Manual requires that no more than 2 inches be sprayed per week.

             
             

          2. A crop of Coastal Bermuda grass, supplemented with winter rye, will be grown on each spray site. An underdrain system will be installed under each spray site to receive sprayed effluent that has filtered through the soils, and to maintain the water table at three feet, which will be below the root system of the Bermuda and rye grasses and thereby provide proper soil conditions and aeration for root growth. The fifteen spray sites will encompass a total area of 1,296 acres.

             
             

          3. The City has not provided the Department with an operational plan for the sprayfield to address loading and resting periods, harvesting periods and the spray rotation schedule. It has not been established by competent substantial evidence that the City can operate the sprayfield to allow in the same operation harvesting of the grass crop, drying of the mitigated wetlands, prevention of soil saturation and sheet flow of effluent during rainfall events and maintenance of the hydrologic balance of the system.

          
          

      15. An underdrain system will be constructed using perforated polyester piping enveloped in a fabric and surrounded by course sand. The piping will be spaced between 75 and 150 feet apart. It is designed to receive 13 MGD while maintaining the three foot water table.

          
          

      16. The underdrains will empty into a series of ditches located throughout the project site which will then carry the effluent, along with rain water runoff to four of the five mitigation wetlands. The fifth mitigation wetland and natural wetlands remaining on-site will receive stormwater runoff only. Additionally, sheet flow will occur in an area composed of

          wetlands and upland vegetation along East Ditch. A five year storm was considered in the design of culverts in the ditches receiving underdrain discharge.

          
          

      17. (a) The City proposes to construct the mitigated wetland areas to replace natural wetlands that will be destroyed in the preparation and construction of the spray irrigation project. All of the mitigation wetlands will be marsh habitats, but a non-marsh, woody wetland will be destroyed in the area of the holding pond which will therefore not be mitigated.

          
          

          1. Some effluent treatment will take place in the mitigated wetlands which will also serve to control the flow of effluent and runoff leaving the project to the southwest, south and southeast. The mitigated wetlands have been designated for a 24 hour storm event that would be expected to occur once in 25 years.

             
             

          2. A system of ten foot wide wooden weirs with inch notches will be used to control the flow of water through the mitigated wetlands. Wooden boards will be placed in the notches to regulate the flow, but it has not been shown that the hydroperiods or detention times of the pre-construction natural wetlands will be duplicated in the mitigated wetlands. It appears that the detention time necessary for effluent treatment is inconsistent with the natural wetland hydroperiods.

             Currently the natural wetlands on site are dry for periods throughout the year: however, the mitigated wetlands are designed to have a constant two foot minimum depth and there are no plans to periodically and regularly draw-down the mitigated wetlands.

             
             

          3. Construction of the mitigated wetland areas will take several weeks, during which time vegetation presently on site will be removed by excavation, the land dried and contoured, berms constructed, and a mulching technique will then be used in an attempt to replace vegetative species found in the natural wetlands. However, testimony shows that a mulching technique is only successful if it is completed in two to three weeks, including establishment of a correct seasonal hydroperiod, and also only if a weed control program is carried out for two years. In this case it is unlikely that construction and mulching could be completed in three weeks, and the City has note proposed an effective weed control program.

             
             

          4. Berms to be constructed along the southern and western end of the project site around the mitigated wetlands will be

             ten feet in width at their top and approximateIy three feet above existing grade, or approximately eight feet above the bottom of the mitigated wetland: they will be constructed of clay and sand materials found on site. Reasonable assurance has not been given that the berms as designed will prevent uncontrolled runoff of water to neighboring land to the south and west of the project site.

             
             

          5. It has also not been shown with reasonable assurance that the mitigation wetlands will replicate plant zonation or community, or the type, function or form of all existing natural wetlands to be destroyed.

             
             

          6. Finally, reasonable assurance has not been given that the project will preserve a large hardwood swamp, primarily pop ash, on the eastern half of the site, or that an oak hammock in the northeast corner of the site will be saved from flooding as a result of the project.

          
          

      18. Flows leaving the mitigated wetlands will empty into Howard Creek and East Ditch. Culverts at the outfalls into Howard Creek and East Ditch were designed using a 25 year, 24 hour storm event. These water bodies are currently clear flowing with no algae. The rate of flow through Howard Creek and East Ditch varies currently from a slight trickle to flood conditions due to seasonal rainfall variations. The spray irrigation project will increase the flow into Howard Creek and East Ditch in low flow conditions. The City contends the project should reduce storm discharges and nutrient loading into these water bodies when it is operating under design conditions, but this has not been established by competent substantial evidence.

          
          

      19. The areas of Howard Creek, East Ditch and Vanderipe Slough which the City seeks to use in the project are privately owned or state property. The City currently has no legal interest in, or authority to use: the privately owned areas of Howard Creek in Myakka Valley Ranches Subdivision (MVRS) for transmission of its discharge from the spraysite to the Howard Creek diversion inside Myakka River State Park: the privately owned areas and drainage way of East Ditch in MVRS for effluent transmission from the spraysite to the Howard Creek diversion inside Myakka River State Park: any portion of Myakka River State Park as part of its wastewater disposal program: or the privately owned areas of Vanderipe Slough for which it seeks permits for the transmission and treatment of sewage effluent.

