STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD GROVES, INC., and )

H & S GROVES, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 91-4177

) FLORIDA CITIES WATER COMPANY ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

) PARRISH PROPERTIES, INC., )

a Florida corporation; and )

PARRISH MANAGEMENT, INC., )

a Florida corporation and ) ATICO FINANCIAL CORPORATION, )

a Florida corporation, )

)

Petitioners, )

)

vs. ) CASE NO. 91-4178

) FLORIDA CITIES WATER COMPANY ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

) DAVID AND ELEANOR SHREVE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4179

) FLORIDA CITIES WATER COMPANY ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

BREVARD GROVES, INC., and )

H & S GROVES, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 91-5194

) FLORIDA CITIES WATER COMPANY ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled cases on November 12 through 15, 1991, in Melbourne, Florida and on February 4, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Kenneth G. Oertel, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road

Post Office Box 6507 Tallahassee, Florida 32314-6507

(Attorneys for Brevard Groves, Inc.,

H & S Groves, Inc. and David and Eleanor Shreve

Harry A. Jones, Esquire Evans, Jones & Abbott 750 Country Club Drive Post Office Box 2907

Titusville, Florida 32781-2907 (Attorneys for Parrish Properties, Inc., Parrish Management, Inc.,

and Atico Financial Corporation)

For Respondents: Kathleen Blizzard, Esquire

Richard W. Moore, Esquire Hopping Boyd Green & Sams

123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314

(Attorneys for Florida Cities Water Company)

Douglas MacLaughlin, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 (Attorney for the Department of Environmental Regulation)

STATEMENT OF THE ISSUES

On June 7, 1991 the Department of Environmental Regulation (DER) released its intent to issue Permit No. DC05-194008, authorizing Florida Cities Water Company (FCWC) to construct a 300-acre restricted public access spray irrigation system for the land application of treated domestic wastewater (Sprayfield Permit). And, on August 6, 1991 DER released its intent to issue Permit No.

MS05-194894, relating to stormwater management and management and storage of surface waters (MSSW Permit) for the sprayfield site.

Petitioners Brevard Groves, Inc. and H & S Groves, Inc. (Groves), Parrish Properties, Inc., Parrish Management, Inc. (Parrishes), Atico Financial Corp. (Atico) and David and Eleanor Shreve (Shreve), each requested a formal administrative hearing challenging the issuance of the sprayfield permit.

Groves requested a hearing challenging the issuance of the MSSW Permit.

The ultimate issue is whether FCWC is entitled to these permits.

PRELIMINARY STATEMENT

On August 1, 1991, upon motion by DER and without objection, the Hearing Officer consolidated the three challenges to the sprayfield permit (Case Nos. 91-4177, No. 91-4178 and No. 91-4179).

On July 30, 1991, FCWC and DER jointly moved to expedite the sprayfield permit cases. On August 12, 1991, FCWC and DER jointly moved to expedite and consolidate the MSSW permit case (DOAH No. 91-5194) with the previously- consolidated sprayfield permit cases. This motion was granted on August 28, 1991.

On September 26, 1991, Groves moved for a continuance due to its discovery that it had not been provided some DER files for the MSSW permit until September 24, 1991. This motion was opposed by FCWC and DER, and was denied at a telephone hearing held on September 30, 1991.

On October 21 and 22, 1991, FCWC filed motions to dismiss Petitioners for lack of standing. In the alternative, these motions sought to strike portions of the petitions related to diminution of property values, land use, alleged nuisances and aviation hazards caused by birds.

On October 29, 1991, Groves and Shreve filed a second motion for continuance due to their alleged inability to complete discovery because an FCWC witness was allegedly unprepared for deposition.

At a hearing on October 31, 1991 in Tallahassee, and by written Order of November 1, 1991, the Hearing Officer denied the Groves and Shreve motion for continuance. The Hearing Officer also denied FCWC's motions to dismiss and strike issues from the petitions, but held that diminution of property values and land use issues are not generally proper issues in permit proceedings such

as this and evidence on those issues presented as a basis to deny the permit applications would not be considered. (Order, November 1, 1991)

On November 5, 1991, Groves and Shreve filed a motion in limine to exclude evidence of water quality sampling at the project. On November 5, 1991, FCWC filed a motion to exclude Jeffrey Elledge, an expert witness for Groves and Shreve, due to inability to obtain reasonable discovery because this witness was revealed seven days prior to the hearing. On November 6, 1991, all parties jointly filed a prehearing stipulation. On November 7, 1991, FCWC filed a motion in limine to exclude evidence of alternative wastewater management techniques, other than the one proposed in the application for the Sprayfield Permit.

At the final hearing on November 12, 1991, and after oral argument, the Hearing Officer denied the Groves and Shreve motion to exclude the water quality sampling, without prejudice for a renewal of that motion later in the hearing.

The Hearing Officer also denied FCWC's motion to exclude Mr. Elledge's testimony, leaving open whether or not his testimony would be probative. Mr. Elledge was not provided as a witness at the hearing. The Hearing Officer granted FCWC's motion to exclude alternative wastewater management techniques, but ruled that testimony and evidence regarding the level of treatment required for the sprayed effluent would be considered.

On November 15, 1991, due to insufficient time remaining to complete rebuttal, the hearing was continued to February 4, 1992 without objection from the parties.

On January 30, 1992, FCWC filed a motion in limine to exclude the transcript of the deposition of Christianne Ferraro as evidence because she had testified at the hearing. This motion was denied by the Hearing Officer at the February 4, 1992 hearing.

FCWC presented seven witnesses in its direct and rebuttal cases: Larry L. Good, James E. Christopher, Dr. Robert S. Sholtes, Dr. Christopher M. Teaf, Dr. Harvey H. Harper, Noel Wamer and Dr. John Garlanger.

FCWC introduced the following exhibits, received in evidence: #1(a-i), 2(a-h), 3-7, 8(a-e), 10-12, 13(a-p), 14-18, 25, and 28-35.

DER presented two witnesses: Christianne Ferraro and John M. Bateman.

DER's two exhibits, #1 and #2, were received in evidence.

Groves and Shreve called five witnesses: Robert Oros, Bernard L. Golding, John A. Burnette, David G. Shreve, and J. P. Subramani. The following exhibits introduced by Groves and Shreve were received in evidence: #1, 10, 11(a & b), 18, 23, 27-30, 37, 40, 43-45, and 48. Exhibit #21 was marked for identification only and was rejected.

Parrishes and Atico called two witnesses at the hearing on November 15, 1991: J.J. Parrish, III and Douglas C. Bournique. The deposition of Richard Krause (president of Atico) was admitted without objection in lieu of testimony, but was not filed. A single exhibit was received in evidence as Parrish exhibit #1.

Three members of the public testified on November 15, 1991: George Koraly (9868 Riverview Drive, Micco, Florida), Wallace W. Kramer (9606 Mockingbird Lane, Micco, Florida), and Adaline B. Higgins (9685 Mockingbird Lane, Micco, Florida representing the Micco Homeowners and Friends of the Sebastian River).

Packets of petitions, photographs and pamphlets were received as public exhibits #1-5.

Proposed recommended orders were filed by Groves and Shreve, and by the Respondents. Findings of Fact proposed by FCWC and DER are substantially adopted herein. The attached appendix addresses the findings of fact proposed by Groves and Shreve.

FINDINGS OF FACT

1. FCWC is a private utility company, with headquarters at 4837 Swift Road, Suite 100, Sarasota, Florida, 34231. FCWC's Barefoot Bay Wastewater Treatment Plant (the WWTP) provides water and wastewater service to the Barefoot Bay development in southern Brevard County, Florida.

   
   

2. DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900, is an agency of the State of Florida which regulates domestic wastewater treatment and disposal facilities and permits their construction and operation. For domestic wastewater projects, DER is also charged with reviewing applications for stormwater management and management and storage of surface water pursuant to an operating agreement between DER and St. Johns River Water Management District.

