Findings Of Fact The Applications. Permit DC51-189086 (Moon Lake Road Site). The County's application for Permit DC51-189086 was filed on 11/13/90. It sought to construct Moon Lake Road WWTP, Sprayfield, and Percolation Pond System. The design treatment capacity sought for Moon Lake Road WWTP was .800 MGD, for the sprayfield was .215 MGD, and for the percolation pond system was .185 MGD. The application for Permit DC51-189086 was denied on 2/13/92. Notice of the proposed agency action was published in accordance with Department requirements, and the County timely petitioned for a formal administrative hearing. On 11/16/93, the County amended its application for Permit DC51-189086 to exclude the proposed Moon Lake Road WWTP, in order to defer construction of the WWTP to a later date. On 1/5/94, the County amended its application for Permit DC51-189086 to withdraw the request for a surface water permit and a stormwater permit. Due to the recent interagency agreement between the Department and SWFWMD, the County decided to defer surface water and stormwater permitting for this facility until after the construction permit was issued. Permit DO51-194674 (Wesley Chapel WWTP/Oakley Grove Site). The County's application for Permit DO51-194674 was timely filed on 2/12/91. The application sought authorization to operate the County's Wesley Chapel Wastewater Treatment Plant (WWTP) at .750 MGD and Oakley Grove Percolation Pond System at .600 MGD. The application for Permit DO51-194674 was denied by the Department on 7/18/91. The notice of permit denial alleges that the County failed to submit requested additional information, that an inspection of the site had revealed a 6-inch irrigation pipe undermining a percolation pond berm, and that the Certificate of Completion of Construction did not accurately reflect observed aspects of the disposal area. The County timely petitioned for administrative hearing. The application for Permit DO51-194674 was amended on 11/16/93 to limit the treatment capacity of Wesley Chapel WWTP to .600 MGD. Permit DO51-199516 (Ryals Road Site). The portion of this case concerning Permit DO51-199516 involves the County's request to reactivate operations at the Ryals Road Percolation Pond System. The requested disposal capacity is .1075 MGD, which is about half of its disposal capacity when it previously was in operation. Ryals Road Percolation Pond System is a reuse facility owned by the County, and constructed in 1985 as a replacement for nearby Oaks Royal Percolation Pond, where a sinkhole had developed. The County's initial construction permit application (#DC51-100407) for the Ryals Road Percolation Pond System was filed with the Department in 1985. The Department granted the application for Permit DC51-100407 on 7/10/85. Ryals Road Percolation Pond System's permitted disposal rate was about .200 MGD. Construction of Ryals Road Percolation Pond System was completed in 1986, and operation began immediately thereafter due to the appearance of a new sinkhole at the Oaks Royal Percolation Pond. The Department was advised of the new sinkhole in the Oaks Royal Percolation Pond in 1/86 and in 2/86 and was advised that reclaimed water from Oaks Royal WWTP was being diverted to Ryals Road Percolation Pond System. The Ryals Road Percolation Pond System operated from 1986 through 1989. It received reclaimed water from Oaks Royal WWTP. A sinkhole developed in Ryals Road Percolation Pond System in 1987. The County backfilled the sinkhole and advised the Department of the problem. The County's initial operation permit application (#DO51-142683) for Ryals Road Percolation Pond System was filed with the Department in 1989. The Department granted the County's application for Permit DO51-142683 in 8/89. It does not contain any permit conditions dealing with the potential for sinkhole formation at the Ryals Road Percolation Pond System. At the time, the Department anticipated that the Ryals Road Percolation Pond System would be in operation for only a year or two. The County operated Ryals Road Percolation Pond System under Permit DO51-142683 until sometime in 1990, without further sinkhole or land subsidence problems. Ryals Road Percolation Pond System was taken out of service in 1990, when Oaks Royal WWTP was abandoned. Oaks Royal WWTP was taken out of service because, after completion of Southeast WWTP, it no longer was needed. On a routine monitor well sampling report to the Department dated April 30, 1990, the County's laboratory supervisor noted that the Oaks Royal WWTP had been taken out of service prior to January, 1990. On a subsequent report dated May 29, 1990, the County's laboratory supervisor noted that monitor wells at the Ryals Road site had been destroyed and that no ground water samples could be taken or reported. This report also noted that no arrangements were being made to replace the monitor wells since the Oaks Royal WWTP was "no longer on-line." The County never formally withdrew or surrendered its operation permit DO51-142683 for the operation of the Oaks Royal WWTP and Ryals Road Percolation Pond System. The Department never took action to revoke or terminate the Oaks Royal/Ryals Road operation permit and never gave the County notice of intent to do so. The County first notified the Department of its intent to "revive" the Ryals Road Percolation Pond System through letters dated 4/12/91 and 4/18/91. The County attempted to reactivate the facility by letter rather than permit application because it believed the facility was already authorized to operate pursuant to Permit DO51-142683. After receiving no response to its 4/91 letters, the County sent the Department a follow-up letter dated 6/10/91 again asking to "revive" Ryals Road Percolation Pond System. This letter refers to the County's request to reactivate the system as a "minor modification" to Permit DC51-150232C, which authorized construction activities at the County's Southeast WWTP. The letter sought a minor modification of the construction permit instead of an amendment to Permit DO51-142683 because the County was unsure of the status of the Ryals Road Percolation Pond System operation permit and had been advised by Department employees that this would be the most expeditious way to handle its request. The County's request for a minor modification was assigned permit identification number DO51-199516, and the "O" signifies an operation permit application. The County does not know why its request to reactivate Ryals Road Percolation Pond System was treated by the Department as a new operation permit application. The County first learned that its request to reactivate Ryals Road Percolation Pond System had been assigned a new operation permit identification number when it received notice of permit denial. The "application" for Permit DO51-199516 was denied on 8/26/91. The County timely petitioned for a formal administrative hearing. The Notice of Permit Denial for Permit DO51-199516 alleged that Ryals Road Percolation Pond System is not suitable for rapid rate disposal due to the high potential for subsidence activity, that this potential is demonstrated by the appearance of sinkholes in 1985, 1986 and 1987, and that boring logs and other information in the ground water monitoring plan shows a potential for sinkhole formation. Regardless of the confusion in processing the County's request regarding the Ryals Road site, the County announced clearly and unequivocally at final hearing that it no longer wanted its request to reactivate the Ryals Road Percolation Pond System to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP). Rather, it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a), and it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit). Alternatively, and only if it was determined that Permit DO51-142683 no longer was in effect, the County wanted its request to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP) or as an application for a new operation permit. Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit) expired on August 5, 1994. Drainage Ditches in Oakley Grove and Moon Lake Percolation Pond Systems. Drainage ditches are present at the Oakley Grove and several other County Percolation Pond Systems; they are proposed for the Moon Lake Percolation Pond System. (Drainage ditches are not present at the Ryals Road Percolation Pond System.) A "relief drainage" system is a system of drainage ditches used to lower a high water table, which is generally flat or of a very low gradient. There are 4 types of relief drainage ditch systems: parallel, herringbone, double main and random. Correspondence between the County's consultants and the Department usually described the on-site drainage ditches at the County's percolation pond systems as "perimeter ditches." Although the County's ditches do not necessarily completely surround each pond, it is a fair description of the ditches. They are a network of ditches that, together, surround the sites. The network varies to some degree from site to site. Moon Lake Road Percolation Pond System is designed to have double main type drainage ditch system; Oakley Grove Percolation Pond System has a random type ditch system. The County's consultants began referring to the ditches as "perimeter ditches" in part because it was a term used by members of the Department's staff. But both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Ground water will seep into the relief drainage ditches at the County's percolation pond system. During and after any rainfall event, water infiltrating into the ground in close proximity to a drainage ditch will be encouraged to seep into the ditch. During seasonally wet periods, when ground water elevations tend to rise above normal levels, ground water both on and off- site will seep into the ditches. After extreme rainfall events delivering large volumes of water to the site, elevated ground water mounding would occur and ground water will seep into the drainage ditches. The invert elevations of the relief drainage ditches located at the County's percolation pond systems were set to the approximate normal water level elevation. As a result, the ditch inverts will normally be wet, and ground water normally will seep into ditches in normal weather conditions even if the water table is not being recharged by reclaimed water. The principal design goals for the drainage features located at the County's percolation pond systems are: (a) ditch construction provides an inexpensive source of fill material; (b) using on-site ditch material allows pond bottoms to be kept higher above the water table; (c) ditches buffer adjacent property from recharge impacts; (d) ditches buffer the site from adjacent land use practices; (e) ditches provide a constant boundary condition by flattening seasonal fluctuation in rainfall, runoff, water table elevations and the potentiometric surface of the deeper aquifer system; (f) ditches serve to quickly drain rainfall that may hinder the recharge performance of the percolation ponds; (g) ditches provide a visible indication of site performance; and (h) ditches are part of the site's stormwater and overflow system. Although the collection of reclaimed water in the ditches is not the primary goal of these drainage features, it is recognized that some reclaimed water would be collected in the ditches as a result of the use of the drainage features to improve the performance of the percolation ponds, depending on the application rate and weather conditions. It is possible that reclaimed water applied to the percolation ponds will percolate into the ground and combine with native ground water, and that the resulting mixture will infiltrate the drainage ditches. As with all land application systems, water applied to percolation ponds will migrate downgradient in the surficial aquifer system and blend with other waters recharging this system. Surface waters downgradient from percolation pond cells, whether in the relief drainage ditches or off-site, will receive a blend of rainwater, direct runoff, water originating from the percolation ponds and ground water, in various proportions. Most surface water is designed to leave the Oakley Grove site at the eastern discharge point. Surface water leaving the site at this point flows east under Interstate 75 and into a forested wetland, approximately 150 acres in size, located to the east of I-75. Surface water then flows from the southwest corner of the wetland into a linear wetland and channel system, which conveys water west, ultimately discharging into Big Cypress Swamp, another wetland system several thousand acres in size. The other discharge point is from the southwestern corner of the Oakley Grove site. From the southwest outfall, surface water flows into a wetland and channel system that conveys water west and then north into Big Cypress Swamp. Surface water also is designed to discharge from the Moon Lake Road site via two outfalls. Both are located on the east side of the site. Discharges would enter an adjacent cypress wetland system consisting of hundreds of acres and meander approximately two miles in a northeasterly direction to a point of intersection with the upper reaches of the Pithlachascotee River. Status of Reclaimed Water Travelling 100 Feet or More from Percolation Pond Cells to Drainage Ditches. The Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water. This practice is derived from Department rules and from the Department's expectation that effluent percolating into the ground water and travelling 100 feet through the soil no longer will have the characteristics of effluent, for permitting purposes, when it reaches the surface water body. One hundred feet generally is recognized in the engineering field as usually sufficient area to permit adequate treatment, dilution and mixing of effluent as it travels through the soil matrix so to be virtually indistinguishable from normally occurring ground water, for permitting purposes, when it reaches the surface water body. The treatment, dilution and mixing of effluent occurs through a variety of chemical, biological, absorptive and physical processes that are well documented in the field of sanitary engineering. Although the Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water, the facts of individual cases must be considered to determine whether treatment afforded by 100 feet of travel through the ground makes reclaimed water "virtually indistinguishable" from other ground water so as to be virtually indistinguishable from naturally occurring ground water, for permitting purposes, when it reaches the surface water body. This is reflected in the fact that Department's rules make 100 feet the minimum setback distance. In contrast to diffuse discharges to nearby surface water bodies, the Department's rules treat discharges to surface waters via a ditch system that collects and concentrates reclaimed water differently. By rule, such discharges require a surface water discharge permit. If reclaimed water travels through the ground far enough before infiltrating drainage ditches, it would be treated and diluted to the point that it is in fact indistinguishable in chemical or biological composition from native ground water and no longer should be considered reclaimed water or effluent. How far is the dispositive question in determining whether a surface water discharge permit will be required. Setback Distance from On-Site Ditches to Percolation Ponds at Oakley Grove and Moon Lake Road Sites. Relief drainage ditches at Moon Lake Percolation Pond System are designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the pond to the ditch invert. Relief drainage ditches at Oakley Grove Percolation Pond System also were designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the percolation pond to the ditch invert. However, primarily as a result of changes to the drainage system required by SWFWMD as part of its permitting process, and minor siting imperfections which occurred during construction, parts of the drainage ditch system at Oakley Grove Percolation Pond System are located closer than 100 feet from the percolation ponds. To locate all Oakley Grove drainage ditches 100 feet or more from the percolation ponds, it will be necessary to reduce the size of the ponds. In the new configuration, the design loading rate would have to be increased to .8 from .58 gpd/ft2 (gallons per day per square foot) of pond bottom in order to maintain the .600 MGD design loading capacity of the Oakley Grove Percolation Pond System. Even assuming the predicted hydraulic capacity of Oakley Grove site, the actual disposal capacity for the site cannot be determined until it is determined how much of a reduction in pond size is required. The County has not made those determinations yet. Seepage of Reclaimed Water from Percolation Ponds at Oakley Grove Percolation Pond System to Drainage Ditches. Although constructed with a design disposal capacity of .600 MGD, until recently the County has loaded the ponds at Oakley Grove under the Oakley Grove construction permit at an actual average rate of approximately .200 MGD. (Maximum actual loading has been approximately .250 to .270 MGD.) This average loading rate required effluent to be loaded onto the ponds at the rate of approximately .19 gpd/ft2 of pond bottom. In November, 1993, the County stopped loading the ponds at Oakley Grove. During site visits to Oakley Grove on 4/15/91, 7/11/91, 7/12/91, 8/27/91, 10/12/93 and 12/7/93, Department personnel observed that ditch inverts, and some points even higher on berms on the pond side of ditch inverts, were wet and that water had collected in some the ditches, while other ditches and surface water outfalls were not wet. The wet ditches and berms seemed to correspond with the loading of ponds. Rainfall at the Oakley Grove site during the 10-day period immediately preceding these Department site visits was as follows: Site Visit Inches of rainfall Gallons of rainfall 4/15/91 3.58 9,786,659 7/11/91 5.41 14,789,337 7/12/91 5.60 15,308,742 8/27/91 2.91 7,955,078 10/12/93 1.02 2,788,378 12/7/93 0.03 82,011 The precise source of all of the water saturating the wet berms and ditch bottoms observed by the Department personnel was not clear from the evidence. Some of the wet berms and ditch bottoms probably were the result of rainfall that collected in portions of the ditch system due to uneven grading during construction, modifications to the ditch system required by SWFWMD, and the County's maintenance practices. But the evidence also suggests that seepage was occurring from the percolation ponds to the drainage ditches, in some cases at points higher on berms on the pond side of ditch inverts. It also was not clear from the evidence whether the apparent seepage from the percolation ponds into the drainage ditches was occurring more or less than 100 feet from the toe of the slope of the percolation ponds. If less, the seepage may be an indication that the hydraulic capacity of the site is not as great as predicted by computer flow models run in support of the application for a construction permit for the Oakley Grove site. Oakley Grove was designed to recharge the surficial aquifer without short-circuiting the designed 100 foot setback from the percolation ponds to the drainage ditches, even at the design disposal capacity of .600 MGD. (Cady Prefiled, 175). The evidence of seepage at .200 MGD is an indication that the hydraulic capacity of the site may not be as great as designed. Based on the assumed hydraulic capacity of the site, water balances prepared by the County assert that none of the water in the ditches would come from the percolation ponds at .200 MGD, or even at .300 MGD. The evidence of seepage at .200 MGD is another indication that the hydraulic capacity of the site may not be as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. The Oakley Grove relief drainage ditches were authorized by a SWFWMD Management and Storage of Surface Water ("MSSW") Permit (i.e., Permit #405124, issued 7/12/89). This permit established two surface water quality monitoring sites for the off-site discharge of water from the relief drainage ditches and requires that any water discharged off-site meet surface water quality standards. The County has collected data from these monitoring sites since 1991. This data does not indicate any violations of surface water quality standards due to the discharge of water from the relief drainage ditches to off- site receiving waters. (SWFWMD has never instituted an enforcement or compliance action against the County as a result of discharges from the relief drainage ditches to receiving waters, and Permit #405124 remains active.) However, the data indicate that the surface water quality has been worse, with respect to several parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for NOx-N, as high as .600 MGD.) This may be another indication that the hydraulic capacity of the site is not as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. MGD. No load testing was done at Oakley Grove at more than .250 to .270 Even at the historical loading rate, the evidence did not reflect that the County undertook to determine whether, under different weather conditions, reclaimed water was coming to the surface either in the drainage ditches or higher on berms on the pond side of ditch inverts. Nor was there evidence that systematic testing of the water quality in the ditches was conducted. In light of the evidence of seepage into ditches, either more or less than 100 feet from the toe of the slope of ponds, it was not proven that the site has the capacity to accept effluent at the design rate of .8 gpd/ft2 of pond bottom. It was, however, proven by evidence introduced as Department Exhibit 32 that .075 MGD is a hydraulic loading rate at which no discharge to the on- site ditch/swale features would occur under normal wet season groundwater conditions. Alleged Settlement Offer. Department Exhibit 32 is a January 27, 1992, letter from the County to the Department. It enclosed a letter to the County from the County's engineering consultant and an engineering report from a new hydrogeologic consultant to the County. The January 27, 1992, letter referenced a December 16, 1991, meeting "concerning acceptable rated disposal capacity" for the Oakley Grove Percolation Pond System and states that the enclosed hydrogeology report "verifies the rated capacity [for Oakley Grove] at 75,000 gpd." (The report stated that its purpose was "to estimate a hydraulic loading rate at which no discharge to the on-site ditch/swale features would occur under normal wet season groundwater conditions.") It concluded that a hydraulic loading of the Wesley Chapel WWTP can be justified by combining the 75,000 gpd disposal capacity for Oakley Grove with the 100,000 gpd already permitted for the Saddlebrook Village Percolation Pond System. Nowhere is Department Ex. 32 in fact identified as a settlement offer or as having any connection to a settlement offer in this or any other case. It is found that Dept. Ex. 32 was part of the process by which the parties successfully negotiated the settlement of the County's permit for construction of a modification to the Wesley Chapel WWTP, Permit Application No. DC51-205143. The Department issued a permit for construction of a modification to the Wesley Chapel WWTP (with a .075 MGD limit on disposal at Oakley Grove) on August 31, 1992. The County acceded to reduction of the actual disposal capacity at Oakley Grove pending the disposition of its application for an operation permit for Oakley Grove, and construction of the modifications was completed in late 1993. Ground Water Quality at Oakley Grove. During the time that Oakley Groves has been in operation, monitor wells have detected no violations of G-II ground water quality standards except for nitrates. Analysis of initial ground water samples collected from monitor wells at Oakley Grove Percolation Pond System in approximately January, 1991, detected no nitrate violations. The first quarterly reports after the County started loading the ponds began showing exceedances for nitrates. Exceedances continued to be reported in every quarter until the County stopped loading the ponds in November, 1993. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System demonstrates that nitrate concentrations have gone down over time. On average for the entire Oakley Grove Percolation Pond System, including upgradient background monitoring wells, nitrate concentrations have remained below the 10 mg/l Class G-II ground water quality standard for nitrate from approximately August, 1992, until the County stopped loading the ponds in November, 1993. The most recent quarterly sampling of the monitor wells at Oakley Grove Percolation Pond System occurred in 11/93. The report was submitted to the Department in 1/94. It showed no exceedances of the Class G-II ground water quality standard for nitrate in any of the monitor wells. However, it is not clear from the evidence whether the reports reflected the effects of reclaimed water being applied to the site. The reclaimed water applied to Oakley Grove Percolation Pond System probably is not the sole reason for the elevated nitrate concentrations that have been reported. Agricultural fertilizer was used at the site prior to acquisition by the County. Nitrates from the fertilizer have remained in the soil matrix. The loading of the ponds began to liberate the nitrates from the soil matrix and to flush the nitrates downgradient to the monitor wells. As the preexisting nitrates have been flushed out, nitrate levels have dropped. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System suggests that operation of the facility at historical loading rates (approximately .200 MGD) probably will not result in continued ground water quality violations. Systematic load testing would help answer the question more definitively. Surface Water Quality Considerations. The County did not intend for its percolation pond disposal systems either at Oakley Groves or at Moon Lake Road to result in a surface water discharge that would require a surface water discharge permit, and it has not applied for one at either site. Not having applied for a surface water discharge permit, the County has not submitted either a water quality-based effluent limitation (WQBEL) study or a plan to do a WQBEL study. In lieu of a WQBEL study, the County presented evidence of surface water quality consisting primarily of an evaluation of estimated predicted contributions, concentrations and characteristics of inputs entering the drainage ditches and a prediction of water quality characteristics at the point of discharge, given various application rates. Procedures commonly used and relied upon by water resource and sanitary engineers can be used to estimate the predicted quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates. The County utilized these procedures to predict, first, expected quality of water in the drainage ditches and, second, quality of water expected to be discharged off-site under various reclaimed water application rates. In applying the procedures, the County used lower removal efficiencies than those allowed in the EPA Design Manual and did not take into account additional pollutant removal efficiencies that will occur as the water in the ditches migrates off-site, resulting in higher predicted levels of contaminants in the water discharged off-site. The County also assumed the accuracy of the studies and models supporting the disposal capacities for the sites. Utilizing these procedures and assumptions, the County's evidence estimated the following predictions for Oakley Grove: --At an application rate of .300 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N (ammonia) = 0.129 mg/l; NOx- N (nitrite-nitrate)= 0.141 mg/l; organic nitrogen = 0.177 mg/l; total nitrogen = 0.477 mg/l; CBOD5 (carbonaceous biological oxygen demand)= 0.2 mg/l; total phosphorus = 0.04 mg/l; and fecal coliform = 21 per 100 ml. --At an application rate of .400 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.199 mg/l; NOx-N = 0.233 mg/l; organic nitrogen = 0.192 mg/l; total nitrogen = 0.672 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.056 mg/l; and fecal coliform = 20 per 100 ml. --At an application rate of .500 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.549 mg/l; NOx-N = 0.695 mg/l; organic nitrogen = 0.268 mg/l; total nitrogen = 1.65 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.25 mg/l; and fecal coliform = 15 per 100 ml. --At an application rate of .600 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.759 mg/l; NOx-N = 0.975 mg/l; organic nitrogen = 0.314 mg/l; total nitrogen = 2.23 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.36 mg/l; and fecal coliform = 12 per 100 ml. --At all reclaimed water application rates at the Oakley Grove site, it was estimated that TSS (total suspended solids) in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Utilizing the same procedures and assumptions, the County's evidence estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Moon Lake Road site at the design application rate of .185 MGD would be: NH3-N = 0.769 mg/l; NOx-N = 0.995 mg/l; organic nitrogen = 0.297 mg/l; total nitrogen = 2.25 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.37 mg/l; and fecal coliform = 3 per 100 ml. At the reclaimed water application rate proposed for Moon Lake Percolation Pond System, the County estimated that TSS in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Using those predictions of the water quality characteristics of off- site discharges from the relief drainage ditches, the County presented evidence that predicted generally and in a conclusory fashion that surface water discharges would not adversely impact the environment downstream. However, as already indicated, water quality monitoring for SWFWMD indicates water quality that has been worse at historical application rates, with respect to some parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for one parameter, as high as .600 MGD). County Ex. 162 summarized the surface water monitoring results at Oakley Grove for November, 1992, through November, 1993: East Outfall at I-75: NH3-N range less than 0.07-0.721 mg/l, and mean 0.157 mg/l; NOx-N range, less than 0.1-3.04 mg/l, and mean 0.416 mg/l; organic nitrogen range 0.250-1.10 mg/l, and mean 0.558 mg/l; total nitrogen range 0.510- 3.77 mg/l, and mean 1.31 mg/l; CBOD5 range less than 1-2.0, and mean 1.1 mg/l; total phosphorus range 0.020-0.190 mg/l, and mean 0.054 mg/l; T.S.S. range 1-16 mg/l, and mean 3.1 mg/l; and fecal coliform range 1-5300 per 100 ml, and mean 352 per 100 ml. South Outfall at Trailer Park: NH3-N range less than 0.07-0.270 mg/l, and mean 0.125 mg/l; NOx-N range, less than 0.1-0.810 mg/l, and mean 0.285 mg/l; organic nitrogen range 0.285-1.01 mg/l, and mean 0.631 mg/l; total nitrogen range 0.533-1.85 mg/l, and mean 1.04 mg/l; CBOD5 range less than 1-3.0, and mean 1.4 mg/l; total phosphorus range 0.010-0.120 mg/l, and mean 0.053 mg/l; T.S.S. range 1-16 mg/l, and mean 3.9 mg/l; and fecal coliform range 2-560 per 100 ml, and mean 50 per 100 ml. In addition, contrary to the County's predictions, estimates and arguments that surface water discharges from the Oakley Grove site will be "virtually indistinguishable from naturally occurring ground water," the surface water quality monitoring for SWFWMD at historical application rates indicates that water quality has been clearly distinguishable from naturally occurring ground water. The surface water discharges from the Oakley Grove site clearly have had higher levels of NOx-N and organic nitrogen than the water quality measured at the background monitoring station. In addition, pH levels have been significantly higher (approximately 7.35 versus 5.81). As previously found, the evidence suggests that seepage from the percolation ponds to the drainage ditches has occurred at the Oakley Grove site at application rates of approximately .200 MGD. That evidence belies the assumptions underlying the County's surface water quality predictions at Oakley Grove and suggests that the site may not have the hydraulic and disposal capacities on which the surface water quality predictions for Oakley Grove were based. Until the actual hydraulic capacity and disposal capacity of the Oakley Grove site are determined, it is not possible to accurately predict the quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates (except that there was evidence to prove that no seepage into the ditches would occur at application rates of up to .075 MGD.) In contrast to the Oakley Grove site, no load testing of the Moon Lake Road site is possible until it is constructed. The County presented evidence that nitrogen would be absorbed by plants and sediments downstream from the point of discharge. However, the evidence assumed that discharges would take place only in the wet season. Potential downstream impacts resulting from a dry season discharge would depend upon: (1) the amount of water coming off the site; (2) the amount of water in the receiving wetlands; (3) the duration of the discharge; and (4) the frequency of the discharge. The County's evidence did not examine the impact of discharges under those conditions. The County did not present evidence quantifying the amount of anticipated inorganic nitrogen discharge, the rate of uptake in sediments or plants, and the impacts downstream. The potential for imbalance of flora and fauna downstream, the biological integrity downstream, and degradation downstream likewise were addressed only in a general and conclusory fashion. No in-depth study of downstream biology was completed by the County. As for pH, there was evidence that the background wetland had a pH of 5.81 in standard units, while the ditch discharge has had a pH of 7.35 in standard units. Standard units of pH are logarithmic values. The numbers are actually powers of 10 and cannot simply be added together and divided by 2 to get an average pH. To get an average pH, you have to convert the pH from the logarithmic value to the actual concentration of the hydrogen ion, take the average, and then convert the average to a logarithmic value. Using this method, the average of a pH of 5.81 standard units and a pH of 7.35 standard units equals 6.1 standard units. Wetlands are very sensitive to the decreases in acidity reflected by higher pH values. The County's predicted surface water quality analyses did not address pH at all. The County's evidence did not include an examination of existing downstream conditions and projecting potential discharge impacts. The County did not model dissolved oxygen downstream of discharge points and did not survey the biological community of the receiving waters regarding any discharge to determine what impact, if any, a potential discharge would have on waters of the state. Surface water quality considerations were not assessed in relation to the volume and frequency of the discharge. In addition, the County did not sample and analyze water quality in downstream receiving waters. Other Considerations at Moon Lake Road In evaluating the County's Moon Lake Road application for completeness, the Department requested that the County conduct a fracture trace analysis and, if it indicated a higher likelihood of subsidence or sinkholes, a ground-penetrating radar (GPR) study. The County refused to do either, citing a desire to save County taxpayers money. Karst geology is typical in Pasco County. The County's site specific study of the Moon Lake Road site indicates the potential for karst activity by the presence of depressional features within and immediately adjacent to the site. It also indicates the presence of sinkholes on an immediately adjacent property. Starkey Wellfield is a regional public water supply wellfield located in Pasco County, which is part of the water supply network operated by West Coast Regional Water Supply Authority ("WCRWSA"). Starkey Wellfield currently operates under a consumptive use permit ("CUP") issued in 1988. The CUP authorizes the production of water from this facility at the annual average rate of 15 MGD and the maximum rate of 25 MGD. The nearest production well at the Starkey Wellfield is located slightly over half a mile from Moon Lake Road Sprayfield and slightly less than three-quarters of a mile from the Moon Lake Road Percolation Pond System. Water levels at the Moon Lake Road site probably will decline only about 0.7 foot due to the production of water from Starkey Wellfield. This decline is too small to significantly increase the potential for sinkhole formation or subsidence at the Moon Lake Road site. If the Moon Lake Road Percolation Pond System and Sprayfield can be operated in a safe and environmentally sound manner, it might be able to provide valuable recharge to the water table and the lower lying aquifer units. (This could reduce impacts caused by the wellfield.) But if there already is a sinkhole, or the high potential for one, at the Moon Lake site, use of the site for the disposal of reclaimed water could have a serious adverse effect on the Starkey Wellfield public water supply. Under these circumstances, it is found that the County has not yet given reasonable assurances that the Moon Lake Road site can be operated in a safe and environmentally sound manner. Evidence on Elements of Estoppel. The "Representations." Prior to the filing of the pending Oakley Grove operation permit application and Moon Lake Road construction permit projects, the Department had evaluated and permitted other similar County percolation pond systems (utilizing a system of drainage ditches to improve performance during wet weather conditions) in other locations. Saddlebrook Village Saddlebrook Village Percolation Pond System has a design disposal capacity of .15 MGD and a permitted capacity of .098 MGD. The initial construction permit application (#DC51-140007) for this facility was filed in 9/87. The Department issued Permit DC51-140007 on 12/21/87. Specific Conditions 7 and 8 of Permit DC51-140007 address the relief drainage ditch system. These conditions require sampling and analysis of any off-site discharge from these ditches for primary drinking water standards, flow, dissolved oxygen ("DO"), pH, biological oxygen demand ("CBOD5") and total suspended solids ("TSS"). The County accepted those conditions. Saddlebrook Village Percolation Pond System was constructed pursuant to Permit DC51- 140007. Thereafter, the County applied for a construction permit (#DC51-145550) in 2/88 to expand the system's disposal capacity to .250 MGD. The application sought to construct additional percolation pond basins and extend the ditch system to the new pond area. The Department approved the County's application for Permit DC51- 145550 on 7/26/88. The permit issuance was preceded by an Intent to Issue finding that the County had provided reasonable assurances that the modified facility could be constructed and operated in accordance with applicable rules and standards. Specific Conditions 6, 6A and 7 of Permit DC51-14550 address the drainage ditch system. These conditions limit flow out of the drainage ditches to the rainy season and then only when the perimeter ditch flow does not exceed the upstream flow of the receiving water. The conditions also establish maximum effluent limits of 5 mg/l for CBOD5 and TSS, 3 mg/l for total nitrogen, 1 mg/l for total phosphorus and non-detectable for fecal coliform. Finally, the conditions require sampling and analysis of any off-site discharge from these ditches for flow, primary and secondary drinking water standards, dissolved oxygen, total nitrogen, total phosphorus, fecal coliform, pH, CBOD5, and TSS. The County accepted those conditions. Saddlebrook Village Percolation Pond System has operated pursuant to Permit DC51-145550, as needed through the final hearing. The surface water quality information required pursuant to Specific Conditions 6, 6A and 7 of Permit DC51-14550 has been presented to the Department. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permits DC51-140007 and DC51-14550. Also, the Department has never instituted an enforcement or compliance action due to discharges from the relief drainage ditches to off-site receiving waters. Saddlebrook Village Percolation Pond System was never upgraded to the .250 MGD capacity authorized by Permit DC51-14450. The County never applied for an operation permit covering this facility because the evolution of its wastewater system and changes in land use patterns resulted in the development of other disposal sites. Shady Hills Shady Hills Percolation Pond System is another of the County's percolation pond sites. Its design disposal capacity is .650 MGD, and its permitted capacity is .400 MGD. The County's initial construction permit application (#DC51-160307) for Shady Hills Percolation Pond System was filed in 1/89 or 2/89. The Department approved the County's application for Permit DC51- 160307 on 6/7/89. Permit issuance was preceded by an Intent to Issue dated 5/18/89 finding the County provided reasonable assurances that the facility could be constructed and operated according to applicable rules and standards. Initially, Permit DC51-160307 did not contain special conditions addressing the presence of drainage ditches. However, it was amended on 7/24/89, and the amended permit was assigned identification number DC51-160307A. Specific Conditions 3 and 4 of Permit DC51-160307A address the drainage ditch system and require that the drainage ditch system must be maintained to preclude off-site discharge of pollutants and that any water discharged off-site must meet state water quality standards. Shady Hills Percolation Pond System was constructed pursuant to Permit DC51-160307A, and has operated from late 1990 to present. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permit DC51-160307A. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the relief drainage ditches to off-site receiving waters. The County never applied for an operation permit covering Shady Hills Percolation Pond System because the associated WWTP is being expanded and the County decided to wait until the expansion program is completed to obtain the operation permit. Lake Padgett Lake Padgett (a/k/a, Land O'Lakes) Percolation Pond System is another of the County's percolation pond sites. Its design and permitted disposal capacity is 1.0 MGD. The initial construction permit application (#DC51-159899) for the facility was filed in 1989. The Department granted the County's application for Permit DC51- 159899 on 5/16/89. The permit issuance was preceded by an Intent to Issue dated 4/27/89 finding that the County had provided reasonable assurances that the facility could be constructed and operated in accordance with applicable rules and standards. Specific Condition 15 of Permit DC51-159899 addresses the drainage ditches. It requires that any discharge of water from the ditch system to receiving waters must comply with Section 403.086, Florida Statutes (Grizzle- Figg standards). The Lake Padgett Percolation Pond System was constructed and operated pursuant to Permit DC51-159899. The County obtained an operation permit (#DO51- 205681) for the system on 3/26/92. Specific Condition 20 of the operation permit addresses the relief drainage ditch system, and requires that any discharge of water from the ditch system to the receiving waters comply with Section 403.086. The facility has operated pursuant to Permit DO51-205681 since 3/26/92 to present. Off-site discharges from the relief drainage ditches at the Lake Padgett Percolation Pond System have not resulted in violations of Permit DC51- 159899 or Permit DC205681. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the drainage ditches to off-site receiving waters. Construction of Oakley Grove The County conducted a site specific hydrogeologic and soil survey and effluent disposal study for the Oakley Grove site in late 1988. The County's initial construction permit application (#DC51-159755) for Oakley Grove Percolation Pond System was filed with the Department in 1/89. The Department granted the County's application for Permit DC51- 159755 on 6/22/89. The design and permitted disposal capacity for Oakley Grove is .600 MGD. The Oakley Grove permit issuance was preceded by an Intent to Issue dated 6/2/89 finding that the County had provided reasonable assurance that the facility could be constructed and operated in accordance with applicable rules and standards. Permit DC51-159755 does not contain any special conditions addressing the drainage ditches. One reason for this is that the surface water management permit issued by the Southwest Florida Water Management District ("SWFWMD") for this site contains conditions requiring the County to monitor any off-site discharges from the drainage ditches and prohibiting any violation of surface water quality standards. Consequently, there was no need for the Department to impose a similar permit condition. Oakley Grove Percolation Pond System was constructed under Permit DC51-159755. It was completed in 4/91 and has operated under that permit until approximately November, 1993. Oakley Grove Percolation Pond System's actual disposal rate during the period of operation has been about .200 MGD. The "Detrimental Reliance." The County paid $1,200,000 to acquire the Oakley Grove site. The County declined to purchase other potential sites that also would have cost about $1,200,000 in 1988, but would have cost about $1,800,000 in 1993. Total costs for property acquisition, engineering and construction at Oakley Grove have been approximately $2,800,000. In addition, the Shady Hills, Lake Padgett, and Handcart Road Percolation Pond Systems were constructed or modified at a cost of about $2,600,000 after issuance of the construction permit for the Oakley Grove project. To the extent that the County is unable to use the .600 MGD design disposal capacity at Oakley Grove, and cannot replace the deficit, the County will have insufficient disposal capacity. It would cost the County over $500,000 to modify the Oakley Grove site so that it could make some other practicable use of the property, and it would take about 18 months and about $2,800,000 to construct and place into operation a replacement disposal facility. During the time it would take to construct and place into operation a replacement disposal facility for Oakley Grove Percolation Pond System, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. The County began planning a percolation pond system for the Moon Lake Road site in 1988, and paid $600,000 to acquire the site. The County does not own any of the potential effluent disposal sites that it passed over when acquiring the Moon Lake Road site. It would have cost about $660,000 to acquire a similar site in 1993. If the County is not permitted to construct the Moon Lake Road site, it cannot make any practicable use of that site. It would take about 18 months and about $500,000 to construct and place into operation a replacement wastewater effluent disposal facility for the Moon Lake Road site. During that time, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. Alleged Default Permit for Moon Lake Road. Upon receipt of the application for Permit DC51-189086, the Department sent the County a letter dated 12/12/90 requesting additional information. The 12/12/90 request for additional information cited some specific rules although not for each item of additional information sought. The County's consulting engineer responded, on behalf of the County, to the request for additional information by letter to the Department's Permitting Engineer, dated 2/28/91. The County response stated that the County disagreed with the Department's "judgment" that the County's application was incomplete. But it also stated in pertinent part: However, recognizing that responsible professionals disagree and the extent to which you are responsible for rejecting this work, we have attached appropriate information and clarifying responses to aid you in discharging your professional duty. . . . Assuming we receive authorization from our client and that you accept full professional responsibility for the decision we will consider modifying our documents accordingly. In any event we feel comfortable requesting that you consider our permit application complete. On 3/26/91, the Department requested additional information. Again, the request cited some specific rules although not for each item of additional information sought. The County never responded. Meanwhile, the parties began to discuss settlement. Finally, on 2/13/92, the Department issued its notice of intent to deny the application. Subject Matter Index of Agency Orders. The Department has no subject matter index of any of its orders taking action on permit applications between 1975 and 1981. After 1981, the Department has had a subject matter index of its orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings. There never has been a subject matter index of Department orders taking action on permit applications rendered in cases where there has not been a request to initiate formal or informal administrative proceedings. It would be impracticable, if not impossible, for the County to research such orders without a subject matter index. There is no central repository or computer database for all Department permit decisions. Some of its permitting files are located in its main Tallahassee office but many also are located in its seven district offices. Regardless of whether there is a central repository or computer database for orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings, there is no evidence that, after 1981, there have been any such orders reflecting the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. It was not proven that the County was unable, by reason of permitting files being located in both the main Tallahassee office and the various district offices, to research the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. Research at the seven district offices would have been more costly than if all files were centrally located, but there is no reason in this case to believe that the additional cost would have been prohibitive. Alleged Biased Review. David Rhodes is an unlicensed environmental specialist employed by the Department's Southwest District Office. His responsibilities mainly consist of reviewing geotechnical and hydrogeologic information submitted in support of permit applications. He was the Department's primary reviewer for geotechnical and hydrogeologic information submitted in support of the County's applications for Permit DO51-194674 (Oakley Grove) and Permit DC51-189086 (Moon Lake Road), as well as Permit DC51-169994 (Handcart Road Percolation Pond System). He recommended denial of all three permit applications. On 2/18/91, David Rhodes contacted a County employee, Marshall Hughes, concerning the County's construction permit application for the Handcart Road Percolation Pond System and suggested "off-the-record" that the County discharge its geotechnical consultant, Richard Mortensen, and replace the proposed percolation pond system with a sprayfield. The County declined to terminate Mortensen. When Mortensen learned of David Rhodes's attempt to have the County fire him, Mortensen contacted David Rhodes's supervisor, Judith Richtar, on 3/4/91 to discuss this incident. Richtar told Mortensen that she was unaware of the matter, but would look into it and get back in touch with him. When Mortensen did not hear from Richtar for two weeks, he called her. She told him that David Rhodes had denied everything. Mortensen later learned that David Rhodes made comments and insinuations to two of his other clients disparaging his work performance and suggesting that his engineering firm was not competent. Mortensen was not satisfied with Richtar's handling of his complaint. On 4/25/94, he contacted Richtar's superior, Dr. Richard Garrity. Garrity asked for a letter detailing the incident. Mortensen wrote Garrity a letter dated 5/29/91 describing David Rhodes's communication with Hughes and requesting that Richtar be disciplined for her handling of this situation. David Rhodes was suspended by the Department without pay; however, Richtar was not disciplined. David Rhodes also wrote Mortensen a letter of apology for his communication with Marshall Hughes. The letter states his comments to Hughes should not be interpreted as a personal vendetta against Mortensen's engineering firm and that he hoped the incident could be put behind them so they could continue working on future projects. Rhodes admitted that he felt embarrassed after Garrity suspended him without pay and suggested that he write a letter of apology to Mortensen. About 3 months after David Rhodes's letter of apology, another Department employee, Joe May, filed 5 complaints with DBPR against Mortensen's P.E. license. The complaints identified the Handcart Road, Moon Lake Road, Oakley Grove, Lake Padgett and Westchase projects. (All of these are County projects, except for Westchase.) The complaints identified Richtar as a "contact person." Richtar knew about May's complaints before they were filed with DBPR and acquiesced to being identified in them as a contact person. Like David Rhodes, May is an unlicensed environmental specialist employed in the technical support section of the Department's Southwest District Office in Tampa. His responsibilities include reviewing geotechnical and hydrogeologic information submitted in support of permit applications. However, he had no permit review involvement with respect to the Oakley Grove, Moon Lake Road, Handcart Road and Lake Padgett projects. Instead, the hydrogeological aspects of those projects were assigned to May's colleague, David Rhodes. Mortensen's attorney responded to May's 5 complaints in January, 1992. Copies of Mortensen's technical reports were attached to the response, including the site specific studies he had prepared for the Oakley Grove and Moon Lake Road sites. DBPR referred May's complaints and Mortensen's technical reports to an independent engineering firm, Geotechnical and Environmental Consultants, Inc. for review. This firm prepared a report on January 21, 1993. The report exonerated Mortensen and found that May's complaints were without merit. DBPR took May's 5 complaints before a probable cause panel of the Board of Professional Engineers. The panel found there was no probable cause to pursue them. Mortensen was informed of this finding by DBPR's 8/31/93 letter. The Department has allowed David Rhodes to remain on the permit review team on the County's permit applications for the Oakley Grove and Moon Lake Road Percolation Pond Systems despite the fact Mortensen is the geotechnical consultant on these projects. It is not found that the continued presence of Rhodes and Richtar on the permit review team for the County's permit applications demonstrates the Department's prejudice against the County and its consultants. It is not found that the Department's decisions to deny the County's permit applications in this case were interposed for an improper purpose or that the denials were based on the permit reviewers' personal animosity against the County and its consultants, rather than on the merits of the facilities. However, relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order as follows: In Case No. 92-1604: Denying the County's amended application for a permit (application no. DC51-189086) to construct a sprayfield reuse disposal system at .215 MGD and a rapid rate infiltration basin reuse (percolation pond) disposal system at .185 MGD at Moon Lake Road, subject to reconsideration after completion and review of a fracture trace analysis, a ground penetrating radar analysis (if needed), and an appropriate WQBEL study. If the application subsequently is granted, including among the specific conditions (1) a requirement for systematic load testing and monitoring of ground and surface water quality under the construction permit, as a condition for issuance of an operation permit, and (2), if appropriate, requiring monitoring, reporting and safely repairing subsidences, collapse features and sinkholes in and around discharge points. See, e.g., Specific Condition 12, Hudson WWTP Permit DC51-130307 (County Ex. 170). Case No. 92-1653: Denying the County's amended application for a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.600 MGD, subject to reconsideration after completion and review of: (1) additional systematic load testing, (2) systematic monitoring of ground and surface water quality, and (3) an appropriate WQBEL study. Granting the County a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.075 MGD, thereby supporting the operation of its Wesley Chapel Wastewater Treatment Plant to the extent of .075 MGD pending load testing, systematic monitoring and load testing and reconsideration of the application for an operation permit for more capacity, up to .600 MGD. Denying the County's amended application for a permit (application no. DO51-194674) to operate its Wesley Chapel Wastewater Treatment Plant at .600 MGD and limiting its capacity to the available permitted disposal capacity. Case No. 92-1654: Denying, as moot, the County's application for a permit (application no. DO51-199516) to reactivate the operation of its Ryals Road rapid rate infiltration basin reuse (percolation pond) disposal system at .1075 MGD. RECOMMENDED this 31st day of October, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted but subordinate and unnecessary. Accepted and incorporated. Speculative and unnecessary. 6.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted but subordinate and unnecessary. 14.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-34. Accepted but subordinate and unnecessary. 35.-43. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 44. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 45.-53. Accepted and incorporated to the extent not subordinate or unnecessary. 54. Accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation should have been done. 55.-58. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 59. Rejected as not proven. 60.-61. Accepted but subordinate and unnecessary. 62. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation of soil permeability should have been done. 63.-76. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. ("Southwest" in 76. should be "Southeast.") 77.-79. Accepted but subordinate and unnecessary. 80.-92. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 95.-113. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusions of law. First sentence, accepted but subordinate and unnecessary; second sentence, conclusion of law. Conclusions of law. 117.-122. Accepted but generally subordinate and unnecessary. (There is no indication in this case that the Wesley Chapel WWTP cannot operate as designed, as permitted for construction, and as constructed, subject to available disposal capacity.) 123.-148. Accepted but subordinate and unnecessary. As to (c) and (d), rejected as not proven (Oakley Grove, without WQBEL studies, and Ryals Road without further investigation into significance of down-warping.) Otherwise, accepted: as to Ryals Road, moot, subordinate and unnecessary; as to Oakley Grove, incorporated to the extent not subordinate or unnecessary. As to (c) and (d), rejected as not proven without WQBEL studies and fracture trace analysis and, if then indicated, GPR. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. 154.-155. Accepted but subordinate and unnecessary. 156.-158. Accepted and incorporated to the extent not subordinate or unnecessary. 159. Rejected as not proven that the use of the label "perimeter ditches" is "not accurate" or that the County used the term only because the Department did. Rather, both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Otherwise, accepted and incorporated. 160.-161. Accepted and incorporated to the extent not subordinate or unnecessary. 162. Accepted in the sense that the collection of reclaimed water in the ditches was not the primary goal of the drainage system. However, it was recognized that the collection of some reclaimed water in the ditches, especially under some weather conditions, was a necessary result of the use of the drainage features to improve the performance of the percolation ponds. 163.-166. Accepted and incorporated. 167.-169. Rejected as not proven that the Department has "changed position" without promulgating any rule. The County's own permitting experience has shown that the Department has had concerns about the performance of percolation pond systems with perimeter drainage features. Those concerns have evolved over time. Before April, 1989, those concerns were given expression in special conditions in permits. In April, 1989, F.A.C. Rules 17-610.517(2) and 17-610.522 were promulgated. The evidence does not prove that, before 9/15/89, the Department would not ever consider water in drainage ditches 100 feet from percolation ponds to be "reclaimed water." Accepted but subordinate and unnecessary. Rejected as not proven that approval or denial would be "automatic." The question was whether WQBELs or Grizzle-Figg standards would be applied. Rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. 173.-174. Accepted but unnecessary. (Current practice simply reflects the application of the current rules.) Rejected as not proven that the Department position had "completely changed," that the Department was "inalterably opposed to the ditches," or that the Department had before it the "reasonable assurances" provided at the other sites. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Again, rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven; also, subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Rejected as not proven that the Department stipulated that F.A.C. Rule 17-610.517(2) does not apply. Also, conclusion of law. Accepted but subordinate and unnecessary. 186.-187. The implication that the Department does anything other than follow F.A.C. Rule 17-610.521 is rejected as not proven and as conclusion of law. 188.-190. Rejected as not proven that reclaimed water infiltrating ditches at Oakley Grove and Moon Lake Road has been or will be "virtually indistinguishable" from other ground water. Otherwise, generally, accepted, and 100 feet should be enough in most circumstances. But the facts of individual cases must be considered to determine whether treatment afforded by 100 feet makes reclaimed water "virtually indistinguishable" from other ground water so as to no longer be considered reclaimed water. Also, the concentration of discharges via a ditch system is another factor to be considered. 191.-192. Accepted and incorporated. 193.-194. Rejected as not proven that they could be modified "easily" or without decreasing the permittable disposal capacity. Accepted (assuming they are built as designed) and incorporated. Last word should be "dry"; otherwise, accepted and incorporated. Accepted and incorporated. 198.-201. Rejected in part as being subordinate to facts not proven and contrary to those found. (Cady's testimony explained some of the wet ditch bottoms, but not all of them, and not the wet slopes of the berms.) Other parts, accepted and subordinate to facts found. 202.-206. Generally accepted and incorporated to the extent not subordinate or unnecessary. (However, the approach makes certain assumptions, and the estimates or predictions will not be accurate if the assumptions are not. In the case of Oakley Grove, the assumptions concerning hydraulic capacity do not appear to have been accurate.) 207.-211. Rejected as not proven. See 202.-206., above. 212. Accepted and incorporated. 213.-219. Accepted and incorporated to the extent not subordinate or unnecessary. But see 202.-206., above. 220.-226. Rejected as not proven as to Oakley Grove. See 202.-206., above. Accepted as to Moon Lake Road. Accepted as predictions based on the given assumptions, particularly as to hydraulic capacity of the site. 227.-230. Recitation of the experts' opinions, accepted as accurate recitations. Rejected that plant-life utilization of inorganic nitrogen allays Fricano's concerns. To the exact contrary, his concern is that plant-life will utilize the inorganic nitrogen in ways organic nitrogen would not be used, leading to undesirable environmental impacts. Also, rejected as not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters. 231.-232. Accepted and incorporated. 233.-234. Rejected as not proven. (The County expert's opinion assumed only wet weather discharges. Also, not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters.) 235.-239. Accepted and incorporated to the extent not subordinate or unnecessary. 240.-243. Accepted but subordinate and unnecessary. 244. Accepted and incorporated to the extent not subordinate or unnecessary. 245.-248. Accepted but subordinate and unnecessary. 249. Rejected as not proven that this can be done "easily." See 193.- 194., above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 250.-251. Rejected as not proven. 252.-253. For both: last two sentences, rejected as not proven; the rest, accepted but subordinate and unnecessary. (F.A.C. Rule Chapter 17-600 forms did not apply.) Second and fourth sentences, rejected as not proven. The rest is accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. 257.-258. Accepted but subordinate and unnecessary. 259. Rejected as to the location of some ditches within 100 feet of the percolation ponds. Otherwise, accepted but subordinate and unnecessary. 260.-261. Accepted but subordinate and unnecessary. 262. Rejected as not proven. 263.-269. Accepted but subordinate and unnecessary. 270. Rejected as not proven. 271.-279. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted and incorporated to the extent not subordinate or unnecessary. (The "change in policy" is reflected in F.A.C. Rules 17-610.517(2) and 17-610.522.) Accepted and incorporated. As to (b) and (c), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. As to (c), rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 287.-289. Rejected as not proven and as conclusion of law. 290. Accepted and incorporated. 291.-293. Accepted and incorporated to the extent not subordinate or unnecessary. 294.-295. Conclusions of law. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. Accepted but subordinate and unnecessary. 299.-301. Accepted and incorporated. 302. Accepted but subordinate and unnecessary. 303.-308. Rejected as not proven without WQBEL studies. Rejected as not proven. Rejected as not proven. (The SWIM plans were not in evidence, and it is not clear whether they incorporate by reference the permitting requirements at issue in these proceedings.) 311.-312. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven without WQBEL studies. 316.-317. As to (g) and (h), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 318.-323. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 324. Conclusion of law. 325.-326. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) First sentence, rejected as not proven; rest, accepted but subordinate and unnecessary. 330.-331. Subordinate and unnecessary. See 353. 332. Rejected as not proven. 333.-334. Subordinate and unnecessary. See 353. 335. Last sentence of 335., rejected as not proven; otherwise, accepted. 336.-350. Subordinate and unnecessary. See 353. 351. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 352.-353. Subordinate and unnecessary. See 353. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Conclusion of law. Accepted and incorporated. Accepted but subordinate and unnecessary. 361.-362. Rejected that it was an offer to settle this case. Otherwise, accepted but subordinate and unnecessary. 363.-367. Accepted but subordinate and unnecessary. 368.-371. Accepted and incorporated. 372.-401. Accepted but subordinate and unnecessary. 402. Rejected as not proven. (They result from a combination of the nitrates in the reclaimed water and nitrates imbedded in the soil matrix from prior agricultural use. Also, unlike the Oakley Grove site, nitrate exceedances were observed at Wildcat Grove before application of any reclaimed water.) 403.-405. Accepted and incorporated to the extent not subordinate or unnecessary. 406. Rejected as not proven that reclaimed water was being applied at the time. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 407. Rejected as not proven when nitrate exceedances will end. Otherwise, accepted and incorporated. 408. Rejected as not proven. See 406., above. 409. Rejected as not proven. See 407., above. 410.-416. Accepted but subordinate and unnecessary. 417. Accepted but subordinate and unnecessary. 418.-421. Rejected as not proven. 422. Accepted but unnecessary. 423. Rejected as not proven that their concerns are "unfounded" unless the source of reclaimed water is restricted to Deer Park WWTP. Otherwise, accepted but unnecessary. 424. Assuming performance in accordance with the application, accepted but unnecessary. 425.-430. Accepted and incorporated to the extent not subordinate or unnecessary. 431. First sentence, accepted and incorporated to the extent not subordinate and unnecessary; second sentence, rejected as not proven. 432.-445. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) First sentence, rejected as not proven; second sentence, conclusion of law. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 457.-465. Accepted and incorporated to the extent not subordinate or unnecessary. 466.-470. Rejected as not proven without WQBEL studies. 471. Last sentence, accepted and incorporated; rest, rejected as not proven without WQBEL studies. 472. Rejected as not proven. See 310., above. 473.-475. Accepted but subordinate and unnecessary. 476. Rejected as not proven. 477.-478. Accepted but subordinate and unnecessary. Rejected as not proven (that the discharges are.) As to (d), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven without WQBEL studies. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. 484.-485. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) Ultimate and penultimate sentences, rejected as not proven. The rest is accepted (although the fourth sentence is not complete) and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. First sentence, accepted and incorporated; rest, rejected as not proven. 491.-493. Accepted and incorporated to the extent not subordinate or unnecessary. 494. Accepted and incorporated to the extent not subordinate or unnecessary. 495. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, rejected as not proven. 496.-499. Accepted and incorporated to the extent not subordinate or unnecessary. 500. Last sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary. 501. Accepted but largely subordinate and unnecessary. (Also, Saddlebrook was permitted under different rules; now, the special conditions can only be established after WQBEL studies.) 502.-504. Accepted and incorporated to the extent not subordinate or unnecessary. (However, it is understood that the constant head cell approach proved acceptable for purposes of estimating hydraulic capacity of the site but that it still did not accurately portray what would happen in the ditches and adjacent wetlands.) 505.-509. Accepted and incorporated to the extent not subordinate or unnecessary. 510. Rejected as not proven that the criticism was immaterial. See 502.- 504., above. 511. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 512.-524. Accepted and incorporated to the extent not subordinate or unnecessary. 525. Rejected as not proven that it would without fracture trace analysis and, if then indicated, the GPR. (Accepted that it might.) 526. Rejected as not proven that he was directed to "speak in favor of the County's permit application." 527. Accepted and incorporated to the extent not subordinate or unnecessary. 528. Except that 500 feet is a minimum setback distance, accepted and incorporated to the extent not subordinate or unnecessary. 529.-530. Accepted and incorporated to the extent not subordinate or unnecessary. 531. Rejected as not proven without fracture trace analysis and, if then indicated, the GPR. See 525., above. 532.-534. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 535. Accepted but subordinate and unnecessary. 536.-537. Rejected as not proven without WQBEL study. 538.-543. Accepted and incorporated to the extent not subordinate or unnecessary. 544. Rejected as not proven. (Rather, the County stated that it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a) and that it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit).) 545.-546. Rejected as not proven. Also, moot, subordinate and unnecessary. 547.-552. Accepted and incorporated to the extent not subordinate or unnecessary. 553.-557. Accepted but moot and unnecessary. Rejected as not proven. Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. 563.-566. Accepted but moot, subordinate and unnecessary. 567. Subordinate to facts not proven. 568. First sentence, rejected as not proven. Also, rejected as not proven that the Ryals Road sinkhole was "small." Otherwise, accepted. All moot and unnecessary. 569. Rejected as subordinate to facts not proven. 570. Last sentence, rejected as not proven. Otherwise, accepted. All moot, subordinate and unnecessary. 571.-573. Accepted but moot, subordinate and unnecessary. Last sentence and word "stable," rejected as not proven. (He stated that the clay was "competent" and that the GPR could detect sinkholes down to 20 feet, but he did not comment specifically on the significance of the down- warping across the site and in the southeast corner.) Otherwise, accepted. All moot, subordinate and unnecessary. Accepted but moot, subordinate and unnecessary. Rejected as not proven that it is "unknown." The evidence is not clear, but Richtar thought the sinkholes at Oaks Royal opened after construction. Otherwise, accepted but moot, subordinate and unnecessary. Accepted. Subordinate, in part to facts not proven and in part to facts supported by the greater weight of the evidence. Moot, subordinate and unnecessary. Except for characterization of sinkhole as being "small," accepted but moot, subordinate and unnecessary. Last sentence, rejected as not proven. (It is not a substitute for further investigation into the cause of the down-warping across the site and in the southeast corner.) Otherwise, accepted but moot, subordinate and unnecessary. Rejected as not proven. 581.-582. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected as not proven and conclusion of law. 583. Second sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 584. First and last sentences, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. 585. Accepted and incorporated to the extent not subordinate or unnecessary. 586. Accepted (assuming no new capacity) and incorporated to the extent not subordinate or unnecessary. 587.-588. Rejected as not proven. (It assumes no new capacity.) 589.-590. Accepted and incorporated to the extent not subordinate or unnecessary. 591. Rejected as not proven. 592.-593. Accepted and incorporated to the extent not subordinate or unnecessary. 594. Rejected as not proven. 595. Accepted but moot, subordinate and unnecessary. 596. Third sentence, not proven. Rest, accepted but moot, subordinate and unnecessary. 597.-599. Accepted but moot, subordinate and unnecessary. 600. Accepted (assuming no new capacity) but moot, subordinate and unnecessary. 601. Rejected as not proven. Also, moot, subordinate and unnecessary. 602. Accepted and incorporated to the extent not subordinate or unnecessary. 603.-604. Rejected as not proven. Rejected as not proven that he is "one of the most vocal opponents." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes contacted Hughes or that it was Rhodes's primary purpose to suggest Mortensen's discharge. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes suggested Mortensen was incompetent. (Mortensen alleges he made "comments and insinuations" that "basically suggested that MEI was incompetent.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 610.-620. Accepted and incorporated to the extent not subordinate or unnecessary. 621. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 622. Rejected as not proven that Rhodes and Richtar were attempting to have the County "fire" Mortensen. Also, rejected as not proven that the "Department" will not be "truly impartial." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation. 623. Rejected as not proven. Also, subordinate and unnecessary. (The issue is whether they should be granted, not whether the reviewers should have recommended that they be granted.) Respondent's Proposed Findings of Fact. The Department's proposed findings of fact are numbered separately by facility: Oakley Grove Accepted and incorporated. "Rimmed" rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated. 3.-8. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (No "wastewater" would discharge from the ditch system.) Rejected as contrary to the greater weight of the evidence and facts found that this was "revealed" by staff inspections. (Under certain conditions, and at certain application rates, it was expected.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Subordinate to facts found. Rejected as contrary to the greater weight of the evidence and facts found. At the time of some if not all of the Department inspections, water was being diverted from some of the main stormwater collection ditches. 13.-18. Generally accepted and incorporated to the extent not subordinate or unnecessary. 19. "Wastewater effluent ponds" is inaccurate description. Otherwise, accepted and incorporated. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25. Rejected as contrary to the greater weight of the evidence and facts found, and as conclusion of law, that it is "typical." (The proposed finding seems to be describing a Level II WQBEL study.) 26.-29. Accepted and incorporated to the extent not conclusion of law. (29. again seems to refer to a Level II WQBEL study.) 30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-36. Accepted. Largely subordinate to facts found. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusion of law. Accepted and incorporated. 40.-42. Conclusion of law. Accepted and incorporated. If "different nitrogen" means other than inorganic, accepted but subordinate and unnecessary. Rejected as unclear what "distinguishes the type and amount of nitrogen" and what "numerous conditions" means. Accepted and incorporated to the extent not subordinate or unnecessary. 47.-49. Accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not conclusion of law. 52.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Accepted and incorporated to the extent not conclusion of law. 57.-58. Accepted and incorporated to the extent not conclusion of law. Rejected as conclusion of law and as not proven what is "typical." Accepted and subordinate to facts found. 61.-62. Accepted and incorporated to the extent not conclusion of law. 63.-82. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 83.-102. Accepted and incorporated to the extent not subordinate or unnecessary. 103. Rejected as not clear from the evidence whether reclaimed water was being applied on those dates. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 104.-106. Accepted and incorporated to the extent not subordinate or unnecessary. 107.-110. Accepted but subordinate and unnecessary. (These violations were temporary aberrations in otherwise proper operation of the facility. They were corrected and do not bear significantly on the question whether the County has given reasonable assurances.) Last sentence, rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (The manual was maintained at a different location.) Moon Lake Road 1.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. One was proposed in evidence presented at the hearing but not in the application. 15.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25.-26. Conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. "Any" is rejected as contrary to the greater weight of the evidence. Accepted and incorporated. 30.-32. Accepted. Subordinate to facts found. Accepted and incorporated to the extent not conclusion of law. First sentence, unclear; second sentence, accepted but subordinate and unnecessary. Accepted. Subordinate to facts found. 36.-38. Accepted and incorporated to the extent not conclusion of law. "Effluent" rejected to the extent that it infers something other than "reclaimed water." Rejected as to Deer Park WWTP; accepted as to the others. Accepted and incorporated. 41.-43. Accepted and incorporated to the extent not subordinate or unnecessary. 44.-49. Accepted and incorporated to the extent not subordinate or unnecessary. 50.-52. Rejected as contrary to the greater weight of the evidence and facts found that the rainfall/evapotranspiration differences are great enough to have a significant impact on site capacity. The Tampa Airport data was the best to use at the time of the application. Other, closer data became available later and were considered as part of the County's rebuttal case. 53. Rejected as contrary to the greater weight of the evidence and facts found that the design of the model (constant head cells, boundaries, and single- layer) has a impact on site's hydraulic capacity. (It is understood that the significance of the design of the model is that it does not show flow into the ditches and adjacent wetlands or the relationship between surficial and Floridan aquifers.) 54.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Rejected as contrary to the greater weight of the evidence and facts found. 57.-58. Accepted and incorporated to the extent not subordinate or unnecessary. See 53., above. Rejected as contrary to the greater weight of the evidence and facts found. Accepted but subordinate and unnecessary. 61.-63. Rejected as contrary to the greater weight of the evidence and facts found. 64.-65. Accepted but subordinate and unnecessary. 66. Rejected as contrary to the greater weight of the evidence and facts found. See 50.-52., above. Limiting storage needs to the .215 MGD design sprayfield capacity only, there is no real question as to the needed storage capacity. Neither differences in the rainfall/evapotranspiration data nor differences in the source of the reclaimed water would make storage capacity deficient. Ryals Road 1.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that it was "effectively withdrawn." Otherwise, accepted and incorporated. Rejected as not supported by the evidence that a $400 fee was paid on July 12, 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 13.-14. Accepted and incorporated to the extent not subordinate or unnecessary. 15.-26. Accepted but moot, subordinate and unnecessary. 27. Rejected as contrary to the greater weight of the evidence. Also, moot, subordinate and unnecessary. 28.-33. Accepted but moot, subordinate and unnecessary. 34. Rejected as not supported by the evidence that the residential density is "high". Otherwise, accepted but moot, subordinate and unnecessary. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire de la Parte, Gilbert & Bales, P.A. P.O. Box 2350 Tampa, Florida 33601-2350 Douglas H. MacLaughlin, Esquire Francine M. Ffolkes, Esquire Keith C. Hetrick, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Respondent, Albert R. Stewart applied to take the examination given on August 3, 1979, to receive a Class "C" waste-water treatment plant operator license. At the examination site of Clearwater, Florida, on the scheduled examination date, the examinees were instructed to print their names on the examination answer sheet and to sign their names on the cover of the examination booklet. At the request of Mr. Stewart, Mr. Alan Ferguson appeared and took the examination in Clearwater, Florida, on August 3, 1979, in the place of and on behalf of Mr. Stewart. Mr. Ferguson signed the examination cover (DER Exhibit 2) and answer sheet (DER Exhibit 3) with the name of "Albert Stewart". The signature on the examination booklet does not resemble any of the signatures of Albert R. Stewart on his application for this examination or for any previous exams. The signature does resemble that of Mr. Ferguson in his prior correspondence with the Department of Environmental Regulation. (Mr. Ferguson presently holds a Class "C" permit). The testimony of Mr. Stewart that he actually took the examination administered on August 3, 1979, is not credible. To allow Mr. Ferguson to be admitted to the examination, Mr. Stewart provided him with his social security card and his driver's license. He also gave Mr. Ferguson twenty dollars ($20.00) for his expenses incurred in traveling to and from Clearwater. At the time of the examination, Mr. Stewart who is presently employed as a supervisor for the Waste-Water Treatment Plant for the City of Inverness, was the supervisor of Mr. Ferguson. Mr. Stewart by his agreement with Mr. Ferguson to take the examination in his place, has falsely represented to DER that he took the August 3, 1979 examination. This false representation occurred in the process of his application for a waste-water treatment plant operator license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation immediately revoking the Class "C" waste-water treatment plant operator's license granted to Respondent, Albert R. Stewart. DONE and ENTERED this 25th day of July, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1980. COPIES FURNISHED: Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Albert Roscoe Stewart Post Office Box 306 Crystal River, Florida 32629 =================================================================
The Issue The issues in this case are whether Respondent, Robert J. Simmons, Jr. (Simmons), should be issued: an Environmental Resource Permit (ERP) under Part IV of Chapter 373, Florida Statutes, and Titles 62 and 40E, Florida Administrative Code; and a Consent to Use Sovereign Submerged Lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. (All citations to Florida Statutes refer to the 2000 codification; all Florida Administrative Code citations are to the current version.)
Findings Of Fact The Applicant Respondent, Robert Simmons, Jr. (Simmons), is the applicant for: a consent of use of sovereign submerged lands owned by the Trustees of the Internal Improvement Trust Fund; and an ERP to construct a private, single-family, residential dock for access to Little Munyon Island and to fill jurisdictional wetlands on the island in order to construct a residence on the island. Simmons has offered to purchase Little Munyon Island and the 16 acres of privately-owned, mostly submerged land surrounding it for $2.6 million. Under the contract of purchase, Simmons is required to close by April 2, 2002. If the contract to purchase closes, Simmons plans to construct an 8,000 to 10,000 square-foot residence, with swimming pool, on Little Munyon Island. He estimates that the residence, once built, will be worth $12 million to $15 million. Little Munyon Island. Little Munyon Island is a 1 1/2 acre, undeveloped and unbridged island located in the Lake Worth Lagoon, which has been designated Class III waters of the state. Little Munyon Island is a natural island, one of only three in the Lake Worth Lagoon. Anasthasia rock atop the Pleistocene formation comes to the surface at the site. The island has been enlarged over the years by placement of spoil from dredging of the Intracoastal Waterway (ICW) to the west of the island. In addition, due to erosion on the west and accretion on the east, the island has shifted to the east. Now the eastern edge of the accreted eastern side actually is outside the 16 acres described by the deed Simmons seeks to have conveyed to him. Little Munyon Island is located just south of the John D. MacArthur State Park and Big Munyon Island. The waters in the Park have been designated as Class II, or Outstanding Florida Waters under Florida Administrative Code Rule (Rule) 62-302.700(2)(b). The boundary of the Park is approximately 1,100 feet north of Little Munyon Island. The eastern boundary of the ICW right-of-way is located about 220 feet west of Little Munyon Island; the centerline of the ICW is about 550 feet west of the island. Singer Island is an Atlantic Ocean barrier island approximately half a mile east of Little Munyon Island. The evidence was that less of Little Munyon Island is inundated by high tides than used to be. As a result, more of the island's vegetation was native in the past. Perhaps due to the deposit of spoil material, relatively little of the island is inundated any more. As a result, exotic vegetation such as Australian pine, Brazilian pepper, and seaside mahoe has invaded and comprises about 35 percent of the island's vegetation. The native vegetation includes red, black and white mangroves, buttonwood, and cabbage palms. Although it is private property, Little Munyon Island is currently being used quite extensively by the public, without authorization from the owner. Boaters frequent the island, leaving trash and other debris behind. Visitors to the island have chopped down native vegetation, such as mangroves, in order to build campfires on the island. Boaters visiting the island for recreational activities often ground their boats around the island. Grounding and extricating boats often causes the boats' propellers to dredge up seagrasses and dig holes in seagrass beds. The Lake Worth Lagoon. The Lake Worth Lagoon is a saltwater estuary. It stretches about 21 miles south from PGA Boulevard and varies in width from about 1 to 1 1/2 miles. The Lagoon is tidally influenced twice per day through the Lake Worth Inlet, which is located about 2-3 miles south of Little Munyon Island. The Inlet connects the Lagoon with the Atlantic Ocean. There is a tidal range of 2.8 to 2.9 feet