      20. The City proposes to remove a dike, constructed almost fifty years ago, which currently prevents Howard Creek from flowing directly into Vanderipe Slough, and divert the Creek from its present course which is into Upper Lake Myakka. This would restore the natural course of the Creek into the Slough, and eliminate any flow from the Creek into Upper Lake, by constructing a berm between the Creek and Upper Lake within the state park. However, this diversion would destroy a pop ash swamp, some of which is inside the state park, and no mitigation is proposed for this loss. The City has not established that the flow lost by this diversion will not adversely affect water quality of Upper Lake Myakka, or wetlands in the state park.

          
          

      21. Vanderipe Slough encompasses an area of approximately

          500 acres, a portion of which is within the Myakka River State Park, and is therefore an Outstanding Florida Water. At various times of the year, depending upon seasonal rainfall, it is dry to a significant extent, or else is completely flooded such that it overflows Shep's Island and joins with the Myakka River as they flow into Lower Lake Myakka. It is a nutrient limited system with substantial vegetative matting in normal flows. Large areas of the Slough are herbaceous wetlands. The project will cause more water to flow into the Slough in low and medium flow conditions, and under high flow conditions there will be at least as much flow into the Slough as at the present. Water carrying the entire nutrient load of Howard Creek and East Ditch will enter the Slough through a channel that will be cut in its northern end, and will then flow southward at a relatively slow velocity, with a detention time in the Slough of approximately

          2.8 days. Channelization or scouring in the Slough will not occur under design conditions due to this relatively slow flow velocity. Flow velocities will be greater through the artificial channel and rip-rap will be used to avoid scouring at this point of entry into the Slough.

          
          

      22. Approximately 280 acres of Vanderipe Slough will be regularly, and almost continuously, inundated after the project. Under high flow conditions from 400 to 500 acres will be inundated. Nitrogen levels will increase and be converted to usable forms, with a resulting increase in plant growth and decrease in dissolved oxygen content of the water. This is reasonably expected to cause and contribute to existing water quality violations in the Slough, and alter its use as a wildlife habitat to a more aquatic habitat due to increased water levels.

      23. Several obstructions or hindrances to the flow of water through the Slough currently exist. These include culverts thirty and forty-two inches wide, which the City proposes to replace with three sixty inch culverts, and berms two to three feet above the Slough floor which are six to ten feet in width. The City has not proposed removal or modification of all obstructions to flow through the Slough.

          
          

      24. Elevations in the area range from approximately twenty feet above sea level at the sewage treatment plant, with a twenty foot rise along the transmission line to an average elevation of approximately forty feet at the project site, to an elevation of approximately thirteen feet at the present dike which diverts Howard Creek directly into Upper Lake Myakka. Elevations along the eastern edge of Myakka Valley Ranches average twenty feet. Howard Creek falls sixty Eeet in elevation from a point ten miles upstream to the point at which it presently enters Upper Lake Myakka. There is no set back along the southern edge of the property to protect property owners from excessive groundwater flows from the project site which could occur in flood conditions. Sheet flow from the site to other property is likely to occur if watertables in the sprayfield are raised above three feet due to spraying, rainfall or increased groundwater levels.

          
          

      25. Several Petitioners and members of the public who testified expressed concern about increased flooding and stormwater runoff as a result of the project. The addition of the City's discharge from the sprayfield will impair and adversely affect drainage of property in Myakka Valley Ranches Subdivision through East Ditch, Howard Creek and Vanderipe Slough, and will reasonably be expected to cause flooding. Wetland areas on the eastern boundary of the site may also overflow and discharge into the state park. There is no competent substantial evidence that the City will control increased mosquito populations which will result from flooding and which may cause a health problem and adversely affect the use of these water bodies for recreational and conservation purposes.

          
          

      26. Security around the spray field site will be provided by three strands of barbed wire on the east, west and north sides of the parcel. On the south side next to Myakka Valley Ranches Subdivision, a six foot high hog wire fence with three strands of barbed wire above it will provided. Gates at all entrance points will allow for locking. The property will also

          be posted with "no trespassing" signs. This does represent adequate restriction of public access to the site.

          
          

      27. There was extensive testimony concerning the current water quality and nutrient levels existing on the project site and surrounding water bodies, and the affect of this spray irrigation project on existing wetlands and surrounding waters.

          
          

          1. In its initial application, the City predicted effluent leaving the treatment plant would contain 12.4 mg/1 nitrogen. In fact, the current average concentration of nitrogen in effluent leaving the plant is 20 mg/1. The stronger concentrations in the City's effluent will continue after completion of the project. Effluent leaving the plant will have achieved basic disinfection, with 90 per cent or more of the Biological Oxygen Demand (BOD) and Total Suspended Solids (TSS) having been removed prior to discharge into the holding pond. Basic disinfection produces effluent containing up to 200 colonies of fecal coliform per 100 ml.

             
             

          2. Chlorine contact in the transmission line will reduce bacteria and viruses in the effluent entering the holding pond, but fecal coliforms will still be present in the effluent on- site.

             
             

          3. Total nitrogen in the holding pond effluent will be volatized, assimilated and absorbed to a degree in the sprayfields. However, the City has incorrectly concluded that the total nitrogen in the underdrain discharge will be in trace amounts, since its analysis began with incorrect assumptions about nitrogen loading from the plant, and also assumed excessive nitrogen uptake from sprayfield grass crops. Nitrogen concentration from the underdrains will be as high as three mg/l. At this level, the underdrain discharge will cause or contribute to new violations of water quality standards for nutrients and dissolved oxygen in the natural and mitigated wetlands.