   
   

3. David and Eleanor Shreve are beekeepers who live approximately a quarter-mile from the proposed sprayfield. They maintain beehives in the groves and woods surrounding the proposed site. The remaining Petitioners own citrus groves that are adjacent to, or in the immediate vicinity of the proposed site. These groves are producing and are actively maintained.

   
   

4. The WWTP has a treatment capacity of 0.9 million gallons per day (MGD). As of July, 1990, the WTTP was treating and disposing of effluent from approximately 4,200 residences in the Barefoot Bay development. At buildout, within the five-year life of the Sprayfield Permit, the WWTP will serve 5,000 residents, and will generate approximately 0.6 MGD of wastewater.

   
   

5. Disposal of treated effluent is presently achieved by a 40-acre sprayfield, storage ponds and direct discharge of pond overflow to the San Sebastian Drainage District Canal (Canal).

   
   

6. In 1986, DER issued FCWC a warning notice to the WWTP regarding an unlawful discharge to the Canal. FCWC met with DER to discuss options to correct the discharge. In 1988, FCWC entered a Consent Order that would allow FCWC to discharge treated effluent into the Canal until a deep injection well could be built for alternative disposal. FCWC also discussed other alternatives with DER, such as golf course irrigation. The Consent Order was amended in 1991 to provide for land application in lieu of deep injection. In accordance with the amended Consent Order, FCWC has submitted monthly monitoring reports to DER, for the WWTP and for the storage (percolation) ponds. DER has never issued a notice of violation to FCWC for failure to comply with monitoring in the Consent Order.

   The Site

   
   

7. The proposed sprayfield site is divided into two large tracts, the "northern parcel" and the "southern parcel." The site is primarily citrus groves. Although some citrus trees were damaged by a freeze in recent years, most are still viable. Most of the areas between the trees and limited areas without trees are covered with dense grasses and weeds.

   
   

8. The site, and the surrounding groves, have been significantly altered to provide sufficient drainage for citrus trees, which require well-drained conditions. The area is covered by shallow ditches (swales), between mounded rows of earth comprising beds for the trees. These citrus mounds, created by soil cast up during excavation of the swales, occur on 60-foot centers and rise

   2 1/2-3 feet above the bottom of the swales. The swales have pipes at each end, which discharge into an agricultural collection ditch or the Canal. Each block of citrus is surrounded by a collection ditch some 8-10 feet deep. All collection ditches ultimately discharge into the Canal, which borders the site on the north and is approximately 20 feet deep and 100 feet wide. The collection ditches and Canal prevent the entrance of offsite surface water run- off into the site and receive surface water run-off and groundwater seepage from the site.

   
   

   The Sprayfield Project

   
   

9. The project is proposed in two phases. Phase I meets total annual effluent disposal needs of 0.55 MGD, using both the proposed sprayfield and the existing 40-acre sprayfield, which will continue in operation for both phases of the project. Phase II meets the total annual effluent disposal needs of 0.6 MGD at build-out. This results in an average annual application rate of 0.54 inch/week or approximately 28 inches per year on the proposed sprayfield. The project is designed to eliminate the current discharge to the Canal.

   
   

10. The effluent will be given secondary treatment with basic disinfection. The treated effluent will be pumped from the WWTP to storage ponds and then to the proposed sprayfield. The existing ponds will be retrofitted as storage ponds for Phase I. An additional storage pond will be constructed at the proposed sprayfield for Phase II.

    
    

11. The spray irrigation system will operate primarily with four traveling gun sprinklers. Two sets of fixed-head sprinklers will also be used for the two small triangular portions of the site. The traveling sprinklers will be operated for approximately 5.9 hours/day during Phase I and 6.5 hours during Phase II. The four traveling sprinklers will run simultaneously on four of the thirty-three travel lanes (tracks) located between the swales covering the site. Ordinarily each track will be sprayed every eighth day. To make up for days when irrigation is not possible, additional disposal capacity can be obtained by operating the sprinklers for extra shifts on tracks not previously irrigated that day.

    
    

12. The site will be mowed regularly, and any accumulated grasses or debris will be removed. Any areas presently in weeds, or the areas not covered by vegetation are reasonably expected to fill in with dense grasses when irrigation commences. Maintaining the grass cover in the swales will prevent erosion of soil and debris into the swales and reduce the need for maintenance of clogged swale outlet pipes.

13. The system is designed and will be operated to avoid ponding or direct surface run-off of sprayed treated effluent. However, there may be some very limited potential for droplets of treated effluent clinging to vegetation being washed into the swales by a heavy storm event immediately following an application. Therefore, the sprinklers will not be operated when the water table is closer than four inches from the bottom of the swales. Operators will know when to spray by reading automatic groundwater elevation monitoring gauges installed in several places throughout each block of citrus, including the middle. In addition, an automatic device will shut off sprinklers during a rainfall, so that no significant amount of treated effluent will leave the site mixed with stormwater.

    
    

14. The site is bordered on three sides by groves and on one side by undeveloped vacant land. The width of the proposed buffer zone from the sprayfield wetted area to the site property line is at least 100 feet, as required in Rule 17-610.421(2), F.A.C., and is substantially wider for extensive lengths of the project border.

    
    

    The buffer is approximately 130 ft. wide on the eastern boundary of the northern parcel, approximately 250 to 235 ft. wide on the western boundary of the northern parcel, and approximately 225 to 160 ft. on the western border of the southern parcel. The distance between the wetted area and adjacent property owners' boundaries is much greater than 100 ft. for other portions of the sprayfield borders due to linear features that provide additional buffering. It is over 200 ft. from the wetted area to the nearest property owner on the northern border of the northern parcel because of the San Sebastian Canal, and

    160 ft. on the southern border of the northern parcel and the southern and eastern borders of the southern parcel because of the 60-foot wide Micco Road right-of-way.

    
    

    Aerosal Drift and Other Off-Site Impacts

    
    

15. While Petitioners allege that their groves would be contaminated by aerosol drift from the site, they presented no expert or other competent, substantial evidence on the extent or volume of such drift. FCWC air modelling expert, Dr. Robert Sholtes, used the EPA Industrial Source Complex Model (ISC), the most commonly used predictive model in the air pollution community, to evaluate the project's aerosol drift. While the sprinklers are planned to be operated a maximum 6.5-hour shift, a conservative 7.0-hour shift was used. Other data inputs to the ISC Model were hourly windspeeds at the Daytona Beach weather station for five years; sprinkler nozzle size and pressure; and droplet size, distribution and settling rates obtained from the American Society of Agricultural Engineers. The model yielded the annual average deposition of sprayed effluent in grams per square meter (gm/m2) outside the wetted area for one sprinkler as it moves along its track. The accumulated deposition off the site property line, considering operation of all tracks, can be predicted using

    these results. Because heavy deposition of droplets settles out fairly rapidly, the aerosol from tracks farther into the site does not significantly affect the maximum impact shown for one track. Due to the prevailing east and west coastal winds, heaviest deposition will occur off the eastern and western property line of the site.

    
    

16. The volume of treated effluent that will be blown offsite is not substantial. The greatest volume is approximately 1000 millimeters/square meter/year (ml/m2/yr) off the eastern property line out to approximately 50-75 feet, and 500 ml/m2/yr off the western property line out to approximately 75

    feet. A maximum of 100 ml/m2/yr is predicted and a maximum of 50 ml/m2/yr is predicted off the southern and northern lines, respectively.

    
    

17. In practice, volumes of aerosol drift off-site will be below the predicted levels in areas where trees occur in the buffers. Most significantly, there are existing rows of citrus trees along the eastern border of the northern parcel within the buffer area, which is the area of heaviest predicted drift.

    In addition, aerosol drift will be minimized by operating procedures. Wind speed and direction will be monitored at the site. If the wind is over 20 miles per hour, there will be no spraying. For winds of lesser speeds, the spray tracks on the edges of the sprayfield will not be used during a strong directional wind, e.g., for a wind blowing east, the track on the eastern border will not be utilized. The tracks are on approximately 240-foot centers.