between mean high and mean low tides in the vicinity of the island. Much of the historical extent of the Lagoon has been filled, and it is located in the most urbanized portion of Palm Beach County. From 1940 to 1975, the Lagoon lost more than 87 percent of its mangroves due to shoreline development. Little Munyon Island is located roughly in the middle of a large bay in the northern part of the Lagoon, which has not been filled or bulkheaded. This bay is one of the few remaining natural areas of the Lake Worth Lagoon. The Earman River, also known as the C-17 canal, discharges into the Lake Worth Lagoon west and a little north from Little Munyon Island to the west of the ICW. The part of the Lake Worth Lagoon around Little Munyon Island is vegetated with very high quality seagrasses, including Cuban Shoal Grass (Halodule wrightii), Turtle Grass (Thalassia testudinum), Manatee Grass (Syringodium filiforme), Paddle Grass (Halophila decipiens), and Johnson Grass (Halophila johnsonii). Johnson Grass is a federally listed threatened species of seagrass, but it tolerates a range of water quality and bottom sediments and is relatively abundant in the Lake Worth Lagoon. Five of the six types of seagrasses found in the Lagoon occur in the vicinity of Little Munyon Island. The area around Little Munyon Island is the best area of seagrasses in all of Palm Beach County, and it has the highest density of seagrasses. The quality of seagrasses in the area is "as good as it gets in the Lake Worth Lagoon." The tide from the Lake Worth Inlet flows north and south through the ICW. As a result, the same waters pass both Little Munyon Island and Big Munyon Island as the tide ebbs and flows. Silt and suspended particles in the water column around Little Munyon Island could be carried by the tide to the Class II waters around Big Munyon Island. There is a high degree of biological diversity in the area around Little Munyon Island. The seagrass beds and flats around Little Munyon are a breeding ground for fish and other aquatic resources. The portion of the Lake Worth Lagoon around Little Munyon has been identified as Essential Fish Habitat by the South Atlantic Fishery Management Council and the National Marine Fisheries Service. It is essential fish habitat for postlarval, juvenile, and adult brown and pink shrimp, red drum, and gray snapper. Seagrasses protect small fish and provide a food source for a whole ecosystem that starts with the seagrasses. Seagrasses provide a valuable source of oxygen, food, and shelter. One square meter of seagrass can generate 10 liters of oxygen per day. They may be one of the most prolific ecosystems in the world in terms of biomass production. The water quality in the Lake Worth Lagoon is improving due to stormwater regulation and reduction in the discharge of sewage effluent. This has caused the quality of seagrasses in the area to improve over the past 18 years. Seagrass recruitment has occurred around the area, and new kinds of seagrasses have colonized since 1983. It is reasonable to believe that seagrasses will continue to colonize around the island if water quality continues to improve. If conditions are right, seagrasses can spread and colonize areas where they do not now occur. The Proposed Project Initial Application In the initial application for ERP and consent of use filed on January 20, 2000, Simmons proposed to construct an L-shaped, 5,208 square foot dock made of poured concrete, 10-12 inches thick. The proposed dock's 12-foot wide access pier was to extend westward from shore for 306 feet, with a 12-foot wide terminal platform extending 140 feet to the south. The entire dock was to be elevated to 5.0' NGVD (National Geodetic Vertical Datum of 1929). The entire dock was to be within privately-owned submerged lands, but intended mooring on the western side of the terminal platform would have been over sovereign submerged lands. Initially, the access pier was to cross the center of a sunken barge that lies approximately 240 feet off the island's western shore. In a response on March 10, 2000, to DEP's request for additional information (RAI), the footprint of the proposed dock was shifted south so that the access pier crossed just south of the sunken barge, where Simmons' seagrass consultant, CZR, said there were fewer seagrasses. This also shortened the access pier to 296 feet and reduced the overall area of the docking facility to 5,088 square feet. In addition, mooring piles to the west of the terminal platform were eliminated; as modified, four mooring piles were to be placed parallel to the terminal platform, on the eastern side. As modified, the entire dock structure and mooring area was located within the privately-owned submerged lands. The dock was specifically designed for use in construction of an 8,000 to 10,000 square-foot residence, plus swimming pool, on the island. The terminal platform was designed so that Simmons could moor barges between the terminal platform and the mooring piers and offload needed construction materials and equipment. It was contemplated that the barges would be 55 feet long by 24 feet wide and draw three and a half feet of water and that they would be maneuvered by push-boats. The dock also was designed to permanently moor a vessel 120-140 feet long drawing five and a half feet of water. Simmons intends to live with his family in the proposed new residence on Little Munyon Island. He currently owns a house on the mainland in North Palm Beach on the western side of the Lake Worth Lagoon across the ICW from Little Munyon Island. He plans to park cars and use a dock at that location and operate his boat back and forth to Little Munyon Island. This would necessitate crossing the ICW several times a day. To construct the planned residence and pool on Little Munyon Island, the application proposed construction of a retaining wall around the island, generally no more than 5 feet landward of the perimeter wetlands on the island. Approximately 28,500 square feet (0.65 acres) would be within the retaining wall. Three feet of fill would then be placed within the retaining wall to elevate the pad for the residence to about 6 feet above sea level. Filling the Island would necessitate cutting down all the vegetation inside the retaining wall and filling 0.15 acres of jurisdictional wetlands consisting of mangroves and other wetland species. In the initial application, utilities were going to be provided by directionally-drilling a forced sewer main, water line, electric, cable, phone, and natural gas line from State Road A1A on Singer Island, under sovereign submerged lands in the Lake Worth Lagoon, to Little Munyon. In concerns expressed in the RAI about resource impacts and extension of utilities to an undeveloped coastal island, Simmons deleted the subaqueous utility lines in the modification on March 10, 2000. June Modification During a low, low (spring) tide in April 2000, CZR noticed for the first time that there was a sand bar between the northern third of the sunken barge and Little Munyon Island. In June of 2000, Simmons again modified his application to shift the docking facility back north so that the access pier was aligned with the sand bar. Simmons also proposed to extend the dock out into deeper water, making the dock 376 feet long, and placing the last 33 feet of the dock and the entire terminal platform (a total of 1,230 square feet) on and over sovereign submerged lands. The terminal end of the dock was modified to be 100 feet long by 10 feet wide. The width of the access pier also reduced generally to ten feet; however, over a stretch of 70 feet of the access pier to the west of the sunken barge (where it crossed lush seagrasses), the width of permanent concrete access pier was further reduced to four feet. (Three-foot high, hinged, grated railings designed to fold down would widen the access pier to ten feet on demand. See Finding 37, infra.) These modification reduced the overall size of the docking facility to 4,240 square feet. In addition, the decking was elevated higher, to 5 feet above mean high water (MHW). The mooring piles on the east side of the terminal platform (now over lush seagrasses) were deleted. The house pad and retaining wall were not changed from the initial filing. Having dropped the idea of subaqueous utilities, Simmons proposed "self contained utilities" consisting of: Water - Well with reverse osmosis (RO) plant, as necessary, for potable water. Water for irrigation and toilets will be reused on-site treated wastewater. Drinking water will likely be bottled. Wastewater treatment - Treatment by small on-site package plant, not septic tank. Power - Solar with backup generator. No specifics or analysis of the impacts from these systems were provided, and no assurances were given that they would not pollute. The June modification also proposed mitigation for the loss of the 0.15 acres of wetlands on the island that would be filled. Simmons proposed placement of rip-rap breakwaters just landward of the existing limit of seagrass, or further landward, to provide wave and scouring protection and planting of mangrove and other species landward of the rip-rap. It was suggested that seagrasses also would propagate landward of the rip-rap. In an August 2000 response to DEP's RAI, Simmons detailed the mitigation plan. Under the plan, 350 linear feet of rip-rap breakwaters would be placed along the northwestern and southwestern shores of Little Munyon Island, and the area landward of the breakwaters would be planted with red and black mangrove and smooth cordgrass. Exotic vegetation would be removed from the mitigation areas. Under the plan, 0.31 acres of high quality wetlands would be created to mitigate for the loss of 0.15 acres of jurisdictional wetland fill. DEP Denies Application, as Modified On November 9, 2000, DEP issued a Consolidated Notice of Denial of Environmental Resource Permit and Consent to Use Sovereign Submerged Lands. Discussion focused on impacts on seagrasses, impacts from the proposed utilities, and the mitigation plan. Although DEP noted that the size of the project was reduced from the original application, it concluded that the "dock will still have shading impacts on seagrasses, including Johnson's grass (Halophila johnsonii), a federally-listed threatened species." DEP also noted that the construction of the breakwaters could potentially impact seagrasses. Additional reasons for denial involved the utilities proposed for the uplands. DEP wrote: "The proposed utilities (RO plant, package plant) have a potential for impacts to the Lake Worth Lagoon (Class III Waters) through both a potential discharge and from long-term degradation. Also, no details on the use (short-term or permanent residency) or maintenance of the utilities was provided, both of which could affect how well the utilities function and whether they could affect water quality or habitat." DEP also noted that the proposed mitigation "does not create wetlands. It replaces 0.31 acres of submerged and intertidal habitat with 0.31 acres of mangroves and cordgrass habitat." It was also mentioned that anticipated trimming of mangroves would further reduce the value of mitigation. DEP concluded that Simmons had "not provided reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with Part IV of Chapter 373, F.S., and the rules adopted thereunder." DEP specifically concluded the proposal did not meet the balancing criteria set forth in Section 373.414, Florida Statutes, and Rules 62-330, 40E-4.301 and 40E-4.302. Third Modification and DEP Intent to Issue Simmons and his lawyer and consultant met with DEP staff in November of 2000. A site visit was made on December 8, 2000. After the meeting and site visit, Simmons proposed to further modify the project in several respects. The portion of the dock that was previously reduced to 4 feet in width was proposed to be constructed with a grated deck. The dock was elevated from 5.0 feet above MHW to 5.25 feet above MHW measured at the top of the deck. The design of the rest of the dock remained the same. No changes were proposed to the retaining wall or filling of wetlands. As for utilities, Simmons proposed the "Little Munyon Island Power and Sewerage Plan" This plan represented that 90 percent of the complex's power would be provided by solar energy, producing approximately 72 kilowatts (kW) of electricity. The plan also stated: "Water treatment both for drinking and waste waters will be processed through Atlantis Water treatment Auto Flash systems. This approach will use waste heat to evaporate and clean the water. This process will return used waters to potable with no more than 5 percent effluent. Any effluent will be secured and containerized and periodically (2xs per year) removed from the island." An "auto-flash" system creates distilled potable water using waste heat to evaporate all water from the effluent. The new Little Munyon Island Power and Sewerage Plan did not mention the use of irrigation waters on Little Munyon Island. DEP's staff reviewer understood from the new plan that there would be no wastewater irrigation on Little Munyon Island and that all waste would be processed by distillation, i.e., potable water. As for the mitigation plan, the two previously- proposed rip-rap breakwaters were modified to reduce their footprints, and the southern breakwater was moved somewhat landward at the southern end to avoid seagrasses. A third breakwater was added to the north side of the island. This increased the amount of mitigation area from 0.31 to 0.36 acres. In addition, Simmons submitted a revised mitigation plan to plant mangroves and spartina behind the breakwaters. Simmons also offered to record a conservation easement on the 16 acres of privately-owned submerged lands surrounding Little Munyon Island. DEP issued a Consolidated Notice of Intent to Issue Environmental Resource Permit and Consent to Use Sovereign Submerged Lands on March 12, 2001. In recommending this action, DEP's staff reviewer understood that there would be no discharge whatsoever on the island under the "Little Munyon Island Power and Sewerage Plan," and that all wastewater would be recycled and reused. Specific Condition (18) stated: "Power and wastewater service for the island shall be provided as described in the attached 'Little Munyon Island power and sewerage plan'. No discharge of effluent is authorized on the island." DEP's staff reviewer understood the permit to mean that "water, the material that comes out . . . of the other end of the waste water system" would not be discharged on the island. If DEP's staff reviewer knew Simmons was planning to use another system to treat wastewater or was planning to discharge reuse water on the island, it "would have been a concern," and he "would have questions about what that involved." He agreed that "spray irrigation would have been a concern" and would have raised issues related to the level of treatment, water quality and quantity and runoff from the upland part of the island into the waters of the Lake Worth Lagoon. The main concern would have been nutrients. In granting the revised application, DEP reversed its previous conclusions that Simmons had not complied with applicable statutory and rule criteria, and specifically found that "the Department has determined, pursuant to Section 380.0651(3)(e), F.S., that the facility is located so that it will not adversely impact Outstanding Florida Waters or Class III waters, and will not contribute to boat traffic in a manner that will adversely impact the manatee." The Challengers The proposed project is opposed by Petitioner, Singer Island Civic Association, Inc. (SICA), and by Intervenor, 1000 Friends of Florida, Inc. (Friends). SICA and Friends are both Florida corporations. SICA commenced this proceeding by filing a verified Petition for Administrative Hearing. Friends filed a verified Petition to Intervene. It was stipulated that SICA and Friends have standing as Florida citizens under Section 403.412(5). SICA also asserted standing based on the proposed project's effects on its substantial interests and those of its members. SICA is a membership organization with 1,200 members, who reside on Singer Island. SICA has an office located at 1281 North Ocean Drive, Singer Island, Florida. It also owns submerged real property in the Lake Worth Lagoon just west of and adjacent to Singer Island. SICA's membership includes individuals and condominium associations. Several individual members and condominium association members own property that borders State Road AIA on Singer Island. Some have riparian rights to the Lake Worth Lagoon. SICA performed a survey of its members and received 330 responses. Ninety percent of those responding believed they would be affected by the proposed project. More than 75 percent said they fished in the Lagoon and believed the project would hurt fishing; 80 percent said they enjoy and study the wildlife around the Lagoon; and 72 percent believed wildlife viewing would be impacted by the project. Members of SICA use the Lake Worth Lagoon for boating, fishing, recreation, or enjoyment of wildlife. The membership and the corporation are concerned about the potential of the project to pollute the Lake Worth Lagoon and adversely affect the environmental resources of the Lagoon. SICA's purpose includes the preservation of the environmental resources of the Lake Worth Lagoon and opposition to proposals to fill the submerged lands along State Road AIA. The type of relief sought by SICA in this action is the type of relief that is proper for the corporation to seek on behalf of its members. Both SICA and a substantial number of its members are substantially affected by Simmons' proposed project. A number of issues raised by SICA and Friends were dropped by the time the parties filed their Prehearing Stipulation. SICA and Friends further refined their claims at final hearing. The remaining challenges to the project focus on turbidity and shading of seagrasses caused by the construction and operation of the project, as well as on the potential secondary impacts of utilities proposed to serve the residence on the island. Direct Impacts from Proposed Dock The proposed dock is significantly larger than a typical private, single-family dock. No other of its proportions can be found in Palm Beach County. Typically, private, single-family docks are four-feet wide and made of wood, with spaced wooden planks for decking. The proposed docking facility's size and construction technique are more typical of a commercial docking facility. A docking facility of the size and kind proposed is not required for reasonable access to Little Munyon Island. Rather, it is required for construction and maintenance of a 8,000 to 10,000 square-foot residence, plus swimming pool, that will be worth $12 million to $15 million when completed. A less intense use of the island would have fewer impacts on the environment. Alternatively, there are other ways to build a house on the island without constructing a permanent dock of this size. Simmons might be able to push a barge temporarily up to the island, construct the house and then mitigate for the temporary impacts of beaching the barge. Simmons also might be able to construct a temporary span of trusses, a system used by the Florida Department of Transportation when working on coastal islands. The amount of shading caused by a docking facility is influenced by numerous factors. But if other factors are equal, generally the larger the surface area of the dock, the more shading occurs; likewise, solid poured concrete decking shades twice as much as grated decking material. As a result, all other factors being equal, the proposed dock will produce more shade than a typical private, single-family dock. In addition, there is a halo effect around the footprint of a dock that is about 2.25 times the square footage of the dock. The area under solid concrete decking will receive no sunlight. No seagrasses will ever grow in this area, eliminating possible recruitment of seagrasses in this area. Simmons made a laudable effort to locate, configure, and orient his proposed docking facility so as to reduce the shading impact of the dock's footprint and halo effect. The use of grated material over the area of greatest seagrass cover also was appropriate. But shading impacts and halo effects were not avoided entirely. In its April 2000 biological survey, CZR depicted an area approximately 40 feet wide by 250 feet long between the west of Little Munyon Island and a sunken barge as a "barren," meaning it had no seagrasses. Clearly, sand has built up over the years in this area due to influence of the sunken barge, and parts of the sandbar may be exposed at every mean low tide. This area may be devoid of seagrasses. But other parts of the sandbar may only be exposed at every low, low (spring) tide and may not actually be "barren." An onsite inspection and video tape of the area was made by Carman Vare of the Palm Beach County Division of Environmental and Resources Management in August of 2001. This inspection and video confirmed that there were no seagrasses in the sandy area from the mean high tide line on Little Munyon Island running west along the proposed footprint of the dock for a distance of approximately 130 feet. But at a point approximately 130 feet from shore, within 5 feet north of the tape placed at the presumed centerline of the proposed dock and sandy area, Vare began to find rhizomes (roots) of Cuban Shoal Grass (Halodule wrightii) in the sediment. Rhizomes of this seagrass continued to be found out to approximately 182 feet from the shore. At that point, sparse patches of Johnson Seagrass began approximately 5-10 feet north of the tape. This type of grass continued to be found to a point roughly 205 feet from the shore. From 205 feet to 215 feet from the shore, Cuban Shoal Grass rhizomes reappeared. There were no seagrasses from 215 feet to the east edge of the barge, which is approximately 243 from the shore. The area around the barge has been scoured out by waves and currents. It is possible that Vare placed his tape somewhat north of the actual centerline of the proposed dock. It is not clear from the evidence, but a sunken piling Vare swam over at one point may have been north of the centerline of the proposed dock. Also, while no seagrasses were observed when Vare swam south of the tape, Vare did not swim further than 5 to 10 feet south of the tape, so he did not know how far south of his