             
             

          4. In order to determine if a particular wetland can assimilate nutrient loading, a water budget for that wetland must be prepared. The City has failed to provide adequate wetland water budgets from which it could be determined if the wetlands will assimilate nutrients since none of the water budgets proposed or relied upon by the City accounted for the addition of stormwater or groundwater flow onto the site from offsite.

          5. The discharge from the wetlands will introduce nutrients into waters of the state in Howard Creek, East Ditch, Vanderipe Slough and Lower Lake Myakka causing further nutrient enrichment of waters presently high in nutrient concentrations and sensitive to further concentrations and loadings. Sewage effluent will be the only water pollution source affecting these water bodies, for which the City has not sought site specific alternative criteria.

             
             

          6. The addition of discharge from the spraysite will result in a lowering of dissolved oxygen levels in Howard Creek and East Ditch causing new, or contributing to continuing, violations. These impacts on water quality will be measurable.

             
             

          7. Howard Creek, East Ditch, and Vanderipe Slough have existing dissolved oxygen violations, and the diversion of Howard Creek and East Ditch into the Slough will cause or contribute to existing DO violations in the Slough.

             
             

          8. The QUAL/2E Model, as used by the City in this case to predict post-project levels of dissolved oxygen, is not reliable because it is only appropriate for use in determining dissolved oxygen levels in a flowing riverine system, which this is not, and also because there was an insufficient data base.

             
             

          9. Separating the holding pond from the existing groundwater is a natural clay layer which will be pierced at some points by the excavation of the holding pond. This will allow seepage from the holding pond into the groundwater and the City has not shown that this seepage will meet primary and secondary drinking water standards.

          
          

      28. Various endangered species are now found in Vanderipe Slough, and the project will adversely impact the habitat of these species which include woodstorks, bald eagles and Florida panthers.

          
          

      29. Residents of Myakka Valley Ranches, including the Petitioners and several members of the public who testified, currently use portions of Howard Creek, Upper LaXe Myakka and Vanderipe Slough for canoeing, fishing, birdwatching, camping, hunting, boating and picnicking, and the project will adversely impact on such use due to the introduction of effluent and nutrient loading into these areas, as well as the potential for flooding.

      30. Upper and Lower Lake Myakka and the Myakka River connecting these two lakes are all located in the Myakka River State Park, and are in state ownership. The City has not affirmatively demonstrated a net improvement to Upper Lake Myakka as a result of the Howard Creek diversion and the project. To the contrary, the City's use of the state park will adversely affect the conservation related uses of the state park, and recreational use of Upper Lake Myakka as it presently exists due to the elimination of boating access from Howard Creek.

          
          

      31. The City published notice of the Department's Intent to Issue the construction permit in the February 14, 1986 edition of the Sarasota Herald Tribune, a newspaper of general circulation in Sarasota County. The notice of Intent to Issue the application for a wetlands exemption was published in the June 21, 1985 edition of the Sarasota Herald Tribune. The notice of Intent to Issue the dredge and fill permit application was published in the January 16, 1986 edition of the Sarasota Herald Tribune. The only hearing provided for was the opportunity for this formal administrative hearing, but public testimony was received in this hearing.

          
          

      32. Myakka timely filed petitions under Sections 120.57(1) and 403.412(5), Florida Statutes, concerning the dredge and fill, and construction permit applications. The individual Petitioners timely filed petitions under Section 120.57(1), Florida Statutes, challenging the application for wetlands exemption since their petitions were filed on July 8, 1985, the first available business day after July 5, 1985, on which the Department's offices were closed; and which would otherwise have been the last day for filing such petitions. Myakka subsequently timely intervened in the individual Petitioners' proceeding under Sections 120.57(1) and 403.412(5), Florida Statutes. Myakka is a not-for-profit Florida corporation consisting of approximately 300 families who own property to the south of the project site. In addition, Myakka owns portions of Howard Creek which the City proposes to use to transmit effluent discharged from the project site, and also owns a conservation area immediately adjoining Myakka River State Park through which Howard Creek flows. This is used by residents and members, including the individual Petitioners, for recreational and conservation purposes. Myakka also has exclusive drainage rights for portions of East Ditch which the City proposes to use to transmit effluent from the spray site. The individual Petitioners are residents of Myakka Valley Ranches Subdivision whose homes and property abut the southern border of the project

          site, Howard Creek, East Ditch, Vanderipe Slough and the conservation area referred to above and who will therefore be substantially affected by the City's project due to its adverse affects on these water bodies and conservation area. Myakka has established that one of its main purposes and interests is to protect water quality, wildlife and other natural resources in Howard Creek, East Ditch, Vanderipe Slough, and Upper and Lower Lake Myakka.

          
          

      33. Sarasota County's local pollution control ordinance requires advanced wastewater treatment (AWT) which is: five milligrams per liter (mg/l) or less of Biological Oxygen Demand (BOD): five mg/1 or less of suspended solids: three mg/1 of total nitrogen as nitrogen: and one mg/1 of total phosphorous as phosphorous. The City's spray irrigation project is intended to achieve AWT prior to discharge into state waters but it has not been established by competent substantial evidence that it will meet this goal. Secondary treatment currently provided reduces the BOD and suspended solids concentrations in the effluent discharged into Whitaker Bayou to 20 mg/1.

          
          

      34. As applied for, the City's project places portions of several sprayfields and some of the mitigated wetlands within the 500 foot vegetated buffer zone which has been required for the spraysite by Sarasota County.

          
          

      35. (a) The findings of fact set forth above are made after considering the evidence introduced, as well as the qualifications, credibility and demeanor of all witnesses who testified.