    Therefore, elimination of spraying for the track on the edge of the site will have the effect of withdrawing the aerosol drift deposition pattern 240 feet further into the sprayfield. Considering that the farthest extent of the maximum 1000 ml/m2/yr levels of drift is 75 feet, such a program will be very effective in minimizing drift.

    
    

18. Because no motors will be required to operate the site, significant noise is not expected. The treated effluent will not contain significant amounts of odor-causing constituents, and odors are not expected. Finally, lighting is not planned on the proposed sprayfield, so this is not expected to be a source of offsite impact.

    
    

    Assurances for Proposed Application Rate

    
    

19. A determination of the site's ability to accept treated effluent at the maximum proposed application rate of 0.54 inch/week without adverse effects was based on (1) the hydraulic loading capacity of the site to receive the applied water, considering soil permeability and other physical site conditions, and (2) the allowable nitrogen loading rate, considering the ability of the vegetation to uptake the nitrogen contained in the treated effluent. The U.S. Environmental Protection Agency (EPA) publishes a general manual for technical assistance in designing land application systems across the United States. This manual, "Land Treatment of Municipal Wastewater - Process Design Manual" (EPA Manual), is cited as a general technical guidance source in DER Rule 17- 610.300(4), F.A.C. The EPA Manual contains formulae for the calculation of both the hydraulic loading capacity and the allowable nitrogen loading rate. The EPA Manual recommends use of the more restrictive of the hydraulic loading capacity or the allowable nitrogen loading rate as the hydraulic loading rate for the project.

    
    

20. Hydraulic Loading Capacity. A hydraulic loading capacity of 0.63 inch/week for the proposed sprayfield was determined based on field exploration, laboratory testing, hydrogeological conditions and engineering evaluation, summarized in a report included in the application. This 0.63 inch/week hydraulic loading capacity is above the maximum proposed application rate of

    0.54 inch/week and substantially below the maximum rate of 2 inches/week allowed by DER Rule 17-610.423(4), F.A.C.

    
    

21. EPA Equation 4-3 for hydraulic loading capacity balances the volume of water that enters the site with the volume of water that leaves the site.

    Values in Equation 4-3 are evapotranspiration, which is the water released to the atmosphere from soil surfaces and by vegetation (ET); precipitation rate (rainfall); and Pw, which is water removed by vertical percolation downward through the soils. Due to the high vertical permeabilities of the sandy soils

    at this site, unrefined use of EPA Equation 4-3 would give a very high hydraulic loading capacity for this project, on the order of 10 times that proposed by FCWC. Therefore, a more detailed input/output water balance formula was used to determine annual hydraulic loading capacity (applied effluent in the formula) of

    0.63 inch/week:

    
    

    rainfall + applied effluent + groundwater inflow = evapotranspiration, + groundwater outflow + surface run-off + evaporation + irrigation losses.

    
    

    The average annual rainfall, based on data from the U.S. NOAA weather station at Melbourne, is 48.17 inches. Due to the isolating effect of the deep ditches surrounding the site, groundwater inflow is considered to be so negligible that it was not assigned a value for the equation. ET, based on standard scientific references, is 45 inches/year for citrus trees. An additional 20 inches/year loss is attributable to grasses covering soil surfaces. In lieu of vertical percolation, groundwater outflow laterally through the surficial aquifer was projected to be 1.8 inches per year, based on hydraulic conductivity and soil permeabilities for the site. Surface run-off of stormwater was estimated to be 10 inches per year. Irrigation losses were estimated at 15% of the amount of applied effluent.

    
    

22. Pond Storage Capacity. The proposed application rates for the two phases of the project are annual averages. The volume of storage needed for occasions when conditions preclude application must be determined. DER requires the calculation of storage by analytical means for the 10-year rainfall recurrence interval, using 20 years of rainfall data, and accounting for all water inputs on a monthly basis, using site-specific data. A minimum storage volume equal to three days application is required. Rule 17-610.414 (2), F.A.C. Calculations presented in the application met these requirements and showed storage needs of 8.08 million gallons (MG), or approximately 15 application days' volume, for Phase I; and 15 MG, or 25 application days for Phase II. Additional storage calculations, reflecting the monthly variations of wastewater inflow due to the seasonal population, were prepared for Phase I. These calculations reflected the same storage requirements.

    
    

    Petitioners' Allegations Regarding Application Rate and Storage

    
    

23. Although they had prepared no analyses, performed no calculations, conducted no laboratory tests and undertaken only one field test (test hole for groundwater level), Petitioners' witnesses asserted that site conditions precluded successful operation of the sprayfield at the maximum proposed application rate of 0.54 inch/week. They asserted that swale pipes would plug and a clay "hardpan" at the bottom of the swales would prohibit percolation of stormwater. Thus, the swales would be full of water for long periods and further application would be precluded. They also asserted that significant volumes of treated effluent would leave the site as run-off. They alleged treated effluent would enter the swales directly from accumulation of spray and indirectly from seepage from the sides of the citrus mounds. Finally, Petitioners asserted 15 days of storage was inadequate because the site would be too wet for application for at least a month. FCWC presented testimony and evidence based on site reviews, numerous field and laboratory tests, computer modelling, and calculations that successfully refuted these allegations.

    
    

24. Petitioners' expert in grove management and local soil conditions, Mr. Burnette, stated that extremely wet conditions required pumping of swales for

    weeks at a time in nearby groves. FCWC's experts asserted that the proposed sprayfield site currently has, and will continue to have, under proper maintenance, much better drainage than Mr. Burnette's groves, where regular grading of swale inverts and herbicide applications denude soil and cause erosion which plugs pipes and backs up water in the swales. In addition, unlike the situation described in Burnette's groves, the proposed site contains no swales that are lower in elevation than the collection ditches, thereby facilitating stormwater run-off.

    
    

25. The top layer of soil comprising the citrus mounds and the swales is relatively clean sand. Petitioners' so-called "hardpan" is a slightly clayey to clayey fine sand layer which separates the upper sand from a thick layer of very clean, beach-type sand. FCWC geotechnical experts determined the clayey sand layer was 18 to 24 inches below the bottom of the swales. Without any field testing, Petitioners' expert hydrogeologist, Mr. Oros, asserted that the clayey sand layer was at the bottom of the swales. In contrast, Mr. Burnette stated that the clayey sand layer occurs four to eight inches below the bottom of the swales on the adjoining groves, where the graded swales are 10 to 14 inches deeper than the shallow swales on the proposed sprayfield site. Thus, Mr. Burnette's testimony supports the FCWC conclusion that this layer is found up to

    2 feet below the swales on the proposed site. Moreover, contrary to Petitioners' assertions that the layer acts as a "hardpan", water can pass relatively freely through it and the water table will not "perch" above it. The

    U.S. Department of Agriculture Soil Conservation Service (SCS) reports a permeability value for this soil type of one to 12 feet per day. Dr. John Garlanger, FCWC expert in subsurface investigation and soil mechanics, conducted a field inspection of the soil and reviewed grain size distribution analyses. He determined that the permeability of the clayey sand layer is about one foot of water per day. Petitioners' expert hydrogeologist concurred that the layer could have this permeability rate.

    
    

26. Soil is at the "wilting point" when its water content is too low for plants to transpire additional water. Soil is at "field capacity" when added water "fills up" the soil and it becomes saturated. The "water table" is the level at which the soil is totally saturated. Petitioners erroneously assert that 90% of the 0.54 inch of treated effluent will travel straight down to the water table. Instead, due to capillary action, the first foot of the sandy soil at the site can store about 0.6 inch of water between the wilting point and field capacity. If there is no rain between applications, 100% of the 0.54 inch will be transpired by vegetation out of the first foot of soil. This "resets" the soil moisture content to the wilting point in preparation for another application. If heavy rains cause the soil to remain at field capacity rather than returning to the wilting point through ET, the soil can still absorb up to

    2.25 inches of water per foot, or three-fourths to one inch of water per four inches of soil, before it reaches saturation. Therefore, even if the soil is saturated up to 4 inches below the swales, the top 4 inches of soil will still absorb the 0.54 inch of treated effluent without reaching total saturation or causing any run-off. If subsequent heavy rains saturate the remaining soil and raise the water table to the bottom of the swales, the excess rainwater which falls on the saturated surface will run off as stormwater, and most of the treated effluent will remain stored within the soil. Furthermore, because the water table is proposed to be measured at centers of the blocks where, due to distance from the drainage ditches, the water table is closest to the surface, soil storage capacity across the site will exceed these projected levels.