transect line the area was barren of seagrasses. In any event, it was clear that the entire area depicted by CZR as "barren" was not in fact completely devoid of seagrasses; there were seagrasses and seagrass rhizomes either within the footprint of the proposed dock in the 110 feet or so east of the sunken barge, or very close to the north of the footprint in that locale. The sunken barge is made of decomposing wood. It is about 30 feet wide and about 100 feet long. It is often exposed at low tides, but is submerged during high tides. While there are no seagrasses growing in the barge, the barge is providing some fish habitat. If the barge were removed, seagrasses probably would re-colonize the area. West of the barge for approximately 50 feet is a colony of lush Cuban Shoal Grass. Coverage is sparse very near the barge but quickly thickens to the west to approximately 75 percent coverage. (CZR mischaracterized the density of this grass as 30 percent, perhaps in part because CZR did not conduct its surveys during the optimal growing season). From 50 to 70 feet west of the barge, CZR found moderate (30 percent) cover of Paddle Grass (Halophila decipiens). There are no grasses from 70 to 103 feet west of the barge. However, CZR found moderate (30 percent) cover of Paddle Grass south of the proposed footprint of the access dock and east of the terminal platform, extending south past the end of the terminal platform. The proposed terminal platform is in approximately 8-9 feet of water. The sediments under the terminal platform are composed of sand, silt, clays and organic materials. There are no grasses under the proposed terminal platform. The terminal platform would be directly over lush beds of Halophila decipiens (paddle grass) and Halodule wrightii (shoal grass) if the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use of sovereign submerged lands. Secondary Impacts from Proposed Dock As indicated, Simmons plans to use the proposed docking facility for construction and maintenance of a 8,000 to 10,000 square foot residence. He plans to use 55-foot long construction barges, drawing 3-4 feet of water, to bring fill, rocks, and other construction materials to Little Munyon Island. The barges will be moored to the western side of the proposed terminal platform. The use of construction barges will cause turbidity during construction. Simmons proposes to offload tons of fill from the barge and carry this fill over the dock to Little Munyon Island. One estimate was that, if Simmons used barges 120-130 feet long and capable of hauling 300 tons of fill, he would need to deliver 27-30 barge loads of fill to the dock. There is a reasonable likelihood that some of this fill will fall into the water. Simmons provided no analysis of the impacts of offloading and delivering this much fill to the island. There was no evidence of how Simmons planned to move sand around to fill the island, or its potential to cause turbidity. The location of the proposed dock in this case complicates the navigation of barges and vessels to and from the dock. Little Munyon Island is roughly centered in the Lake Worth Lagoon; and, except for some protection from the island itself, the dock is fully exposed to wind from all directions. Meanwhile, the "sail effect" of large boats adds to the difficulty of navigating them in the wind. The proposed dock also is exposed to the full effect of the current. A tidal range of a couple of feet can cause a current of about 1-2 knots; mean tidal range in the location of the proposed dock is as much as 2.8 to 2.9 feet. Finally, the proposed dock is near the ICW, which has a lot of boat traffic and wake. All of these factors can affect maneuverability of boats, create closure problems, or push the boats away from the dock. Unless Simmons wants to run the serious risk of losing control of the construction barges and inadvertently damaging seagrass beds, he will have to use a tug with significant maneuvering power. Tugs create more hydraulic thrust than other vessels because they generate more torque. Tugs also have more prop wash than most boats because they have deeper draft and larger propellers, in the range of 3 1/2 feet in diameter. The proposed dock was designed to moor a vessel up to 120-foot long parallel to the western side of the terminal platform when not being used for construction barges. If not being used for either barges or one large vessel, the mooring could accommodate two vessels of between 50-60 feet in length. Although not contemplated or ideal, it would be physically possible to moor three large vessels west of and perpendicular to the terminal platform inside the four mooring piles located 40 feet off the terminal platform. (These piles are 33 feet apart and designed to secure the construction barges, or one large vessel, parallel to the western side of the terminal platform.) While there are railings on the access pier to discourage mooring, there are no railings on the terminal platform. It also would be possible to moor boats on the east side of the terminal platform, which would be over lush seagrass beds. Simmons plans to moor his boat there when the western side is occupied by construction barges. Boats of 50-60 feet usually have twin inboard engines that range from 400 to 600 horsepower each. They can have propellers of between 26-30 inches in diameter. The engines and propellers are installed in a declining angle on such boats with the thrust vector pointing downward toward the bottom. Boats in this size range generally of draw 4-6 feet of water depending on the size and type of the vessel. A 70- foot trawler draws 6 feet of water. Unlike outboard engines (which also typically are lower-powered), inboard engines do not turn. Larger vessels move around by employing differential power. With twin inboard engines, navigation can by accomplished by using power pulsing, using the engines at different speeds, or by making one engine push forward and the other push in reverse. Winds and currents increase the need to use pulse powering to maneuver into and away from docks. For these reasons, the operation of 50-60 foot boats even in 5-10 feet of water can disturb the bottom through hydraulic scouring. As indicated, tug boats maneuvering a barge can scour the bottom even more. DEP's staff concluded that the operation of the dock would have no effect on seagrasses and sediments and would not cause turbidity or scouring problems in part by applying a longstanding policy which assumes that turbidity will not be a concern if one foot of water is maintained between boats using a dock and the bottom. The permit contains a condition that Simmons maintain one foot below boats. The so-called one-foot rule was designed for small, outboard-powered boats. As larger and more powerful vessels have increasingly used Florida's relatively shallow waters, the rule has become antiquated and ineffective for protection of marine resources from scouring and turbidity. Certainly, it will not be effective to minimize the impacts of scouring and turbidity from vessels of the size authorized and expected to use this dock. The so-called one-foot rule also does not differentiate between types of sediments. There is a "hole" approximately under and just west of the northernmost 60 feet of the proposed terminal platform; the hole also extends to the north beyond the proposed terminal platform. The water in the "hole" is approximately 8 feet deeper than the surrounding areas. The "hole" has been there for years. It could have been caused by dredging back in the 1940s. It also is just west of where a previous dock was located and could have been caused by prop-dredging (or perhaps by a paddlewheel, which used the mid-1960s). The "hole" is a silt trap. There is approximately 5 feet of silt in the bottom of the "hole." The sediment in the hole consists of very fine particles of muck and silt, with some decomposing drift algae. The silts in the "hole" probably come from the Earman River, which drains urbanized areas of North Palm Beach and discharges into the Lake Worth Lagoon just across the Lagoon from the site. There are no seagrasses in the "hole." Neither CZR nor DEP knew the "hole" was there. CZR did not identify it on its biological survey. Simmons provided no analysis of the sediments in the hole or in the mooring area of the proposed dock. DEP provided no analysis or testimony of the effect of the sediments in the "hole" on turbidity and water quality. Silts and muck cause turbidity, which is a measure of water clarity. Re-suspended mucks and silts can impact seagrasses by reducing light penetration through the water and by settling on their leaves. Silts stirred up from the operation of tugboats and large boats at the end of the proposed dock could settle on the grasses under the 4-foot grated area and negatively impact the very seagrasses that DEP was trying to protect. Once re-suspended, sediments can persist in the water column for 20-40 minutes, depending on the currents. A knot or two of current can suspend silts for half an hour and transport them a mile away. On an incoming tide, such a current could transport re-suspended sediments toward and into MacArthur State Park, just 1,100 feet away. To determine the extent of degradation of the turbidity standard in the OFW of the State Park, DEP would have to know the background turbidity in the Park. Neither Simmons nor DEP did a hydrographic survey or any other analysis of the project for its effect on the OFW. Farther west of the proposed terminal platform, the bottom rises out of the "hole" to a depth of 8-9 feet. Starting there, and extending west all the way to the edge of the ICW, there is sparse but continuous Paddle Grass (Halophila decipiens). Allison Holzhausen, an environmental analyst with Palm Beach County, has run transects throughout the area of Lake Worth Lagoon between the proposed terminal platform and the ICW and has not found any place in that area where seagrasses did not grow. Water depths in this area do not exceed approximately 14 feet. Depending on water clarity, Paddle Grass can grow in deep waters and have been found in water up to 25 meters deep in the Atlantic Ocean off Palm Beach County. CZR provided no biological survey of the seagrass communities west of the mooring area, nor did it analyze the resources or do a bathymetric survey of the area between the proposed dock and Simmons's dock on the mainland west of the ICW. This information would be needed to determine whether the operation of Simmons's boat to and from the dock on a continuing basis would impact seagrasses and to locate the best place for a channel. If the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use, the terminal platform and mooring areas would be directly over lush seagrass beds. In addition, the water there would be just 6.4 feet, or less, at MLW (mean low water); there was no evidence of detailed bathymetric information in the area. Depths would be even lower at low, low (spring) tides. Several witnesses testified that the 7.4 foot depth in the area indicated on Sheet 3 of 5 of the Plan View in Simmon's application was at MLW. But Sheet 3 of 5 indicates that "datum is NGVD," meaning the National Geodetic Vertical Datum of 1929, and Sheet 4 of 5 of the Plan View indicates that MLW is approximately a foot less than NGVD. Impacts on seagrasses from scouring and turbidity would be even greater if the proposed dock is shortened by 35 feet. Secondary Impacts of Wetland Fill When DEP gave notice of intent to issue the Permit, it was operating under the assumption and promise that there would be "no discharge" of wastewater on Little Munyon Island. Under the proposed "Auto-Flash" wastewater system, the only effluent would be solid "sludge," which would be removed from the island twice a year. This assumption continued into final hearing. On August 7, 2001--after the permit was issued, and just a couple of weeks before final hearing--Simmons proposed a different type of wastewater treatment system that would spray-irrigate treated wastewater. The new proposed system would provide aerobic and anaerobic treatment, filter the effluent, chlorinate it, and then spray it at a rate of up to 1,040 gallons per day onto the surface of the Little Munyon Island within approximately 50 feet of the water's edge. In effect, Simmons went back to his original proposal for a "waste water treatment/treatment by small on- site package plant not septic tank . . . water for irrigation and toilets will be re-used onsite treated wastewater." This system was rejected by DEP in its denial of November 4, 2000, because it lacked information on the facility and whether there would be a discharge. DEP's engineers did not review the system again after August 7, 2001. The disposal of treated effluent from the onsite sewage treatment plant raises legitimate concerns over the potential of the proposed utilities to impact surface waters. Simmons's engineer, John Potts, conceded that there will be nutrients in the wastewater. Nutrients from wastewater can cause algae to grow, which affects the health of seagrasses. Potts was unable to provide detail as to the amount of nutrients and other constituents of the wastewater. DEP's experts were not familiar with the criteria for reuse of treated effluent. DEP did not know the transmissivity of the fill and could not say whether treated effluent sprayed on the island would percolate through the fill and run into the Lagoon across the top of the rock strata on the island. Potts did not know how stormwater would be handled on the island; a proposed stormwater system has yet to be designed. For that reason, Potts could not say whether the sprayed treated effluent could reach the Lake Worth Lagoon. DEP also did not know how stormwater was proposed to be treated on site. The solar power system proposed in the Little Munyon Island Power and Sewage Plan would only produce only 31 kW of power and provide 19 percent of the complex's power and at peak times, not the 90 percent estimated by Simmons's consultants. In effect, the propane generator was not a "backup," as suggested, but the main power source for the house and utilities and only source of power for the wastewater treatment system, since the generator must be running to provide waste heat for the wastewater system to work. Instead of two available sources of electrical power for the wastewater treatment system in case one failed, there is really only one, the propane generator. The lack of any backup for the sewage treatment system increases its potential to fail and adversely affect surface water quality and the marine environment of the Lake Worth Lagoon. DEP did not analyze stormwater or the discharge of treated wastewater and its effect on surrounding waters, stating: "Typically we don't review storm water for single family residences." But Simmons's proposed project is not a typical single family residence. In rebuttal, Simmons put on evidence that there would be approximately 14,800 square feet between the retaining wall and the 50-foot setback line and that the depth of 1,000 gallons of sprayed treated wastewater would be only one-tenth of an inch if sprayed equally over that entire area. Evapotranspiration alone would account for the entire 1,000 gallons, according to the Basis of Review of the South Florida Water Management District. But the evidence was not clear as to how much of the 14,800 square feet between the retaining wall and the 50-foot setback would be available for spray irrigation. The weight of the evidence was that Simmons failed to provide reasonable assurances that the disposal of wastewater on the island will not have adverse impacts on the marine resources of the Lake Worth Lagoon unless a specific conditions were added to the permit: that a properly designed and constructed stormwater system be established prior to operation of the sewage treatment facility; and that backup systems and emergency procedures be established in the event of any failure of the main system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Robert Simmons, Jr., for an ERP and Consent of Use for his proposed docking facility. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative this 16th day of November, 2001. COPIES FURNISHED: Ernest A. Cox, Esquire Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive Suite 500E West Palm Beach, Florida 33401-6161 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Rod Tennyson, Esquire 1801 Australian Avenue, Suite 101 West Palm Beach, Florida 33409 Terrell K. Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Tallahassee, Florida 32301 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing; the following facts relevant to the issue presented for determination are found: The prime complaint heard from petitioner's customers who testified at the hearing was the objectionable odor of the water received in their homes. The water was described as smelling like chlorine or like sewer, swamp or sulphur water. Such an objectionable odor affects the water's taste, and several customers testified that they were compelled to use filters to make the water bearable to drink. Another witness testified that the water tasted like quinine. Other complaints regarding the quality of water provided by petitioner to its customers included the presence of debris, such as sand, silt or dirt, in the water, the staining of white sinks by the water and inadequate water pressure. Complaints with regard to the service provided by petitioner to its customers were also voiced. These complaints included interruptions in water service without prior notice, the presence of air in the water lines and the necessity of making long-distance telephone calls to Orlando when inquiring about their bills. One customer testified that even though he had paid for a temporary disconnection of his water when he was away from his residence, he was still billed a minimum charge for service. Several customers testified that petitioner's office personnel failed to timely or adequately respond to their complaints or inquiries regarding their bills. Charles Sweat, the vice president of operations for petitioner's fifty- one systems in eight counties, visits each of the systems at least once a month. At the time that petitioner took over the operation of the Intercession City water system in 1977, the system was under citation by the Department of Environmental Regulation for inadequate chlorination of the water. The Department of Environmental Regulation does have a minimum requirement as to the amount of chlorine which must be added to the water. Petitioner corrected this deficiency and the citation was removed. Neither of the two water systems involved in this proceeding - Intercession City and Tropical Park - are presently under citation by any state or local regulatory agency. Analyses of monthly laboratory samples of water from the Intercession City and the Tropical Park systems indicate that the water quality will meet the Department of Environmental Regulation's secondary drinking water standards which went into effect on January 13, 1981. Petitioner now provides a toll-free telephone number which Osceola County customers may use to call Orlando. Notice of this toll-free number was included in the water bills sent to customers in September or October of 1980. A log is maintained by petitioner of all interruptions of water service. On one occasion occurring on March 3, 1980, there was a water outage. The outage was caused by low temperatures freezing the pressure switch at a time when it was at a high pressure level. When there was no pressure, the switch, being frozen, was incapable of sending an on-signal to the pump. It was necessary for petitioner to use torches to thaw out the pipes to make the system work properly. Cold weather sufficient to cause such an effect rarely occurs in Florida. On January 16, 1981, there was an interruption in service caused by the county cutting a water line. Another interruption of service occurred on January 18, 1981. This was caused by the malfunction of an air release valve which releases excess air from the pressure tank. Air was eventually caused to go into the distribution system and consequently into the homes of the customers. Petitioner's personnel have been instructed to watch this type of situation more carefully and more often. Petitioner's vice president of operations was not aware of recent complaints from customers concerning air problems, but testified that he would immediately and personally follow up on the problem.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the quality of water service provided by petitioner to its customers in Osceola County be found to be satisfactory and that no adverse consequences be imposed upon the petitioner in its application for a rate increase as a result of the quality of its service. Respectfully submitted and entered this 22nd day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 22nd day of April, 1981. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 Lafayette Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4 - Holland Building Tallahassee, Florida 32301 M. Robert Christ Legal Department Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact Based on the stipulations of the parties, on matters officially recognized, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner, The Santa Fe Lake Dwellers Association, Inc. (SFLDA), is a Florida corporation, not-for-profit, which evolved from a voluntary association of area families contemporaneously with and in reaction to Intervenor's first activities on site. Its members are mostly riparian residents and owners although, it does have a number of members who reside in surrounding areas. SFLDA was formed to protect Lake Santa Fe. The purpose of the association is to protect natural resources and to inform those conducting activities around the lake to abide by rules, regulations, and procedures. The President of SFLDA, Harold Hill, expressed particular concern about protection of lifetime investments in property on the lake and property values. SFLDA has approximately 380 "family group" members, of whom approximately one-half live on Lake Santa Fe or on canals to the lake. Mr. Hill and other members of SFLDA use Lake Santa Fe waters for swimming, fishing, and recreation. Use of the waters of Lake Santa Fe and Little Lake Santa Fe is not restricted to property owners who abut the lake. There is public access to the lakes and they can be used by anyone who has a boat. Intervenor, Santa Fe Pass, Inc. (SFP), is a Florida corporation, which owns the property at issue. SFP acquired fee title to the land in its own name on April 28, 1978. Some or all of the present share holders in SFP purchased the land in the name of a trustee on January 9, 1976. The property at issue is a development property of approximately 110 acres located in Alachua County on a peninsula that almost separates Lake Santa Fe from Little Lake Santa Fe and is commonly known as the Santa Fe Pass. The Santa Fe Lakes are navigable and are classified as Outstanding Florida Waters under Chapter 17-4.304(4)(i), Florida Administrative Code, and are surrounded by Alachua, Clay, Bradford, and Putnam Counties. On November 13, 1978, a site visit was conducted on the subject property for purposes of establishing the dredge and fill jurisdictional limits of DER and the U.S. Army Corps of Engineers. Those present on the site inspection that day included Melvin H. Rector, the DER representative; another DER employee; Don Gowan, representative for the Corps of Engineers; William B. Watson, III, a co-owner; Boone Kuersteiner, an attorney for SFP; and Benjiman Breedlove, environmental consultant for SFP. At the November 13, 1978, site visit, DER made a determination of the extent of its dredge and fill jurisdiction under Section 403.817, Florida Statutes, in the area of the subject property. This determination was depicted and memorialized on an aerial photograph of the site and was signed by those present, including Mr. Rector on behalf of DER. Mr. Rector, the DER representative on site on November 13, 1978, used the following method to establish the location of the limit of DER's jurisdiction: Jurisdiction was based on the dominance of certain vegetative species listed in Rule 17-4, Florida Administrative Code, as it existed on that date. The listed species that were dominant in the jurisdictional area were a fringe of grass called maiden cane along the lake, and further landward, two forested species, pond cypress and swamp tupelo. Dominance was based on factors of whether listed species versus non-listed species covered a greater aerial extent in the canopy cover, made up more than 50 percent of the species by number, and had a greater biomass or weight. At that time DER had no authority to use soil types to establish jurisdiction. The line set by DER was based only on the vegetative index and not on the ordinary high water line. The filling which had occurred on the site prior to November 13, 1978, had no impact on where DER located its jurisdictional line, nor did it impair the ability of DER to determine where the line should be located. Any removal of canopy or subcanopy species landward of the line prior to that date also did not affect placement of the line. If no filling had occurred on Santa Fe Pass prior to November 13, 1978, DER's representative Rector would have located the jurisdictional line in the same place as he did on November 13, 1978. An abandoned powerline easement runs across the subject SFP property from the southwest area of the property to the northeast portion of the property, where it meets the lake. Prior to any filling by SFP or its immediate predecessor in interest, the easement area had been cleared of trees, and fill had been placed in some areas along the easement strip. At the time of the November 13, 1978, jurisdictional determination, the easement strip was dry and it was possible to drive a car down it to the lake. The easement strip was not paved, but had dirt and vegetation on its surface. Portions of the powerline easement strip were filled prior to January of 1975. There was no new fill on the powerline easement strip at the time of the November 13, 1978, jurisdictional determination. At that time, portions of the powerline easement strip contained old fill material covered by upland species of vegetation. On November 13, 1978, DER concluded that, based on vegetation in and adjacent to the powerline corridor on Santa Fe Pass, the corridor was entirely outside DER's jurisdiction. A low area or depression, also referred to as a pond, is located in the northeasterly portion of the subject SFP property, southwest of the portion of the powerline easement strip that extends into the lake. No fill was placed between the depressed area or pond and the lake prior to November 13, 1978. (Shortly after that date, fill was placed in that area.) There was no other physical alternation of the area near the depression or pond prior to the date of the jurisdictional determination. At the time of the jurisdictional determination, the depression or pond was separated from the lake by a natural low berm, the borders of which were vegetated and undisturbed. The depression or pond was not exchanging water with the lake at that time, although at other times there has been an occasional exchange of waters between the two. In addition, jurisdictional vegetative species were not dominant in the depression or pond area at the time of the jurisdictional determination. On November 13, 1978, DER did not assert jurisdiction over the low area or pond in the northeast section of the property because it was not connected to waters of the state and was separated from the lake by a low natural berm. DER's representative Rector inspected the jurisdictional line numerous times after November 13, 1978, including an inspection of the line as marked by the owner's consultant to make sure the line was accurate. Other DER representatives inspected the line in May of 1979 and also thought the line or the portions of the November 13, 1978, line they inspected were accurate. On June 11, 1979, DER representative David Scott wrote SFP that, after a recent DER inspection, there were no problems with the present DER jurisdictional line. Since the DER line was established on November 13, 1978, SFP has relied on its location to develop the project, to conduct filling activities landward of the location of the line, to create a site plan and plat, and to make sales representations to potential buyers. From the owner's standpoint, the purpose of establishing the line was to determine where it would and would not need DER dredge and fill permits to develop the land. Landowners use DER jurisdictional determinations for planning purposes. SFP has expended more than $100,000 for development reasons in good faith reliance on the line's location. In conjunction with 1984 revisions to Chapter 403, Florida Statutes, DER adopted Rule 17-4.022(8), Florida Administrative Code. This was a "grandfathering" rule provided for landowners who had had DER jurisdictional determinations done, so that they could continue planning with a previously fixed jurisdictional line. On January 8, 1985, SFP requested that DER validate the 1978 jurisdictional determination for the subject SFP property in accordance with Florida Administrative Code Rule 17-4.022(8). Attached to this request was the aerial photograph signed by DER employee Rector and others upon which the November 13, 1978, DER jurisdictional determination was graphically displayed. On July 9, 1985, DER issued a letter validating the November 13, 1978, jurisdictional determination under Rule 17- 4.022(8), Florida Administrative Code. Exhibit 1 to that letter was a validated version of the aerial photograph depicting the 1978 determination. The validated line is identical to the line established on November 13, 1978. DER staff followed normal procedures in validating the Santa Fe Pass line and, having done so, concluded that all validation criteria were met. On March 11, 1986, DER notified SFLDA by certified mail that on July 9, 1985, DER had validated its November 13, 1978, jurisdictional determination on the SFP property. SFLDA timely requested an administrative hearing on March 19, 1986. Although some SFLDA officers and members had conversations with DER personnel between July 9, 1985, and March 11, 1986, none of those conversations was sufficient to provide SFLDA with a clear point of entry into the process. In sum: The totality of the credible evidence supports the ultimate finding of fact that the DER jurisdictional line established on November 13, 1978, was accurately established and SFP is entitled to have that line validated.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue a Final Order validating the jurisdictional line as determined on November 13, 1978. DONE AND ENTERED this 27th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1047 The following are the-specific rulings on each of the proposed findings of fact proposed by each of the parties. By way of preface it should be noted that the evidence in this case consists of three days of testimony by numerous witnesses, some expert and some lay, with many different points of view. Some of the witnesses had an opportunity to view the subject property carefully on numerous occasions over a period of several years. Others only viewed it casually once or twice. Some gave the property a studied, scientific examination. Others gave it only a casual, curious glance. Some of the witnesses have an interest in what happens to the property. Others do not. Some witnesses were able to relate what they had observed with precision and detail. Others were somewhat vague, uncertain, and ambiguous. These many differences have resulted in a record which contains a great deal of conflicting factual testimony as well as a great deal of conflicting expert opinion testimony. The record also contains a great deal of what might best be described as "vague" testimony to which little weight has been given. In making the findings of fact in this Recommended Order and in making the specific rulings on the proposed findings which follow, I have given careful consideration to the testimony of all of the witnesses who presented testimony relevant to the issues in this case and have resolved the conflicts in the testimony by careful consideration of matters such as those summarized in the preceding paragraph, giving special consideration to each witness' opportunity to observe the property, the timing of his or her observation, the ability of the witness to perceive and understand what was being observed, and the ability of the witness to remember and recount what had been observed. In resolving the conflicts in the testimony I have also taken into consideration such matters as the extent to which the testimony was or was not consistent with other evidence, the extent to which it was or was not consistent with logic and common sense, and the extent to which the witness' interest (or lack of interest) might have colored his or her ability to objectively observe and recount the observation. Rulings on Petitioner's Proposed Findings Paragraphs 1,2, and 3: Accepted in substance, with the exception of the last sentence of Paragraph 3, which sentence is rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 4: Accepted. Paragraph 5: Rejected as irrelevant or as constituting unnecessary, subordinate detail. Paragraph 6: Accepted in substance, but with most of the details deleted as unnecessary and subordinate. Paragraph 7: Accepted in substance, for the most part, but with many unnecessary and subordinate details deleted. The sentence beginning on the ninth line of page 5 and the last sentence of this paragraph are rejected as irrelevant. Paragraph 8: This paragraph is rejected as subordinate and unnecessary. (While the witness Rector's current status as a private consultant to one of the parties is an underlying consideration in evaluating the credit to be given to his testimony [and has been considered in that regard), such status is nevertheless subordinate to the real issues in this case. The witness' education, experience, and demeanor while on the witness stand were also carefully considered, but if all of these matters were to become the subjects of findings of fact, the fact-finding process might never end and the significant facts might become forever lost in a morass of trivia.) Paragraph 9: Accepted in substance, but with many details deleted as unnecessary and subordinate. Paragraph 10: The first two sentences are rejected as irrelevant. The remainder of this paragraph is rejected as constituting unnecessary and subordinate details as well as being more in the nature of a summary of fragments of the testimony than a proposed finding of fact. Relevant findings about the "pond" are included in this Recommended Order. Paragraph 11: This paragraph is rejected as constituting a commentary upon a portion of the evidence or as constituting argument about the probative value of an item of evidence, rather than being a proposed finding of fact. To the extent this paragraph does contain material which could be regarded as proposed findings, they are subordinate and unnecessary details. Paragraph 12: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following Paragraph 12: Rejected as irrelevant and as constituting subordinate unnecessary details. Paragraph 13: Accepted in substance, but with many details deleted as unnecessary and subordinate. Unnumbered paragraph following paragraph 13: First sentence accepted in substance. The remainder of this paragraph is rejected as irrelevant or subordinate and unnecessary details. Paragraph 14: Rejected as constituting irrelevant, subordinate, unnecessary details about the hearing. Unnumbered paragraph immediately following Paragraph 14: The first two sentences of this paragraph and the last sentence of this paragraph are rejected as constituting irrelevant, subordinate, unnecessary details. Most of the remainder of the paragraph is accepted in substance with most details deleted as unnecessary and subordinate. Paragraph 15: Rejected as argument or editorial commentary rather than proposed findings of fact. First unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant and unnecessary details. Second unnumbered paragraph following Paragraph 15: The first sentence is rejected as constituting subordinate, unnecessary detail. The opinion incorporated into the second sentence is rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant in light of other credible evidence that the area had not been significantly disturbed at the time of the jurisdictional determination. The last sentence is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Third unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination. Fourth unnumbered paragraph following Paragraph 15: This paragraph is rejected in part as constituting irrelevant and subordinate details and in part as contrary to the greater weight of the evidence. Paragraph 16: The first two sentences of this paragraph are rejected as subordinate, unnecessary details. The remainder of the paragraph is accepted in substance, but with the deletion of many unnecessary details. Paragraph 17: The first seven sentences of this paragraph are rejected as subordinate and unnecessary. The eighth sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Furthermore, the witness' testimony relative to this opinion comes closer to being in the nature of "maybe" than being in the nature of, "probably." The ninth, tenth, and eleventh sentences are rejected because they constitute irrelevant subordinate details and because the testimony in this regard was not convincing to the extent it conflicts with the testimony of other witnesses. The last three sentences of this paragraph are rejected as being totally irrelevant to any issue in this case. Unnumbered paragraph following Paragraph 17: This paragraph is rejected in part because it consists largely of irrelevant or subordinate and unnecessary details, in part because the testimony upon which it is based was not persuasive, and finally, because much of it is contrary to the greater weight of the evidence. Paragraph 18: The paragraph is rejected as irrelevant and also as in part contrary to the greater weight of the evidence. Paragraph 19: This paragraph is rejected as irrelevant. Paragraph 20: The first sentence is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The second and third sentences are rejected as irrelevant or subordinate detail. The last sentence of this paragraph is rejected as irrelevant due to the time of the observations and in part not supported by competent substantial evidence. Paragraph 21: This paragraph is rejected as irrelevant. Paragraph 22: All but the penultimate sentence of this paragraph is rejected as irrelevant and subordinate details. The essence of the penultimate sentence has been included in the findings regarding the "pond." Paragraph 23: This paragraph is rejected. For the most part it consists of irrelevant or subordinate details. To the extent it is consistent with other testimony, it is cumulative. To the extent it is inconsistent with other testimony, it is contrary to the greater weight of the evidence and to a large extent not supported by competent substantial evidence. (It is worthy of note that much of the testimony to which this paragraph relates was substantially discredited on cross-examination.) Paragraph 24: This paragraph is rejected, primarily because it consists of irrelevant or subordinate details, but also because some of those details are not supported by persuasive competent substantial evidence. Paragraph 25: This paragraph (including all of its subparts) is rejected as constituting irrelevant and subordinate and unnecessary details. Paragraph 26: This paragraph is rejected as irrelevant. Paragraph 27: This paragraph is rejected. Many portions of the paragraph consist of irrelevant or subordinate details. The portions containing opinions are rejected as being contrary to the greater weight of the evidence and as not being wholly supported by competent substantial evidence. Rulings on Respondent's Proposed Findings With the exceptions specifically noted below, the substance of all of the findings of fact proposed by the Respondent have been accepted and incorporated into the findings of fact in this Recommended Order. Paragraphs 3, 4, and 7: These paragraphs are rejected as constituting subordinate and unnecessary details. Paragraph 6: The portion reading, ". . . except for a more landward relocation around the area identified as 'Gator Cove,' to include more area," is rejected as contrary to the greater weight of the evidence. Paragraph 8: The portion reading, ". . . except in the area described as Gator Cove," is rejected as contrary to the greater weight of the evidence. Rulings on Intervenor's Proposed Findings Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with some unnecessary details deleted. Paragraph 3: Accepted in substance with the exception second sentence of this paragraph. The second sentence is rejected as being too narrow and incomplete a statement. The findings in this Recommended Order contain more complete findings regarding the "pond." Paragraph 4: This paragraph is rejected as constituting subordinate and unnecessary details. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Accepted with the exception of the last sentence of this paragraph, which is rejected as irrelevant or as constituting unnecessary subordinate detail. Paragraph 8: Accepted. Paragraph 9: Accepted. Paragraph 10: Accepted. Paragraph 11: Accepted. Paragraph 12: Accepted. Paragraph 13: Accepted. Paragraph 14: Accepted. Paragraph 15: Rejected as irrelevant or as constituting subordinate and unnecessary details. Paragraph 16: Accepted. Paragraph 17: Accepted in substance with some unnecessary details deleted. Paragraph 18: Rejected as constituting primarily subordinate and unnecessary details. this regard it should be noted that Mr. Tyler's opinion that a portion of the jurisdictional line is misplaced has been rejected as contrary to the greater weight of the evidence.) Paragraph 19: First sentence is accepted. The remainder, although essentially accurate, is rejected as cumulative. COPIES FURNISHED: Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Frank E. Matthews, Esquire Elizabeth C. Bowman, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issues for determination in this case are: 1) whether the Department of Environmental Protection (DEP) has dredge and fill permitting jurisdiction over a certain body of water known as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge and fill permitting jurisdiction is established, whether Petitioner qualifies for an exemption from DEP's dredge and fill permitting jurisdiction; and 3) if not otherwise exempt from DEP's dredge and fill permitting jurisdiction, whether Petitioner's application No. 46-0199306-001-EE, seeking to place a modular home on a fill pad in Lake Blake, should be approved by DEP.