1. Specifically, the expert testimony of the following witnesses was deemed particularly persuasive and credible: George T. Baragona, expert in hydrology William M. Kutash, expert in biology with special expertise in wetland biology, mitigation of natural wetlands, wetland hydroperiods and water quality impacts in state waters Larry Schwartz, expert in wetland ecology and wetland modeling David Bickner, expert in wetland ecology; and Jan Mandrup-Poulsen, expert in water quality modeling and analysis.

   
   

2. The testimony of Donald Deemer, who was recognized as an expert in sanitary engineering with special expertise is waste water treatment and land treatment of wastewater, was outweighed, rebutted and discredited through the testimony of Jan Mandrup-Poulsen and Paul Larsen, who was accepted as an expert in environmental engineering.

   
   

3. The testimony of Andrew Huggins, who was recognized as an expert in water quality modeling with special expertise in water chemistry, hydrology and ecology necessary to discuss modeling, was outweighed, rebutted and discredited through the testimony of Larry Schwartz.

   
   

4. Geroge Milton, who was accepted as an expert in civil and sanitary engineering with special expertise in wastewater treatment facility design and operation, as well as Douglas Taylor; Superintendent of the City's Treatment Plants, presented credible testimony concerning the City's sewage treatment plant, the proposed transmission line and design of the spray irrigation system.

   
   

5. John E. Garlanger, who was accepted as an expert in civil engineering and geology with special expertise in experimental and applied soil mechanics, soil exploration and testing, and land application of water and wastewater, testified regarding his recommendations about the holding pond and underdrains, as well as site soil characteristics: however, the weight given his testimony was lessened since he testified he was not familiar with the City's applications at issue in this case and also did not know if the project was designed consistent with his recommendation.

   
   

6. Donald Mauer, who was accepted as an expert in sanitary and civil engineering, testified about his design of the sprayfield, as well as his opinions regarding the treatment plant, transmission line and other off-site project activities: however, his rebuttal testimony lessened the weight given to his testimony generally.

   
   

7. The testimony of the following expert witnesses was considered but given less weight due to the witnesses' lack of site specific data, personal knowledge or experience on the site and conflicting testimony of other witnesses; Lloyd Horvath, who was accepted as an expert in hydrology and civil engineering with expertise in water resource modeling; Andre Clewell, expert in botany with special expertise in restoration of wetland habitats and aerial photo interpretation of vegetation; Eduardo Aguilar, expert in geology and groundwater hydrology: and Forrest Dierberg, expert in environmental chemistry with special expertise in wetland biology and chemical processes.

8. All additional testimony and evidence presented by the parties and through public testimony was considered and weighed in the preparation of these findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

   As a permit applicant, the City has the burden of proof regarding the approvals it seeks in these proceedings.

   Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

   
   

   The individual Petitioners, as well as Myakka, have established that they will be substantially affected by the spray irrigation project being proposed by the City and therefore have standing in this action. Additionally, they have established that their requests for hearing were timely filed. Sections 120.57(1), 403.412(5), Florida Statutes.

   
   

   Application for Wetlands Exemption (VE-58-206)

   
   

   The Department has the authority to grant exemptions from water quality criteria to provide for the experimental use of wetlands for low-energy water and wastewater recycling. Rule 17- 4.243(4), Florida Administrative Code. An applicant for such an exemption must establish that it is entitled to the exemption in accordance with the following provisions of Rule 17-4.243(4):

   
   

   1. To encourage experiments which are designed to lead to the development of new information regarding low-energy approaches to the advanced treatment of domestic, agricultural, and industrial wastes and to encourage the conservation of wetlands and fresh waters, the Secretary may, upon petition of an affected person, and after public notice in the Florida Administrative Weekly and in a newspaper of general circulation in the area of the waters affected, and after opportunity for public hearing pursuant to Chapter 120, Florida Statutes, issue an Order, for a period not

      to exceed five (5) years, specifically exempting certain sources of pollution which discharge into restricted areas of wetlands, as approved by the Secretary, from the water quality criteria contained in Section 17- 3.121, F. A. C., provided that:

      
      

      1. the discharqer affirmatively demonstrates that the wetlands ecosystem may reasonably be expected to assimilate the waste discharge without significant adverse impact on the biological community within the receiving waters: and,

         
         

      2. granting the exemption is in the public interest and will not adversely affect public health or the cost of public health or other related programs and,

         
         

      3. the public is restricted from access to the waters under consideration; and,

         
         

      4. the waters are not used for recreation: and,

         
         

      5. the applicant affirmatively demonstrates that presently specified criteria are unnecessary for the protection of potable water supplies or human health: and,

         
         

      6. the exemption will not interfere with the designated use of contiguous waters; and,

         
         

      7. scientifically valid experimental controls are provided by the applicant and approved by the Department to monitor the long-term ecological affects and waste recycling efficiency.

      
      

   2. The Petitioner shall affirmatively demonstrate those standards which the Petitioner believes more appropriately apply to the waters for which the exemption is sought.

   3. The Secretary shall specify, by Order, only those criteria which the Secretary determines to have been demonstrated by the preponderance of competent substantial evidence to be more

      appropriate.

      
      

   4. The Department shall modify the Petitioner's permit consistent with the Secretary's Order

(Emphasis supplied.).