    
    

27. Petitioners' experts also asserted that if it rains after the 0.54 inch application, the groundwater will "mound" up below the citrus mounds,

    creating a hydraulic gradient or head differential (between the water table under the citrus mounds and the water table below the swales) sufficiently great to cause the treated effluent in the mound to flow toward the swales and seep into them from the sides of the citrus mounds. Mr. Golding admitted that such seepage would not occur when the groundwater table is below the bottom of the swales. Nevertheless, he opined that seepage of treated effluent would be considerable because he believed, based on opinion and experience alone, that the water table would be at the bottom of the swales or higher for at least 30 days straight in a "wet year."

    
    

28. FCWC's experts successfully refuted these assertions. A significant portion of the treated effluent falling onto the citrus mounds will be stored in the soil as described above. The treated effluent (only applied when water level is 4 inches below the swales) that actually reaches the water table will cause only a very slight "water mound" (only 2 inches in 30 feet) which will not produce any appreciable "head" or lateral flow to the swales. On only three occasions (a total of 8 days) during the wettest year in ten did the "water mound" rise above the bottom of the swales resulting in any groundwater seepage from the citrus mounds into the swales.

    
    

    Thus, during the entire wettest year in ten, less than one-half of 1% (0.12 inch of the approximately 28 inches) of annual applied treated effluent, very diluted with groundwater, might seep from the mounds into the swale.

    
    

29. Contrary to Petitioners' expert's assertion that the seasonal high water level (SHWL) was not provided by FCWC, this information was supplied in the application and was reaffirmed by calculations of Dr. Garlanger at rebuttal. The importance attached to the SHWL for this project was not adequately explained by Petitioners. FCWC experts explained that the SHWL is the average (NOT maximum) height of the groundwater during the two to six wettest months of the year. Because the water table varies throughout the year, it is the calculation of the position of the water table from month to month that is significant and is required by DER. This monthly changing water table was the basis of storage water balance calculations contained in the application. Even though the monthly storage calculation in the application meets the DER/EPA requirements, Petitioners' witnesses asserted that the application did not indicate how many days the water table would rise to four inches below the swales and thus how many days spraying was precluded and storage was required.

    
    

30. Dr. Garlanger analytically calculated the water table beneath the site, using Darcy's Law, and known parameters at the site, such as the depths of the ditches, the geometry and relative distances, and the thickness and permeability of the soil layers. Thus, although never required for any of the

    100 land application projects he has evaluated, Dr. Garlanger performed computer modelling and calculations to predict the daily level of the water table beneath the swales for both Phase I and II during the wettest year in ten. Water inputs in his model included treated effluent and daily rainfall from an actual year (1969) when rainfall reached the levels of the statistically wettest year in ten. Water losses were soil storage, ET, distribution losses, deep percolation and run-off. Treated effluent was not applied when the model predicted that the water table would be higher than four inches below the bottom of the swales and when there was significant rainfall (more than one-hundredth of an inch). This modelling predicted that 6.1 MG/11-day storage was needed for Phase I. Thus, the project as proposed has substantially more storage than needed, with a proposed 8.1 MG/15-day storage. The model produced similar results for Phase II, showing a total 10.1 MG/18-day storage need compared with the proposed 15 MG/25-day storage.

31. Petitioners also challenged various "irrigation efficiency" figures used by FCWC experts.

    
    

    All water leaving a water source, in this case the WWTP, does not reach the roots of the crops for which it is intended. "Irrigation efficiency" expresses this fact as the percentage of water pumped that is used by the vegetation. In the monthly storage water balance calculations the applicant used an "irrigation efficiency" of 70% of the total applied treated effluent, which is recommended in IFAS Bulletin 247 and in the USDA, SCS, "Florida Irrigation Guide"; 15% of the applied treated effluent was attributed to "irrigation losses" in the calculations in the application to determine the hydraulic loading capacity; and Dr. Sholtes stated that data he used indicated that 94% of "the water that came out of the nozzle reached the ground" within the wetted area of the site and the remaining 6% was aerosol drift and evaporation.

    
    

32. Petitioners' expert questioned whether an irrigation efficiency of 70%, 85% or 94% should have been used and suggested that the calculations should be redone. The expert misunderstood the terms, comparing the proverbial apples and oranges. With a 70% irrigation efficiency, 30% treated effluent is lost to the plants. Only a small portion of this 30% loss is attributable to aerosol drift and evaporation in the air. Most of the 30% treated effluent hits the ground but is still lost to the plants through evaporation of treated effluent intercepted on plant leaves, losses from the distribution system, e.g., leaky fittings at the WTTP, and percolation of water below the reach of plant roots. The "irrigation losses" (15%) in the application include all of those types of losses, except the treated effluent losses through percolation. This approximately 15% of the total treated effluent appeared as a separate value from "irrigation efficiency."

    
    

    Water Quality Assurances

    
    

33. Nitrogen Loading Rate. Because nitrogen is generally the constituent of most concern for sprayfields, EPA Equation 4-4, which is intended to produce a conservative result, projects nitrogen loading possible without exceeding the groundwater standard for nitrate.

    
    

34. Two FCWC experts calculated the allowable nitrogen loading rate. James Christopher, project engineer and expert in water quality and chemistry, adjusted the EPA equation to reflect stormwater leaving the site, which is a more technically correct refinement of the equation and has the effect of lowering the allowable rate.

    
    

    A "U value" (the variable for rate of nitrogen uptake by crop)of 100 kilograms/hectare/year (kg/ha/yr) was used by James Christopher.

    
    

35. Dr. Harvey Harper, another FCWC water quality expert, an environmental engineer, who has taught numerous university courses in wastewater treatment and has been involved in scientific studies of pollution removal, also calculated the nitrogen loading rate for the annual average rainfall and the wettest year in ten. He did not adjust EPA Equation 4-4 for stormwater run-off, because Petitioners had questioned any deviations from the formula. He used a U value of 150 kg/ha/yr, because he considered a value of 100 too low to be realistic. He used the highest nitrogen value in data from the WWTP. Other values he used in the equation were nearly identical to those of Mr. Christopher. The results were an allowable nitrogen loading rate of 0.75 inch/week for a year of average rainfall and 0.93 inch/week for the wettest year in ten. These rates are

    substantially higher than the proposed gross hydraulic loading rate of 0.54 inch/week.

    
    

36. Petitioners' expert, Dr. J. P. Subramani, asserted that a U value of 0 kg/ha/yr should have been used, although he admitted that a site with a U value of 0 kg/ha/yr would be bare sand devoid of vegetation. The U values of 100 and

    150 kg/ha/yr used by FCWC were extremely conservative. The EPA Manual provides U value ranges for forage grasses, at a low of 130-225 kg/ha/yr for bromegrass, to a high of 400-675 kg/hayr for coastal bermuda grass. Ignoring the testimony of FCWC witnesses that the grass would be mowed and removed from the site, Dr. Subramani supported his opinion only with the unfounded contrary assertion that the vegetation on site will not be harvested and removed as a crop.

    
    

37. Petitioners alleged that discharges from the site would contaminate surface and ground waters and otherwise adversely affect water quality; inadequate renovation of pollutants would take place in the soil; and the receiving waters were already below standards. Petitioners' experts did no studies or analyses, nor did they predict expected concentrations for any parameters for sprayed treated effluent leaving the site as surface waters or groundwaters. Petitioners' exhibits regarding water quality issues consisted of two single-day monitoring reports for the existing WWTP discharge and the Canal and a set of 1990-91 water quality report sheets for the WWTP.

    
    

38. FCWC's expert, Dr. Harper, analyzed the project's impacts on groundwater and on surface waters (the Canal) if the treated effluent were to leave the site as surface run-off in the swales, as groundwater seepage into the collection ditches, or as aerosol drift.