The City has failed in its burden to demonstrate that the wetlands ecosystem associated with this project may reasonably be expected to assimilate the project's waste discharge without significant adverse impact on the biological community within receiving waters. To the contrary, granting the exemption would cause or contribute to violations of Class III water quality standards in Howard Creek, East Ditch and Vanderipe Slough. It has also not been shown that the project will not result in a significant degradation of Vanderipe Slough and Lower Lake Myakka, Outstanding Florida Waters, due to nutrient loading. There has been no demonstration that downstream Class I waters will be protected, and in fact, it has been shown that the project will interfere with contiguous waters. The City has not proposed scientifically valid experimental controls to monitor ecological affects and waste recycling efficiency of the project. Based upon this it can be concluded that the City has failed to establish that this project is in the public interest. Finally, it has not been established by evidence presented at the hearing that notice of this application, or the Department's intended action was ever published in the Florida Administrative Weekly. Therefore, the City has failed to meet the requirements of Rule 17-4.243(4), above, and thus is not entitled to a wetlands exemption.

Application for Construction Permit (DC58-095055

The Department has permitting jurisdiction over wastewater treatment plant improvements and effluent transmission and disposal systems. Chapter 403, Florida Statutes, and Rules 17- 4.07, 17-4.242, 17-4.245, 17-6.060, 17-6.080, and 17-6.140,

Florida Administrative Code. It has not been established that the City's project is exempt from the permitting process.

Therefore in accordance with Rule 17-6.040(4)(q), the City must

establish that its project meets the Department's standards for design and performance set forth in its publication, "Land Application of Domestic Wastewater Effluent in Florida," including reasonable assurance that:

1. The spray irrigation system can function as a slow-rate irrigation system with parts of the sprayfield removed from service for several months each year as a result of maintaining the necessary hydroperiod in the wetlands;

   
   

2. An emergency discharge device has been provided from the holding pond:

   
   

3. There are adequate storage capacity and operational plans for the holding pond:

   
   

4. There is an adequate compliance monitoring plan for the sprayfield, underdrain and wetland discharges: and

   
   

5. The mitigation wetlands system can be constructed and operated to be an integral part of the disposal system.

Pursuant to Rule 17-6.060(2), the City must also provide reasonable assurances that surface water discharge from the project would meet Water Quality-Based Effluent Limitations established by the Department for surface and groundwater disposal, and reasonable assurance that outfalls potentially discharging to water contiguous to Class I waters would meet the requirements of Rule 17-6.080(1)(c).

Additionally, the City must provide reasonable assurance that the project is clearly in the public interest, will not lower ambient water quality in Outstanding Florida Waters, and that existing water quality in such Outstanding Florida Waters would not be significantly degraded by discharges. Rule 17- 4.242(1)(a)2.b.

Finally, the City must establish that it has provided reasonable assurance that its proposed spray irrigation project will not cause or contribute to new violations of water quality standards or to the continuation of existing violations, pursuant to Rule 17-3.011(5).

The City has failed to demonstrate that a mitigation wetlands systems can be constructed and operated as an integral part of its disposal system since it has failed in its burden concerning the wetlands exemption. It has also failed to show that the sprayfields can be removed from operation several months each year to maintain wetland hydroperiods, that there are adequate operational plans for the holding pond, or that there is an adequate monitoring plan for the sprayfield, underdrains and wetland discharges. No emergency discharge device has been provided from the holding pond. For these reasons, the City has failed to meet the requirements of Rule 17-6.040(4)(q), above.

Reasonable assurances have also not been provided by the City that outfalls potentially discharging to waters contiguous to Class I waters will meet the requirements of Rule 17- 6.080(1)(c), or that the project is in the public interest and will not lower water quality in Outstanding Florida Waters, as required by Rule 17-4.242(1)(a)2.b. In fact, the project will cause or contribute to new violations of water quality standards or to the continuation of existing violations, contrary to Rule 17-3.011(5). Water quality standards in Rules 17-3.051, 17-

1. and 17-3.121, Florida Administrative Code, would be affected by the project's proposed discharge.

   
   

   Based upon the foregoing, it is concluded that the City has failed to establish its entitlement to a construction permit.

   
   

   Application for Dredge and Fill Permit (File No. 58-092689)

   
   

   The Department has permitting jurisdiction over dredging and filling activities occurring in waters of the state.

   Section 403.918, Florida Statutes, sets forth criteria for granting or denying such permits, as follows:

   
   

   1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

   2. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.

      
      

      1. In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:

         
         

         1. Whether the project will adversely affect the public health,

            safety, or welfare or the property of others;

            
            

         2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats

            
            

         3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling

            
            

         4. Whether the project will adversely affect the fishing or, recreational values or marine productivity in the vicinity of the project;

            
            

         5. Whether the project will be of a temporary or permanent nature;

            
            

         6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provision of s. 267.061 and

            
            

         7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

         
         

      2. If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or_ acceptable to the applicant to mitigate adverse effects which may be caused by the project. If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the department shall consider mitigation measures proposed by or acceptable to the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. Reclamation and restoration programs conducted pursuant to s. 211.32 may be considered as mitigation to the extent that they restore or improve the water quality and the type, nature, and function of biological systems present at the site prior to the commencement of mining activities. (Emphasis supplied.)

Since the City has not demonstrated its entitlement to a wetlands exemption, its efforts to mitigate the project's adverse effects with the use of mitigation wetlands cannot be pursued, and the exemption provided in Section 403.918(2)(b), Florida Statutes from dredge and fill criteria and water quality standards is therefore not applicable. The project does not meet the permitting criteria set forth in Section 403.918(2)(a), Florida Statutes, in that it will adversely affect fish and wildlife, including underground species, as well as vegetation between Howard Creek and Upper Lake Myakka, the recreational value-of the present Howard Creek intersection with Upper Lake Myakka, and the impact of the project on natural wetlands and water bodies will be of a long-term nature. The City has failed to provide reasonable assurance that water quality standards will not be violated, or that the project will clearly be in the public interest, due to resulting significant degradation of Outstanding Florida Waters, including Lower Lake Myakka and portions of Vanderipe Slough.

For these reasons, the City has not established its entitlement to a dredge and fill permit.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department enter a Final Order denying the City of Sarasota's Application for Wetlands Exemption (VE-58-206), Application for Construction Permit (DC-58-095055) and Application for Dredge and Fill Permit (File No. 58-092689).

DONE and ENTERED this 31st day of July, 1986, at Tallahassee, Florida.

DONALD D. CONN, 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 31 day of July, 1986.

APPENDIX

Rulings on Individual Petitioners' Proposed Findings of Fact.

1,2 Adopted in Finding of Fact 30.

1. Rejected since it is not based on competent substantial evidence.

   
   

2. Adopted in Finding of Fact 22.

   
   

3. Rejected since it is not based on competent substantial evidence.

   
   

4. Rejected as irrelevant.

   
   

5. Adopted in Finding of Fact 23.

8,9 Rejected as irrelevant and otherwise not based on competent substantial evidence.

1. Adopted in Findings of Fact 18, 24, 25.

   
   

2. Adopted in Finding of Fact 34.

   
   

3. Adopted in Finding of Fact 27.

   
   

4. Rejected in Finding of Fact 14. 14-17 Rejected as unnecessary and cumulative. 18,19 Adopted in Finding of Fact 14.

20 Rejected since it is not based on competent substantial evidence.

Rulings on Myakka's Proposed Findings of Fact.

1,2 Adopted in Finding of Fact 5.

1. Adopted in Findings of Fact 2, 3, 4.

   
   

2. Adopted in Finding of Fact 2.

   
   

3. Adopted in Finding of Fact 3.

   
   

4. Adopted in Finding of Fact 4.

   
   

5. Adopted in Finding of Fact 5.

   
   

6. Adopted in Findings of Fact 1, 7.

   
   

7. Adopted in Finding of Fact 7.

10-13 Adopted in Finding of Fact 19.

14-15 Rejected since they are not based on competent substantial evidence.

1. Adopted in Finding of Fact 19.

   
   

2. Adopted in Finding of Fact 7.

18,19 Rejected as irrelevant and unnecessary. 20-22 Adopted in Finding of Fact 1.

23,24 Rejected as irrelevant and unnecessary.

25 Adopted in Finding of Fact 1.

26-28 Rejected as irrelevant and unnecessary. 29-31 Adopted in Finding of Fact 33.

32-33 Rejected as irrelevant and unnecessary. 34-36 Adopted in Finding of Fact 9.

37,38 Adopted in Finding of Fact 14.

1. Rejected as irrelevant and unnecessary.

   
   

2. Adopted in Finding of Fact 14.

41,42 Adopted in Finding of Fact 13. 43-45 Adopted in Finding of Fact 14. 46-48 Adopted in Finding of Fact 13.

1. Rejected as irrelevant and unnecessary.

   
   

2. Adopted in Finding of Fact 13.

51-56 Rejected as irrelevant and unnecessary.

1. Adopted in Finding of Fact 13.

   
   

2. Adopted in Finding of Fact 27.

   
   

3. Adopted in Finding of Fact 24.

   
   

4. Rejected in Finding of Fact 2r 3.

   
   

5. Rejected since it is not based on competent substantial evidence.

62,63 Rejected as irrelevant and unnecessary.

64 Adopted in part and rejected in part in Finding of Fact 17.

65,66 Adopted in Finding of Fact 17.

1. Rejected as irrelevant and unnecessary.

   
   

2. Adopted in Finding of Fact 13.

   
   

3. Adopted in Finding of Fact 16.

   
   

4. Adopted in Finding of Fact 17.

   
   

5. Adopted in Finding of Fact 18.

   
   

6. Rejected as cumulative.

   
   

7. Rejected as irrelevant and unnecessary.

74,75 Adopted in Finding of Fact 13.

1. Rejected in Finding of Fact 26.

   
   

2. Adopted in Finding of Fact 13.

78-80 Rejected as irrelevant, unnecessary and otherwise not based on competent substantial evidence.

81 Adopted in Findings of Fact 11, 12.

82,83 Rejected as irrelevant and unnecessary.

84 Adopted in Finding of Fact-21.

85-87 Adopted in Finding of Fact 11.

88-91 Adopted in part in Finding of Fact 18, but otherwise rejected as unnecessary and cumulative.

92-95 Adopted in Finding of Fact 17.

96-97 Adopted in part in Finding of Fact 17, but otherwise rejected as unnecessary.

98-99 Adopted in Finding of Fact 17.

1. Rejected as irrelevant and unnecessary.

   
   

2. Adopted in Finding of Fact 27.

   
   

3. Rejected as irrelevant and unnecessary.

103-106 Adopted in Finding of Fact 27.

1. Adopted in Finding of Fact 6.

   
   

2. Adopted in Finding of Fact 27.

109,110 Rejected as irrelevant and not based on competent substantial evidence.

111 Adopted in part in Finding of Fact 17.

112-120 Adopted in Finding of Fact 27.

121-126 Rejected as unnecessary and cumulative.

127 Adopted in Finding of Fact 27.

128-130 Rejected as unnecessary.

131-168 Adopted in Finding of Fact 27.