    
    

39. Based on 1990-91 water quality monitoring of the WWTP's existing treated effluent, Dr. Harper projected the concentrations of parameters of concern for the treated effluent to be sprayed at the site. Although monitoring of heavy metals is not required at the WWTP, he also projected levels for these parameters based on EPA figures and existing data from two larger domestic wastewater treatment plants. Because those two plants have contributions from industrial and commercial components not found at the WWTP, the projections substantially over-estimated heavy metals expected for the WWTP.

    
    

40. Groundwater Impacts. Dr. Harper estimated the pollution removal efficiencies for treated effluent traveling through approximately one foot of soil by reference to the EPA Manual and a study he had performed. He then applied these efficiencies to the projected concentrations for the sprayed treated effluent. Even at maximum projected concentrations, the results showed that projected constituents would be at or better than groundwater quality standards after renovation in the soil. Thus, due to low levels of constituents of concern, including those for which no numerical standard is provided in the rules, the project will not cause groundwater water quality violations and will have no adverse effect on the biological functions in the groundwaters directly underlying the site.

    
    

41. Contrary to Petitioners' assertions, DER witnesses stated that DER does not interpret provisions of Rules 17-600.530(4) and 17-610.310(3)(c)4, F.A.C., as requiring background groundwater samples in the application. Because research has shown that groundwater quality results for sprayfields are generally very good, DER routinely defers such sampling until after permit issuance. Thus, the groundwater monitoring plan in the application and in the draft sprayfield permit provides that all monitoring wells will be sampled to establish background water quality and results submitted to DER prior to spray

    irrigation. DER's expert witness in environmental engineering and wastewater land application design, Christianne Ferraro, as well as John Armstrong, DER's environmental specialist in site contamination clean-up, stated that they had reviewed groundwater monitoring currently provided by FCWC for the WWTP. They found no nitrogen violations.

    
    

42. Surface Water Impacts. The preponderant evidence showed that treated effluent will not flow directly into the swales. Therefore, FCWC proved it will not leave site as surface run-off. However, in order to project the worst-case water quality evaluation for droplets greatly diluted by rainwater or groundwater which may enter the swales, it was assumed that all treated effluent landing within swales "made of glass" would run off directly into the Canal. In addition, uptake, removal or dilution likely to occur in the collection ditches was ignored. Pollution removal efficiencies for grassed swales (based on a year-long study) were applied to the projected concentrations for the treated effluent. After renovation in the swales, any treated effluent leaving the site would contain concentrations for parameters of concern at or better than surface water quality standards. Therefore, water quality in the receiving surface waters will not be violated.

    
    

43. Due to removal efficiencies for soils, the treated effluent leaving the site as groundwater seepage into the collection ditches is expected to meet surface water quality standards. In addition, the trace quantity of effluent (0.12 inch for wettest year in ten) which may seep into the swales will reach the San Sabastian Canal only after being greatly diluted within the groundwater and filtered and purified in the soil in the citrus mounds and grassed swales.

    
    

44. Even projecting ten times the amount of aerosol drift predicted for the project, the water quality impact of any sprayed treated effluent entering the Canal as drift is so small as to be insignificant.

    
    

45. Ambient Water Quality. The existing discharge is having minimal effect on the water quality of the Canal. Furthermore, by eliminating the direct discharge, the project will reduce the present impacts on the Canal by 92-99%. Nonetheless, Petitioners suggest that the project may further degrade ambient waters which they allege are already below standards. Dr. Harper assessed the ambient water quality characteristics of the Canal, which is Class III fresh surface water and the ultimate receiving water for the site. Even including water quality data for the Canal put in evidence by Groves, the Canal is not currently at or below any state water quality standards for Class III waters, except for occasional Dissolved Oxygen (DO) levels. Levels of DO in sprayed treated effluent are expected to be very high.

    
    

    Even if groundwater seepage into the collection ditches and the Canal from the proposed sprayfield contains low levels of DO due its travel underground, it will not lower levels of DO in the ambient waters because the groundwater will also be low in BOD, which depresses DO. Thus, groundwater seepage is expected to have a neutral effect on ambient DO or to increase DO levels due to its diluting effect on BOD.

    
    

46. Groundwater inflow to the site is negligible but outflow occurs at a significant measured rate. The only significant inputs are sprayed treated effluent and rainfall. Therefore, the groundwater under the site will eventually reach a stable condition where its constituent levels are the average of the constituent levels in rainwater and the treated effluent. The treated effluent to be applied on this site is at or above state groundwater standards. Necessarily, regardless of the condition of the existing groundwater it cannot

    possibly be degraded by the treated effluent to below state standards and may well be improved by it. Thus, FCWC has provided reasonable assurances that Rule 17- 600.530(4), F.A.C., has been met, without monitoring of ambient groundwaters in the application.

    
    

47. The deposition of treated effluent will not violate the standard that all waters of the state shall be free from components which, alone or in combination with other substances, are present in concentrations that are carcinogenic or teratogenic to humans, animals or aquatic species or that pose a serious threat to public health, safety or welfare.

    
    

    Human Health Risk and Contamination.

    
    

48. Petitioners allege that the sprayfield poses a hazard for contamination of their properties. They produced no witness or evidence of contamination other than experts in grove management, citrus production and management, and Petitioners themselves, who expressed scientifically unsubstantiated fears of the impact of the sprayfield on human health or the marketing of their fruit and honey. FCWC expert Dr. Christopher Teaf, who teaches biology, toxicology and risk assessment at Florida State University and is also president and principal toxicologist with a firm doing hazardous substance and waste management research, determined that the project poses no off-site contamination hazard.

    
    

49. Pathogens. Fecal coliform is a standard measure for the health hazards of treated effluent based on an indicator group of microbiological organisms, present in the intestinal tracts of all warm-blooded animals as well as a number of insects and cold-blooded species. These organisms do not themselves ordinarily cause human disease, but may indicate the presence of other pathogenic organisms. Coliform bacteria are common in water bodies in general, and the state limit for these bacteria is 200/100 ml. Rule 17- 302.560(6), F.A.C. The World Health Organization has concluded that levels as high as 1,000/100 ml constitute an adequate standard and will not be associated with human disease.

    
    

50. Only extremely limited numbers of bacteria can survive the hazardous journey from the WTTP to the Petitioners' property. First, required chlorination at the WWTP will reduce the coliforms to no more than 200/100 ml. At that level, pathogenic bacteria are negligible, if present at all. Pressures during ejection from the spray heads will cause a 70-90% mortality rate. Once airborne, bacteria will be killed because of temperature, ultraviolet radiation and desiccation. As water drops evaporate, constituents become more concentrated and the drops become toxic environments for bacteria. Bacteria falling to earth are filtered in the first few inches of surface soils. Any organisms borne off site will find that, due to the antibacterial qualities of citrus peel and fruit and the plethora of chemical agents routinely applied, the adjacent groves are an extremely inhospitable environment. Too few bacteria will survive at FCWC's proposed application levels, or at 10 times those levels, to constitute an infective dose and contribute to the incidence of human disease. Thus, treated effluent in the form of aerosol drift will have no adverse effect on the health of humans or otherwise cause contamination of areas adjacent to the proposed sprayfield.

    
    

51. Consumption of Fruit. Bacteria are not taken up by the plant roots and the aerosol drift will not have any effect on the actual health of the citrus trees themselves. The minimal deposition from spray will be removed through washing required by governmental standards to remove dirt, grime and

    other contamination, such as fungicides, herbicides and pesticides applied as a normal practice in the citrus industry.

    
    

52. Based on fifteen years of scientific literature, including the EPA Manual, crops irrigated with treated effluent do not contribute to human health problems in populations that consume those crops. With application of treated effluent with bacterial concentrations, even 10,000 to 100,000 times higher than the standard, there has been no incidence of human disease related to the consumption of such crops.