1. Rejected as irrelevant and unnecessary.

   
   

2. Adopted in Finding of Fact 9.

   
   

3. Adopted in Finding of Fact 24.

172-174 Adopted in Finding of Fact 27.

176-179 Rejected as irrelevant, unnecessary, and cumulative.

180 Adopted in Finding of Fact 18.

181-184 Rejected as irrelevant, unnecessary, and cumulative.

1. Rejected as unnecessary.

   
   

2. Rejected in Finding of Fact 20.

187,188 Adopted in Finding of Fact 20.

1. Rejected as unnecessary and cumulative.

   
   

2. Adopted in Finding of Fact 21.

   
   

3. Adopted in Finding of Fact 23.

192,193 Adopted in Finding of Fact 27.

194 Adopted in Finding of Fact 25.

195-198 Adopted in Finding of Fact 20.

204-206 Adopted in Finding of Fact 21.

rejected as cumulative and not based on competent substantial evidence.

244-246 Rejected as cumulative and otherwise not based on competent substantial evidence.

265-267 Adopted in Finding of Fact 29. 268,269 Adopted in Finding of Fact 32.

1. Adopted in Finding of Fact 25.

   
   

2. Adopted in Finding of Fact 29.

   
   

3. Adopted in Findings of Fact 25. 29, 32.

   
   

4. Adopted in Finding of Fact 19.

   
   

5. Adopted in Findings of Fact 19, 29.

   
   

6. Adopted in Finding of Fact 29.

276,277 Adopted in Finding of Fact 25.

1. Adopted in Finding of Fact 22.

   
   

2. Rejected as irrelevant and unnecessary.

   
   

3. Adopted in Finding of Fact 25.

281-283 Rejected as irrelevant and unnecessary.

284 Adopted in Finding of Fact 29.

287,288 Rejected as unnecessary and otherwise not based on competent substantial evidence.

289-296 Rejected as irrelevant and unnecessary.

Rulings on City's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

   
   

2. Rejected as irrelevant.

   
   

3. Adopted in Finding of Fact 1.

   
   

4. Adopted in Finding of Fact 33.

18 Adopted in Findings of Fact 27, 33.

19-21 Adopted in Finding of Fact 27.

22-30 Rejected as irrelevant, unnecessary and otherwise contrary to Finding of Fact 27.

31 Rejected as not based on competent substantial evidence.

32,33 Adopted in Findings of Fact 2, 3, 7. 34,35 Adopted in Finding of Fact 6.

36-44 Rejected as unnecessary and otherwise not based on competent substantial evidence.

45-52 Adopted in Finding of Fact 7. 53-55 Rejected as unnecessary.

56-58 Adopted in Finding of Fact 8.

59 Rejected as irrelevant and unnecessary.

60-62 Adopted in Finding of Fact 8. 63,64 Rejected as unnecessary.

65 Adopted in Finding of Fact 11.

66-69 Rejected as irrelevant and otherwise not based on competent substantial evidence.

70-84 Adopted in Finding of Fact 13.

1. Rejected as irrelevant and otherwise not based on competent substantial evidence.

   
   

2. Adopted in Finding of Fact 13.

87-92 Adopted in Finding of Fact 27.

1. Rejected as unclear.

   
   

2. Adopted in Finding of Fact 27.

95-100 Adopted in Finding of Fact 14.

101 Rejected in Finding of Fact 14.

102-104 Adopted in Finding of Fact 14.

1. Rejected as irrelevant.

   
   

2. Adopted in Finding of Fact 15.

   
   

3. Adopted in Finding of Fact 13.

   
   

4. Adopted in Finding of Fact-16.

   
   

5. Adopted in part and rejected in part in Finding of Fact 27.

110,111 Rejected in Finding of Fact 27.

112 Rejected as irrelevant.

113-118 Rejected in Finding of Fact 27.

119,120 Adopted substantially in Finding of Fact 11.

1. Adopted in Finding of Fact 16.

   
   

2. Adopted in Finding of Fact 2.

   
   

3. Adopted in Finding of Fact 17.

124,125 Rejected as not based on competent substantial evidence and otherwise irrelevant.

126-130 Adopted in part in Finding of Fact 2. 16, but otherwise rejected as cumulative and unnecessary.

131-135 Adopted in part in Finding of Fact 17 but otherwise rejected as cumulative and unnecessary.

136-140 Rejected in Finding of Fact 17.

1. Rejected in Findings of Fact 11, 17.

   
   

2. Adopted in Finding of Fact 16.

143-148 Rejected in Finding of Fact 27 and otherwise unnecessary.

149 Adopted in Finding of Fact 27.

150,151 Rejected in Finding of Fact 27.

1. Adopted in Findings of Fact 17, 18.

   
   

2. Adopted in Finding of Fact 17.

   
   

3. Adopted in part and rejected in part in Finding of Fact 18.

155,156 Rejected in Finding of Fact 17.

1. Rejected as irrelevant and unnecessary.

   
   

2. Rejected in Findings of Fact 13, 14.

   
   

3. Rejected as irrelevant.

   
   

4. Rejected as irrelevant and otherwise not based on competent substantial evidence.

   
   

5. Adopted in Finding of Fact 26.

   
   

6. Rejected as unnecessary and cumulative.

163-165 Rejected as not based on competent substantial evidence.

166-169 Adopted in Finding of Fact 20.

170-173 Rejected as irrelevant, unnecessary and not based on competent substantial evidence.

1. Adopted in part and rejected in part in Finding of Fact 20.

   
   

2. Adopted in Finding of Fact 23.

   
   

3. Adopted in Finding of Fact 9.

   
   

4. Rejected in Finding of Fact 27.

178-188 Rejected in Finding of Fact 27, and otherwise irrelevant, unnecessary and not based on competent substantial evidence.

189,190 Adopted in Finding of Fact 18.

1. Adopted in Finding of Fact 9.

   
   

2. Adopted in Finding of Fact 20.

193-195 Rejected as unnecessary and otherwise not based on competent substantial evidence.

196 Adopted in Finding of Fact 9.

197-199 Adopted in Finding of Fact 21.

200,201 Rejected as irrelevant, unnecessary and not based on competent substantial evidence.

202-206 Rejected in Finding of Fact 27, and otherwise irrelevant and unnecessary.

207,208 Adopted in part in Finding of Fact 21.

209-217 Rejected in Findings of Fact 21, 22, 27, and otherwise irrelevant and unnecessary.

1. Rejected in Finding of Fact 21.

   
   

2. Rejected as irrelevant and not based on competent substantial evidence.

   
   

3. Adopted in Finding of Fact 9.

4. Rejected as cumulative and unnecessary.

222-224 Rejected in Finding of Fact 27. and otherwise irrelevant and unnecessary.

225 Rejected as unnecessary and not based on competent substantial evidence.

254,255 Rejected as irrelevant and otherwise not based on competent substantial evidence.

competent substantial evidence.

279-284 Rejected in Finding of Fact 32.

Rulings on the Department's Proposed Findings of Fact.

1 Adopted in Finding of Fact 5.

2,3 Adopted in Findings of Fact 2. 3, 4.

4 Adopted in Finding of Fact 7.

5-8 Adopted in Finding of Fact 9.

9 Adopted in Finding of Fact 21.

10-12 Adopted in Finding of Fact 1.

13 Rejected as irrelevant and unnecessary.

14,15 Adopted in Finding of Fact 33.

16-23 Rejected as irrelevant and unnecessary.

1. Rejected since this is a conclusion of law rather than a proposed finding of fact.

   
   

2. Rejected as unclear.

   
   

3. Adopted in Finding of Fact 14.

27-30 Adopted in Finding of Fact 13.

1. Adopted in Finding of Fact 26.

   
   

2. Adopted in Finding of Fact 17.

   
   

3. Rejected as speculative and not based on competent substantial evidence.

   
   

4. Adopted in Finding of Fact 24.

35,36 Adopted in Finding of Fact 13. 37,38 Rejected as unnecessary.

1. Adopted in Finding of Fact 14.

   
   

2. Adopted in Finding of Fact 13.

   
   

3. Rejected as unnecessary.

   
   

4. Adopted in Finding of Fact 11.

   
   

5. Adopted in part in Finding of Fact 17, but otherwise rejected as irrelevant and unnecessary.

   
   

6. Adopted in Findings of Fact 11, 12.

   
   

7. Rejected as unnecessary.

   
   

8. Adopted in Finding of Fact 16.

47,48 Rejected as irrelevant and unnecessary.

1. Adopted in Finding of Fact 17.

   
   

2. Rejected as irrelevant and unnecessary.

51,52 Adopted in Finding of Fact 17.

53-55 Rejected as cumulative and unnecessary. 56-59 Adopted in Finding of Fact 17.

1. Rejected as unnecessary and cumulative.

   
   

2. Rejected as irrelevant and unnecessary.

   
   

3. Adopted in Finding of Fact 17.

63,64 Adopted in Finding of Fact 20. 65-73 Adopted in Finding of Fact 17.

1. Adopted in Finding of Fact 22.

   
   

2. Rejected in Finding of Fact 20.

76,77 Adopted in Finding of Fact 21. 78-82 Adopted in Finding of Fact 22.

1. Adopted in Finding of Fact 8.

   
   

2. Rejected in Finding of Fact 8.

   
   

3. Adopted in Finding of Fact 21._

   
   

4. Adopted in Finding of Fact 27.

87,88 Rejected as a conclusion of law rather than a proposed finding of fact.

89,90 Rejected as unnecessary and cumulative. 91-93 Rejected as unnecessary.

94 Adopted in part in Finding of Fact 21.

95,96 Adopted in part in Finding of Fact 22.

1. Rejected as cumulative and unnecessary.

   
   

2. Adopted in Findings of Fact 21, 22.

99-103 Adopted in Finding of Fact 27.

1. Adopted in Finding of Fact 22.

   
   

2. Rejected as unclear.

   
   

3. Adopted in Finding of Fact 22.

107,108 Adopted in Finding of Fact 27.

109 Adopted in Finding of Fact 22..

122 Adopted in Finding of Fact 6.

123-136 Adopted in Finding of Fact 27.

COPIES FURNISHED:

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Greg D. Sefton

5781 Old Ranch Road Sarasota, Florida 34241

Edward P. de la Parte, Jr. Attorney at Law

705 East Kennedy Boulevard Tampa, Florida 33602

Ralph A. Kehn

Route 1, Box 74-170 Rockinghorse Lane Sarasota, Florida 34241

Wyatt S. Bishop Route 1, Box 74-203

Sarasota, Florida 34241

C. Anthony Cleveland, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Judith Kavanaugh, Esquire 2831 Ringling Boulevard Suite C209

Sarasota, Florida 33577

Dorisanna L. Peters 5793 Old Ranch Road Sarasota, Florida 34241

Docket for Case No: 85-002382

Orders for Case No: 85-002382