    
    

53. Part II of Rule 17-610, F.A.C., "Reuse: Slow rate land application systems; restricted public access;" governs the type of sprayfield proposed by FCWC. Petitioners alleged that, due to the proximity of their groves and beekeeping activities, higher levels of treatment than those in Part II should be required. They argued that "advanced wastewater treatment" (AWT), defined in Section 403.086(4), F.S., would be more appropriate. This statute gives DER the discretion to require AWT when it deems necessary. Section 403.086(1)(a), F.S. However, AWT would not meet the requirements of Part III of Rule 17-610, which governs irrigation ("direct contact") of edible food crops and requires Class I reliability for treatment which is not required for AWT. Section 403.086(4), F.S.; Rule 17-610.460 and 17-610.475, F.A.C. Adjacent land uses were a part of the permit review for this project required in Part II. Buffer restrictions provide protection from the sprayfield so that levels of deposition are negligible compared to those when spray irrigation is applied directly at the food crop site. Thus, by its decision to issue this permit, DER recognized that minimal aerosol drift is not the "direct contact" envisioned in Part III and that because the project did not pose a hazard to adjoining groves higher levels of treatment are not necessary.

    
    

54. Aerosol drift from treated effluent will have no effect on human health due to contamination of honey or adverse effects on the Shreve's bees located near the proposed sprayfield. Natural enzymes in unpasteurized honey are hostile to bacteria. The Shreves have never experienced a problem with the existing forty acre sprayfield even though it is accessible to their bees and has been in the area as long as the bees have.

    
    

55. Petitioners allege that the sprayfield will attract birds, creating an aviation hazard to airplanes using the grass airstrip owned by Petitioner, Parrish Properties. Mr. Parrish, who is a licensed pilot, asserted that water ponding on the site and the mowing operation will attract birds.

    
    

56. Both the proposed sprayfield and the surrounding groves will be mowed and irrigated and thus will provide the same type of mixed grass and citrus tree habitat as presently found in the groves. Therefore, Petitioners are currently attracting the same type and number of birds to their groves as FCWC's proposed sprayfield will attract.

    
    

57. FCWC's expert in botany and ornithology, Mr. Noel Wamer, observed no large birds at the site, the existing 40-acre sprayfield or the surrounding citrus groves. He did observe small birds such as northern cardinals, towhees, and warblers, typical of citrus grove habitats. Cattle egrets might also be expected in the groves and the proposed sprayfield, particularly during mowing operations. Wading birds would only be attracted if water remained on the site for approximately one week or more to allow development of aquatic organisms as a food source.

58. Birds present on the proposed sprayfield are very unlikely to fly up and collide with planes. The grass airstrip is used infrequently, with only 12 landings in the past year. For a number of years Mr. Wamer has observed bird behavior at the Tallahassee sewage treatment plant sprayfields near the Tallahassee Airport. The one-half mile distance between the runway and sprayfields in Tallahassee is nearly the same as the distance between the Petitioners' grass airstrip and the site. Planes landing at the Tallahassee airport are at an altitude of between 500 and 600 feet over the sprayfields, the same height as predicted over the site. Regardless of the size of planes, the birds, primarily cattle egrets, do not react, but continue feeding or resting.

    
    

    Stormwater and Surface Water Management Activities.

    
    

59. On April 3, 1991, FCWC submitted an application with DER to modify and operate the existing stormwater and surface water management system on the sprayfield site (MSSW system). The Notice of Intent to Issue the MSSW Permit was published in the Florida Today newspaper on July 27, 1991.

    
    

60. Minor activities are proposed to improve the existing system: (1) culverts at the ends of swales will be cleaned to restore full flow capacity;

    (2) obstructions and excess vegetation will be removed from the collection ditches to restore their original flow lines; and (3) any depressions in the swales will be filled and regraded to attain a minimum swale bottom elevation of

    20.2 feet above mean sea level.

    
    

61. As asserted by DER's expert in surface water management, the stormwater discharges will not be a combination of stormwater and domestic waste sufficient to trigger review of stormwater under DER rules as required by Rule 40C-42.061(3), F.A.C. Considering all proof adduced, particularly that stormwater will be treated to applicable standards in the grassed swales, water quality will not be violated, and the post- development peak discharge will not exceed the pre-development peak discharge from the site, FCWC provided reasonable assurances that the proposed MSSW system would not be harmful to the water resources in the area and would not be inconsistent with the overall objectives of the district.

    
    

    Summary of Findings and Permit Conditions

    
    

62. FCWC has established that the sprayfield, as proposed, will meet the applicable regulatory requirements for the sprayfield and MSSW permits.

    
    

    Included in the specific conditions attached to the notice of intent to issue the sprayfield construction permit is the requirement that the site be operated to preclude saturated ground conditions or ponding. (FCWC Exhibit #3, paragraph 13, specific conditions). Witnesses for the applicant described certain proposals to assure this condition is met, and those proposals should be incorporated into the condition. Those proposals include the cessation of spraying during a rain event and the installation of devices to automatically turn off the sprinklers when rain occurs, the cessation of spraying whenever the groundwater level is within four inches of the bottom of the swales, and the installation of ground water gauges to determine when this level is reached.

    
    

    In order to minimize aerosol drift, the applicant proposes to establish wind gauges indicating the direction and speed of wind at the site. It was suggested that spraying would cease when the wind reaches 20 miles an hour, and sprinklers should be positioned to avoid spraying the downwind perimeter of the

    site when drift is likely to occur. This condition should also be incorporated in the permit.

    
    

    If the operational adjustments cannot be made automatically it will be necessary to require that the plant be staffed at all times that the spray system is turned on, notwithstanding the minimum six hours, five days a week required in Rule 17-602.370, F.A.C. and referenced in the intent to issue.

    
    

63. Engineering computations in the application rely on the assumption that the vegetation onsite will be harvested (mowed and removed). Since spray irrigation treatment of wastewater depends on renovation or removal of effluent by the soil vegetation system, periodic mowing and removal of the vegetation should also be included as a permit condition.

    
    

    CONCLUSIONS OF LAW

    
    

64. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

    
    

65. Petitioners' requests for an administrative hearing were timely filed, and included adequate allegations of standing to pursue this proceeding.

    
    

    Respondents challenged the allegations of standing and, as reflected in this recommended order, Petitioners failed to prove actual injury. See Agrico Chemical v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2nd DCA 1981) cert. den, 415 So. 2d 1359 (Fla. 1982).

    
    

66. As Applicant, FCWC has the ultimate burden of proving its entitlement to the permits it seeks. Florida Department of Transportation v. JWC and DER,

    396 So.2d 778 (Fla. 1st DCA 1981); this burden is satisfied with reasonable assurance based on plans, test results, installation of equipment or other information, that the proposed project will meet the criteria of relevant statutes and rules and will not cause pollution in contravention of department standards and rules. Rule 17-4.070(1), F.A.C. The department may issue permits with specific conditions necessary to provide reasonable assurance that its rules can be met. Rule 17-4.070(3), F.A.C.

    
    

67. The design and construction of the 300-acre wastewater spray facility proposed by FCWC will comply with all applicable requirements of DER, pursuant to Chapters 403 and 373, F.S., and Chapters 17-3, 17-4, 17-302, 17-600, 17-610, 40C-4 and 40C-42, F.A.C. The application for construction of the sprayfield, with its supporting documents, and the application for the MSSW permit, provide reasonable assurances that all applicable permitting criteria have been met and the project will not cause pollution and will meet the applicable criteria in the rules set forth above.

    
    

    Sprayfield Permit

68. Rule 17-610.400, F.A.C. describes the system proposed by FCWC: 17-610.400 Description of System.

    1. Slow-rate land application systems involve the application of reclaimed water to a vegetated land surface with the applied reclaimed water being treated as it flows through the plant-soil matrix. A portion of the flow percolates to the ground water and

       some is used by the vegetation. Offsite surface runoff of the applied reclaimed water is generally avoided. Surface application techniques include ridge-and-furrow and border strip flooding. Spray irrigation systems can use fixed risers or moving systems, such as center pivots. These systems generally involve the reuse of reclaimed water that has received secondary treatment and basic disinfection.

    2. Public access shall be restricted, except as allowed by Rule 17-610.418(2), F.A.C.

    3. Subsurface application systems may be used. Systems shall be designed and operated to preclude saturated conditions at the ground surface.

       (emphasis added)

       
       

       "Reuse" means the deliberate application of reclaimed water, in compliance with applicable rules for a beneficial purpose, including groundwater recharge through slow rate land application systems. Rule 17-610.200(41)(a)4., F.A.C.

       
       

69. Petitioners allege that FCWC was required by DER Rules 17-600.530(4) and 17- 610.610(3)(c)4., F.A.C., to provide monitoring data establishing the background water quality of the groundwater at the site in its application. DER's interpretation is that both provisions may be met by monitoring after permit issuance. Rule 17-600.530(4) is in Part III of Chapter 17-600, F.A.C. entitled "Treatment Requirements," which sets forth general treatment standards for land application systems. Part III does not indicate that Subsection (4) is a permit application requirement but rather that it is a treatment level that may be required depending on monitoring of the project. Rule 17-610.310(3)

    F.A.C. describes the requirements of the engineering report to be included in the application, including the proposed monitoring system. Subsection (3)(c)4. indicates that such a system should provide background water quality data. The evidence shows that FCWC complied with DER's reasonable interpretation of both rule provisions.

    
    

70. Pursuant to rule 17-4.070(5), F.A.C., DER must "consider" violation of "any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met. Evidence was presented that the WWTP had received a DER warning notice for discharging treated effluent into the Canal and that this issue was duly resolved by consent order between DER and FCWC.

    
    

    There was no competent, substantial evidence that FCWC is not in compliance with the terms of the Consent Order or that FCWC had otherwise violated DER rules at this or other FCWC facilities. FCWC met its burden of providing reasonable assurances that it will comply with DER rules for this project. See Roth v. Pasco Co. and DER, 12 FALR 175, 177 (Final Order, December 15, 1989).

    
    

71. It is a DER policy to encourage applicants to discuss alternatives with DER prior to submittal of an application. Rule 17-610.100(2), F.A.C. FCWC met its burden of showing that it complied with this policy concern.

    
    

    Petitioners contend that the application process must consider other disposal alternatives such as deep well injection, advanced treatment with

    discharge to the San Sabastian Canal and Indian River Lagoon, or advanced treatment with direct application to edible crops, such as their citrus.

    
    

    After a ruling excluding evidence as to whether such alternatives are "better" or more efficient or more economical, Petitioners were nevertheless permitted to proffer some evidence.

    
    

    FCWC has applied for a permit for a specific type of effluent disposal system for which specific requirements are imposed, and the applicant is entitled to a determination on that system. There is no statutory or rule requirement that an applicant must provide an alternate analysis and evidence as to the "best" system and there are no standards in the rules as to what constitutes the "best" system.

    
    

72. FCWC was not required to consider reuse alternatives in this permit application, but will be required to consider and possibly implement reuse options in the future. Section 3 of Chapter 90-262, Laws of Florida, requires that each owner of an existing sewage treatment facility within the Indian River Lagoon Basin investigate the feasibility of using reclaimed water for beneficial reuse by July 1, 1992. Another future reuse consideration required of wastewater treatment facilities is contained in Rule 17-40.401(5), providing that the water management districts must designate certain areas as "critical water supply problem areas". Wastewater treatment facilities in these areas will be required to provide a reasonable amount of reuse of their reclaimed water (sewage effluent). The area FCWC proposed for the spray effluent system was not designated as a critical water supply problem area when its permit application was completed and reviewed in this case.

    
    

    Moreover, as noted in paragraph 5, above, spray application is considered a reuse.

    
    

73. Petitioners also allege that the proposed project should be required to meet an alternative level of treatment. To the extent that such an alternative might be necessary in order for the project to meet the applicable permitting requirements, the issue is relevant in this proceeding. However, the alternative is not necessary.

    
    

    Petitioners argue that because of the potential for aerosol drift on their citrus fruit, the project must meet the requirements of Part III of Rule 17-610, F.A.C., which governs irrigation of edible crops and requires higher levels of treatment than required under Part II. Petitioners also argue that the project should meet "advanced waste treatment levels" (AWT). DER has the discretion to require AWT as deemed necessary. Section 403.086(1)(a), F.S. DER has not deemed that the project's proximity to citrus groves requires compliance with the higher treatment levels of Part III or AWT. Petitioners have not shown any environmental harm or threat to human health by the aerosol contact with fruit on Petitioners' groves. To the contrary, FCWC presented substantial and competent evidence that the aerosol drift offsite would present no human health threat, and DER has not abused its discretion.

    
    

    Aerosol drift must be minimized, but is not prohibited altogether. See Rules 17-610.419(1)(e), and 17-610.421(1) and (2)(a), F.A.C. FCWC has

    "minimized" the impacts of aerosol drift by agreeing to avoid spraying during windy conditions. Existing trees will also help buffer the drift.

    
    

    Rule 17-610.451(3)(a), F.A.C. provides that the department may approve the use of reclaimed water for the irrigation of citrus when (among other

    restrictions) the reclaimed water shall not directly contact the fruit. This rule relates to reuse systems involving land application in public access areas, for residential areas or for edible crops. The rule does not apply to the permit at issue. Even though the rule may be invoked as a statement of public health concern, the minimal aerosol drift which may find its way to Petitioners' fruit in this case is an indirect, and not direct contact. Direct contact is limited to the site on which the spray system is located.

    
    

74. Petitioners have argued that the permit may not be issued because of certain changes or "deviations" made by FCWC in a water balance equation contained in the US EPA Manual adopted by reference in Rule 17-610.300(4)(a), F.A.C.

    
    

    The change was to modify the water balance equation to reflect stormwater run-off leaving the site to make the equation more technically correct and the results more conservative.

    
    

    Petitioners argue that these changes are "deviations" from the manual, and that these "deviations" have not been adequately justified pursuant to Rule 17- 610.300(2).

    Rule 17-610.300(1)-(3), F.A.C. provides as follows: 17-610.300 General Technical Guidance.

    1. The technical standards and criteria

       contained in the following standard manuals and technical publications listed in Rule 17- 610.300(4), F.A.C., are hereby incorporated by reference and shall be applied to supplement the requirements of this rule, if applicable, in determining whether permits to construct of modify reuse of reclaimed water facilities or land application facilities shall be issued or denied.

    2. Deviations from the standards and criteria contained in the publications listed in rule 17-610.300(4), F.A.C., may be approved by the Department provided that:

       1. The requirements of all other sections of this rule shall be met;

       2. The engineer's report provides reasonable assurance that the proposed design will provide treatment and reuse of effluent disposal meeting the requirements of this rule; and either

       3. Conforming with these standards cannot be done except at unreasonably higher costs; or

       4. It is not technically feasible to conform to these standards because of site conditions or incompatibility with a proposed facility design employing new and innovative techniques which assure compliance with the remainder of this rule.

    3. The Department shall require deviation from the standards and criteria contained in the publications listed in Rule 17-610.300(4),

       F.A.C., upon a finding that conformance to them will not assure compliance with the remainder of this rule or other rules of the Department.

       
       

       As Rule 17-610.300(1) indicates, the technical documents adopted by reference are to supplement the requirements of the rule. DER has another specific rule for hydraulic loading rates, basis for the water balance equation. Rule 17-610.423, F.A.C.

       
       

       Rule 17-610.300(3), F.A.C. actually requires deviation from criteria contained in the documents adopted by reference when standards in the manuals will not assure compliance with Chapter 17-610, F.A.C. The change in the water balance equation to include stormwater run-off leaving the site to make the equation more technically correct and the results more conservative is appropriate for determining the proper hydraulic loading rate in Rule 17- 610.423, F.A.C. and therefore is appropriate in this case.

       
       

       Stormwater and Surface Water Management (MSSW) Permit

       
       

75. DER has concurrent permitting authority with the St. Johns River Water Management District (SJRWMD) for stormwater and MSSW permit review. Section 373.413, F.S. DER intends to issue the MSSW Permit to FCWC, pursuant to an operating agreement between DER and SJRWMD, which provides that DER will review MSSW permit applications for domestic waste disposal projects. Sections 373.413 and 373.416, F.S., establish two statutory criteria for evaluation of MSSW permits: that the project "not be harmful to the water resources of the [water management] district" and "not be inconsistent with the overall objectives of the district". These statutory sections are implemented by Chapter 40C-4, F.A.C., and the provisions of Part II of the SJRWMD "Applicant's Handbook" (AH), which are adopted by reference in Rule 40C-4.09l, F.A.C. Specifically, paragraphs 40C-4.301.(1)(a) and 40C-4.301(2)(a), F.A.C., as well as AH, Sections

9 and 10, which track the rule, set forth the requirements for the construction and operation of a proposed MSSW system.

FCWC has provided reasonable assurances that due to the design and operational safeguards to be imposed, and due to the facts that water quality standards will be met and the project poses no threat of contamination to the environment or other human health risks, the MSSW system will not endanger life, health or property, adversely affect the availability of water for reasonable beneficial purposes, be incapable of being effectively operated, adversely affect existing agricultural, commercial, industrial or residential development, cause adverse impacts to quality of receiving waters, adversely affect natural resources, fish and wildlife, induce pollution intrusion, or otherwise increase the potential for damages to offsite property or the public. Other criteria in Rule 40C-4,301(1)(a), F.A.C., on which no evidence was presented, are not applicable to this project. Therefore, the project will not be inconsistent with the overall objectives of the district as required by Rule 40C-4.301(1)(a),

1. Reasonable assurances have been established that the swales, conveyances and retention ponds of the MSSW system will be capable of being operated and will provide adequate control of the required water quantity to avoid deleterious effects and thus meet the applicable criteria of showing that the project will not be "harmful to the water resources of the district." Rule 40C- 4.301(2)(a), F.A.C.; AH, 10.2.1.

   Additionally, pursuant to Subsection 40C-42.061(1), F.A.C., whenever the construction of a stormwater discharge facility requires an MSSW permit, the facility must meet the requirements in Chapter 40C-42, F.A.C., which are reviewed as part of the MSSW permit application. See Rule 40C-42.061(1), F.A.C. Pursuant to Rule 40C-42.061(1), F.A.C., a review of the stormwater discharge requirements established in Rule 40C-42, was performed concurrent with the review of the MSSW criteria and FCWC has provided reasonable assurance the criteria and requirements of Rule 40C-42, F.A.C., have been met. The Petitioners questioned whether under Section 40C-42.061(3), F.A.C., in effect at the time of the permit review, the stormwater portion of FCWC's MSSW permit application should have been reviewed under DER rules, because discharges from the site were a combination of stormwater and domestic wastewater. Section 40C- 42.061(3), F.A.C. provides that the permit requirements of DER rather than those of Chapter 40C-42 apply to such combination discharges unless:

   
   

   1. The stormwater discharge facility is capable of providing treatment of the

      non- stormwater component sufficient to meet state water quality standards; and

   2. The applicant receives written approval from the DER that the permit requirements of Chapter [40C-42] apply.

FCWC adduced competent, substantial evidence to show no significant amounts of treated effluent will enter the proposed stormwater management system, and DER concurred. The DER rules were, therefore, not applicable to the MSSW permit review.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That a final order be entered issuing permits number DC05-194008 and MS05- 194894, with the additional conditions addressed in Finding of Fact paragraphs

60 and 61, above.

DONE and RECOMMENDED this 27th day of May, 1992, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1992.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings on the findings of fact proposed by Petitioners, Groves and Shreve:

1. Rejected as unsupported by competent evidence (as to the allegation of irresponsible plant operation).

2.-4. Rejected as irrelevant.

5.-7. Addressed in Conclusions of Law.

1. Rejected as irrelevant.

   
   

2. Adopted in paragraph 9.

10.-11. Rejected as contrary to the weight of evidence as to "irrigation efficiency".

12.-13. Rejected as contrary to the weight of evidence.

1. Rejected as contrary to the weight of evidence and mischaracterization of the witness' testimony.

   
   

2. Rejected as unnecessary.

   
   

3. Rejected as statement of testimony, not finding of fact, which testimony is outweighed by other evidence.

1. Rejected as contrary to the weight of evidence. Average annual application rate of .54 inches/week yields 28 inches a year.

   
   

2. Rejected as unnecessary. Addressed in Conclusions of Law.

26.-29. Rejected as contrary to the weight of evidence. 30.-31. Rejected as unnecessary.

1. Rejected as contrary to the weight of evidence.

   
   

2. Adopted in paragraph 19.

   
   

3. Adopted in paragraph 20.

   
   

4. Adopted in paragraph 11.

   
   

5. Adopted in paragraph 19.

6. Addressed in paragraph 36; adopted in substance.

38.-39. Rejected as unnecessary.

40. Adopted in paragraph 31.

41.-47. Rejected as unnecessary, or contrary to the weight of evidence as to "irrigation efficiency".

48.-49. Rejected as cumulative and unnecessary.

50. Adopted in paragraph 34.

51.-52. Rejected as contrary to the weight of evidence. The grass will be mowed and removed. The "U" value was based on the grasses, not the citrus.

53. Rejected as contrary to the evidence, as to "unknown density and type".

54.-57. Rejected as unnecessary.

1. Rejected as contrary to the evidence.

   
   

2. Adopted in paragraph 7.

   
   

3. Rejected as unnecessary.

   
   

4. Rejected as contrary to the weight of evidence.

   
   

5. Rejected as unnecessary.

63.-64. Rejected as contrary to the weight of evidence.

65. Rejected as confusing, as to the term "unsuitable conditions".

66.-69. Rejected as contrary to the evidence.

70. Rejected as confusing.

71.-72. Rejected as unnecessary.

73.-74. Rejected as a mischaracterization of the witnesses' testimony.

75.-82. Rejected as unnecessary.

1. Rejected as contrary to the weight of evidence.

   
   

   84.-85. Rejected as unnecessary.

   
   

   86.-87. Rejected as contrary to the evidence. 88.-89. Rejected as unnecessary.

   90.-94. Rejected as contrary to the evidence. 95.-97. Rejected as unnecessary.

   98.-99. Addressed in Conclusions of Law.

   
   

   100.-103. Rejected as contrary to the weight of evidence.

   
   

   104.-109. Rejected as a mischaracterization of the testimony or misunderstanding of the term "irrigation efficiency".

   
   

   110.-112. Rejected as cumulative and unnecessary. 113.-114. Addressed in Conclusions of Law.

   1. Rejected as unnecessary.

      
      

   2. Addressed in Conclusions of Law.

117.-118. Rejected as irrelevant.

1. Rejected as contrary to the law and evidence.

   
   

2. Rejected as unnecessary.

   
   

3. Adopted in paragraph 16 by implication.

   
   

4. Rejected as unnecessary and misunderstanding of the testimony.

   
   

5. Addressed in Conclusions of Law.

124.-126. Rejected as unnecessary.

1. Rejected as contrary to the weight of evidence.

   
   

2. Adopted by implication in paragraph 21.

129.-130. Rejected as unnecessary.

131. Rejected as contrary to the evidence.

132.-134. Rejected as unnecessary.

135.-138. Rejected as contrary to the evidence. 139.-141. Rejected as unnecessary.

COPIES FURNISHED:

Kenneth G. Oertel, Esquire

M. Christopher Bryant, Esquire OERTEL, HOFFMAN, FERNANDEZ

& COLE, P.A.

P. O. Box 6507

Tallahassee, FL 32314-6507

Harry A. Jones, Esquire EVANS, JONES & ABBOTT

P.O. Box 2907

Titusville, FL 32781-2907

Kathleen Blizzard, Esquire Richard W. Moore, Esquire

P.O. Box 6526 Tallahassee, FL 32314

Douglas MacLaughlin Asst. General Counsel

Dept. of Environmental Regulation 2600 Blairstone Rd.

Tallahassee, FL 32399

Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Docket for Case No: 91-004177

Orders for Case No: 91-004177