Findings Of Fact Parties DEP is the agency of the State of Florida vested with the power and duty to enforce the provisions of Chapters 373 and 403, and the rules promulgated in Chapter 62, Florida Administrative Code. DEP is the only agency involved in these proceedings. Lee Maddan (Maddan) is a long-time resident of Okaloosa County, and the Petitioner in Case No. 03-1499. Maddan is a Respondent in Case No. 03-2040. Maddan has personally observed activities occurring at the Lake Blake property for more than 38 years, including the excavation of the lake. Santa Rosa Three, Inc. (the Corporation), is a Respondent in Case No. 03-2040, and holds fee simple title to the property containing Lake Blake, which is located in unincorporated Okaloosa County between Lewis Street and Clifford Street in Sections 2 and 3, Township 2 South, Range West. Santa Rosa II is also Respondent in Case No. 03-2040, and is a corporate predecessor in interest to the Corporation. Maddan holds equitable title to the Lake Blake property and is in the process of purchasing the fee simple title to the property from the Corporation. Maddan is and was at all material times hereto authorized by the Corporation to enter upon the Lake Blake property, to proceed to develop the land, to obtain permits in his name and to do other acts to prepare the property for Maddan's purchase. History of Lake Blake Lake Blake is an artificially created water body in unincorporated Okaloosa County, having a water surface area slightly less than six acres. There is a small island in the center of the lake. The property surrounding Lake Blake presently consists of both uplands and wetlands. No other water body is visible from Lake Blake. For DEP jurisdictional determination purposes, Lake Blake is located in the Northwest District of Florida. The oldest records of the Lake Blake property dating to 1826, indicate that the property was flat land with natural vegetation dominated by palmetto and galberry. The property historically had no flowing streams. In the 1950's the then owner of the property began excavating a borrow pit on the property. The excavations continued until approximately 1979. As the borrow pit excavations continued a lake formed due to the intrusion of underground water as well as collected rainfall. During the excavation period, and until approximately 1976, the land around the borrow pit was primarily pasture land with no trees or other vegetation. Up to 1976, there was no wetland vegetation growing on the property. Prior to 1960, the natural stormwater flow from the property was to the southwest toward Cinco Bayou, a defined water body of the State of Florida which on a direct line is located approximately one-quarter mile from the property. Cinco Bayou is the body of water of the State nearest to Lake Blake. During the 1960's, a road known as Lewis Street (also known as Mayflower Avenue) was constructed along the southern boundary of the property. At the time of the construction of Lewis Street, the borrow pit was separated into two parts, an eastern and western section. A concrete culvert divided the sections of the borrow pit. At the time of the Lewis Street construction, a stormwater discharge pipe was installed by Okaloosa County and excess water flowed out of the borrow pit only at certain times in direct response to rainfall. The installation of the stormwater discharge pipe on Lewis Street was intended to drain excess rainfall from the borrow pit. Okaloosa County never acquired ownership of the borrow pit for use as a stormwater retention pond. The water body that formed in the borrow pit would come to be called Lewis Street Pond, or Blake Lake, and eventually Lake Blake. The natural flow of the stormwater from the property was further altered in the 1970's when a public elementary school was constructed by Okaloosa County on Lewis Street. The public school is located between the property and Cinco Bayou. Borrow pit operations formally ceased in September of 1980 when DEP's predecessor agency, the Department of Environmental Regulation (DER), entered an order requiring the cessation of mining operations. The physical operations had actually ceased a few years before the DER order. Lake Blake originally resulted from collected rainfall, as well as underground water intrusion in the borrow pit. Over the subsequent years and at the present time, additional diverted stormwater runoff collected in the lake as a result of Okaloosa County's stormwater drainage system. Lake Blake today is an artificial body of water owned entirely by one person. Residential housing is located on property surrounding Lake Blake. The lake is occasionally utilized for recreational purposes, including fishing. The property surrounding the lake is not open to the general public, and the entrances to the property are fenced. For purposes of this proceeding, there are no threatened or endangered plants on the property. Okaloosa County Stormwater Drainage System Okaloosa County has constructed a stormwater drainage system that runs through the Lake Blake drainage area. As part of this stormwater drainage system, Lake Blake collects diverted stormwater discharge from surrounding areas which have been previously developed. Residential neighborhoods are close to the area, specifically the Berkshire Woods Subdivision. Indeed, as a condition for the development of the Berkshire Woods Subdivision in 1976, the Okaloosa County Planning Commission required that a former owner of the property, Ron Blake, excavate the lake and have it made ready for stormwater drainage from the proposed development of the Berkshire Woods Subdivision. In addition to the residential areas and the public school to the south, there is a private school to the north across the road on Clifford Street which also diverts water to the lake from its campus and parking lots Okaloosa County has installed several pipes which carry stormwater from the surrounding developed areas into Lake Blake. The only drainage out of Lake Blake is via the stormwater discharge pipe located at the southern boundary of the property on Lewis Street which was installed by Okaloosa County in the 1960's. Okaloosa County's stormwater discharge system serving Lake Blake is integrated into a series of interconnecting underground stormwater pipes which route the flow of the water for approximately one-half mile before ultimately discharging water into Cinco Bayou. Okaloosa County's stormwater discharge system which ultimately connects Lake Blake with Cinco Bayou is composed of buried pipes. DEP considers buried pipes or culverts which convey stormwater as excavated water bodies. The installation of Okaloosa County's stormwater discharge system required the excavation of land. Under DEP's interpretation of its rules, specifically Rule 62-312.030(2), Florida Administrative Code, the underground installation of stormwater pipes is sufficient to establish a series of excavated water bodies which connect Lake Blake to Cinco Bayou. Prior to the installation of Okaloosa County's stormwater discharge pipe on Lewis Street in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property containing Lake Blake. The stormwater discharge pipe has continuously existed on the southern boundary of the property since its installation in the 1960's to the present. Lake Blake was not originally designed, constructed, nor permitted as a stormwater treatment or retention pond. Lake Blake incidentally resulted from the borrow pit excavations. Okaloosa County, however, has at least since 1976 utilized Lake Blake as part of its stormwater drainage system. Okaloosa County never acquired title to Lake Blake. In 1981, the Okaloosa County Board of Commissioners (who were not the owners of the property) applied for, and were issued by DER, a Construction Permit (No. RC-46-80-2031, dated May 27, 1981, which expired November 27, 1981), for "Blake Lake Modifications," which permit stated it was "to modify an existing stormwater drainage system." This permit allowed for, among other items, construction of "two earthen berms in Blake Lake" and "the diversion of lake flow from the western lake to the eastern lake." Although attempts were made to construct the two earthen berms, due to the white clay composition of the soil the berms were not successfully established. In 1984 DER issued another Construction Permit (No. 460853421 dated August 20, 1984, which expired August 15, 1987) to the Okaloosa County Board of Commissioners (who again were not the owners of the property) for the purpose constructing "two drainage channels . . . from a berm separating East and West Blake Lake." The drainage channels were thereafter completed and the east and west portions of the lake were eventually connected. On August 14, 1984, Okaloosa County also filed a Notice of New Stormwater Discharge with DER which proposed a re-routing of an existing stormwater drainage system which then diverted stormwater from the Candlewood Subdivision and Navy Street into Lake Blake. The stated purpose of the re-routing of the stormwater drainage system away from Lake Blake was to address flooding problems in the Candlewood Subdivision. By letter dated August 21, 1984, DER informed Okaloosa County that "the stormwater discharge is exempt from stormwater permitting requirements of the Department pursuant to Florida Administrative Code Rule 17-25.03(2)(c)." DER came to this conclusion in 1984 because the proposed project was "the modification of an existing County stormwater management system not serving a new development or increasing pollution loading." Although Lake Blake was utilized by Okaloosa County as part of the existing Okaloosa County stormwater drainage system, which in 1984 qualified for a DER stormwater permitting exemption, nothing pertaining to this stormwater permitting exemption supports a finding that Lake Blake was originally constructed, permitted or designed solely for the purpose of stormwater treatment so as to qualify for an exemption from DEP's dredge and fill jurisdiction under Rule 62-312.050(4), Florida Administrative Code. Dredge and Fill Permitting Jurisdiction Prior to the installation of Okaloosa County's stormwater discharge pipes on the property in the 1960's, there was no dredge and fill permitting jurisdiction which applied to the property and Lake Blake. Under current law, the Northwest District of Florida is governed by separate jurisdictional determination provisions. In order to initially establish DEP's dredge and fill permitting jurisdiction over wetlands and surface waters in the Northwest District, DEP must demonstrate that the wetlands and surface waters are connected to the surface waters of the State. Since 1995, isolated wetlands in all the rest of the State of Florida are regulated by DEP without regard to any connection to the surface waters of the State. In the Northwest District under Rule 62-312.030(2), Florida Administrative Code, "surface waters of the state are those waters listed below and excavated water bodies, except for those exempted by Section 62-312.050(4), F.A.C., which connect directly or via an excavated water body or series of excavated water bodies . . ." to waters of the State. Under Rule 62- 312.045, Florida Administrative Code, however, "[i]solated wetlands that infrequently flow or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction of the Department." By letter dated April 24, 2001, DEP advised Santa Rosa II, Inc., that the Lake Blake property was not subject to DEP's dredge and fill jurisdiction. The letter was sent in response to an application seeking to fill 2.5 acres of the southeastern portion of the lake for the construction of an apartment complex. The letter was issued by DEP's Northwest District, and signed by Martin Gawronski on behalf of Larry O'Donnell, the Environmental Manager for Permitting Section of the Northwest District. The letter was issued after a visit to the property by one or more DEP employees, and based on an informal determination that Lake Blake was not connected to the waters of the State. In May of 2001, the United States Army Corps of Engineers determined that the Lake Blake property was not within its jurisdiction. Subsequent to the issuance of the April 24, 2001, non- jurisdictional letter, certain employees of Okaloosa County (not specifically named in these proceedings) contacted DEP seeking reconsideration of DEP's decision. These Okaloosa County employees thereafter met with DEP employees at the property and communicated by telephone with DEP employees while DEP considered a re-determination of its non-jurisdictional decision. The property owners were then notified that DEP was in the process of re-evaluating its non-jurisdictional decision. By letter dated October 24, 2001, DEP advised Santa Rosa II, Inc., that DEP had made a "correction" to the letter of April 24, 2001, and had determined that the property was in fact subject to DEP's dredge and fill permitting jurisdiction, because the "pond" was "connected to jurisdictional waters" of the State. The October 24, 2001 letter, like the previous letter, was issued from DEP's Northwest District signed by Martin Gawronski on behalf of Larry O'Donnell. Between April 24, 2001, and October 24, 2001, there were no man-made alterations made to the Lake Blake property. Between March and April 2002, Maddan filled in a portion of the lake and lacustrine wetlands. Maddan also built two pedestrian footbridges over the lake to the small island in the middle of the lake. DEP asserted its dredge and fill permitting jurisdiction based upon the existence of a series of underground pipes installed by Okaloosa County as part of its stormwater drainage system that conveys excess stormwater from Lake Blake to Cinco Bayou. Installation of the underground pipes required excavation. Neither the April 24, 2001 letter, nor the subsequent October 24, 2001, letter issued by the Northwest District, is binding determination of DEP's dredge and fill permitting jurisdiction over the wetlands and surface waters of Lake Blake. The authority to make a binding DEP dredge and fill permitting jurisdictional determination is vested in Dr. John Tobe, Environmental Administrator of the Wetland Evaluation and Delineation Section and his staff. DEP's Site Inspections/Jurisdictional Determination In April of 2002, Stacy Owens, DEP Environmental Specialist, received a telephone call from Chuck Bonta with the Okaloosa County Code Enforcement Department, and an unnamed homeowner, complaining that Lee Maddan had built two unpermitted pedestrian footbridges at Lake Blake and was also filling in part of Lake Blake. Ms. Owens initially investigated whether DEP had issued any permits for the placement of fill in Lake Blake or the surrounding wetlands, and determined that no permits had been issued. Ms. Owens further discovered that a prior Notice of Violation and Orders for Corrective Action had been issued by DER in 1980 against the Okaloosa County Board of Commissioners and Lloyd D. Junger (a lessor conducting mining operations). The 1980 case pertained to the discharge of turbidities from the Lewis Street Pond into Cinco Bayou. A final order in that case was entered on January 5, 1981, requiring Okaloosa County to make payment to DER and take corrective action. On April 23, 2002, Ms. Owens followed up on these complaints by performing a site visit to Lake Blake. At this time Ms. Owens observed two unpermitted pedestrian footbridges, unpermitted fill in a finger of Lake Blake, and unpermitted fill within a 20-foot by 25-foot lacustrine wetland area. On April 25, 2002, Maddan came to Ms. Owens' office to discuss whether permits were necessary for the placement of fill at Lake Blake. At that time Maddan showed Ms. Owens the previous letters of April 24, 2001, and October 24, 2001, which had been sent from the Northwest District of DEP. Maddan stated that in his opinion no dredge and fill permit was needed because Lake Blake was not within the jurisdiction of DEP. Ms. Owens was then informed by employees of Okaloosa County that there were underground pipes connecting Lake Blake to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County an aerial map of the drainage area for Lake Blake which identified the location of the culvert on Lewis Street which conveys excess flow from Lake Blake to Cinco Bayou. On April 30, 2002, Ms. Owens performed another site inspection at Lake Blake. During this site inspection, she tracked the connection from Lake Blake to Cinco Bayou by personal observation. After her second site inspection, Ms. Owens e-mailed her findings to Dr. Tobe, and inquired whether the underground pipes satisfied the DEP requirements for connection to a water body of the State for the purpose of establishing DEP's dredge and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens that an underground pipe connection would satisfy DEP's jurisdictional requirements. On June 25, 2002, Dr. Tobe, Ms. Owens, and a DEP wetland delineation team visited the Lake Blake property for the purpose of making a jurisdictional determination. Maddan also accompanied Dr. Tobe and his team on the day of the site inspection. As a result of this inspection, Dr. Tobe completed and filed a Field Report for Lake Blake, Okaloosa County, dated June 25, 2002. As indicated in his Field Report, Dr. Tobe and his wetland delineation team determined that for jurisdictional purposes, Lake Blake was connected to the waters of the State by reason of the culvert on Lewis Street that ultimately discharges into Cinco Bayou. At the time of his inspection on June 22, 2002, Dr. Tobe did not observe water flowing from Lake Blake into the Lewis Street culvert. Dr. Tobe attributed this to abnormal drought conditions the area was then experiencing. Maddan, who has observed this area for many years, testified that the lake was near or slightly less than its normal water level on that date. Dr. Tobe conducted a further examination of the area to determine the ordinary high water line, and concluded that Lake Blake would at ordinary high water level flow into the Lewis Street culvert on a sufficiently regular frequency into Cinco Bayou, a water body of the State, in order to establish DEP's dredge and fill jurisdiction. In determining whether water exchange frequency is sufficient to establish jurisdiction, there is a DEP Interoffice Memorandum of October 31, 1988, setting out 25-year, 24-hour criteria which is used as guidance, but the criteria stated in this Memorandum have not been adopted as a rule, and are not singularly determinative of DEP's jurisdiction. At this time, Dr. Tobe and his team also performed a wetland boundary delineation. Dr. Tobe found hydric soils and wetland plants dominating the area. The wetland delineation boundary was determined by the continual interpretation of vegetation, soils, and hydrologic indicators. As a result of his inspection and wetland boundary delineation, Dr. Tobe concluded that unpermitted fill had been placed within the surface waters of the State, and in lacustrine wetlands.. Thereafter on July 18, 2002, DEP sent Maddan a Warning Letter (DF-SO-46-022) requesting that Maddan cease dredging, filling or construction activities at Lake Blake without obtaining a permit. Subsequent to DEP's sending Maddan the Warning Letter of July 18, 2002, Stacy Owens visited the Lake Blake site on numerous occasions beginning in October of 2002, and continuing through July of 2003. On most of these site visits Ms. Owens observed water flowing from Lake Blake through the Lewis Street culvert. Ms. Owens documented water flowing from Lake Blake through the Lewis Street culvert on October 29, 2002, November 5, 2002, May 20, 2003, June 20, 2003, June 23, 2003, June 27, 2003, and July 8, 2003. The area was not experiencing abnormally excessive rainfall events at the times that Ms. Owens documented water flowing from Lake Blake into the Lewis Street culvert. Maddan testified that in his personal observation over many years, Lake Blake generally discharges excess stormwater into the Lewis Street culvert only as a result from a significant rainfall event. Lake Blake discharges water into the Lewis Street culvert at regular intervals. The water discharged from Lake Blake ultimately is released through the Okaloosa County stormwater drainage system into the surface waters of Cinco Bayou, a water body of the State of Florida. The Okaloosa County stormwater drainage system connecting Lake Blake to Cinco Bayou is a series of excavated water bodies. Lake Blake is connected to the surface waters of Cinco Bayou, and regularly exchanges water with Cinco Bayou. Exemptions from DEP's Jurisdiction To assert dredge and fill permitting jurisdiction over this property, not only must Lake Blake be connected to the waters of the State, but the property must not be otherwise exempt from dredge and fill permitting jurisdiction under either statute or rule. On August 29, 2002, under the authority of the Corporation, Maddan filed a "Joint Application for Works in the Waters of Florida" with DEP requesting an exemption from DEP's dredge and fill permitting jurisdiction under Rule Chapter 17- 312, re-codified as Rule Chapter 62-312. Rule 62-312.050, Florida Administrative Code, sets out the recognized exemptions to DEP's dredge and fill permitting jurisdiction. Maddan primarily relies on Rule 62-312.050(4) which provides that "[n]o permit under this chapter shall be required for dredging or filling in waters which are contained in those artificially constructed stormwater treatment and conveyance systems designed solely for the purpose of stormwater treatment and that are regulated by the Department or the water management district." Lake Blake, however, is the result of excavations in a borrow pit. Because of surrounding development, Lake Blake receives stormwater runoff; however, the lake was not "designed solely for the purpose of stormwater treatment," and cannot therefore qualify for this exemption. Maddan also cites Rule 62-312.050(1)(g), Florida Administrative Code, which provides an exemption for the "construction of seawalls or riprap, including only that backfilling needed to level land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control." Even assuming that the filling of the finger of Lake Blake meets the test of construction of a seawall, there is no evidence that such filling of Lake Blake was ever subjected to appropriate water quality tests, much less meeting such water quality tests as well as the other requirements of this exemption. In addition to the exemptions established by Rule 62- 312.050, Maddan cites statutory exemptions. The definition of "waters" which are regulated under Chapter 403 as set forth in Section 403.031(13), provides in pertinent part that "[w]aters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water." Although Lake Blake is owned entirely by one person, this provision does not exempt Lake Blake because the lake actually discharges on the surface waters of Cinco Bayou. Maddan also cites Section 403.812, which provides that "[t]he department shall not require dredge and fill permits for stormwater management systems where such systems are located landward of the point of connection to waters of the state and are designed, constructed operated and maintained for stormwater treatment, flood attenuation, or irrigation." Although Lake Blake has been utilized by Okaloosa County's stormwater drainage system which is located landward of Cinco Bayou, the lake was not designed nor constructed for stormwater treatment, flood attenuation or irrigation, and it is not being operated nor maintained for stormwater treatment, flood attenuation or irrigation. Lake Blake does not qualify for an exemption from DEP's dredge and fill permitting jurisdiction. Dredge and Fill Permit Denial On September 30, 2002, Maddan was notified of DEP's denial of his application to place a modular home on a fill pad in Lake Blake. Because Maddan took the position that DEP did not have dredge and fill jurisdiction over Lake Blake, or alternatively that Lake was exempt from DEP's jurisdiction, an analysis of whether Maddan's application might be approved under Rule 62- 312.060(5), Florida Administrative Code, has not been done. DEP has not performed any analysis of water quality standards nor public interest assessment required by the rule, and Maddan offered no evidence which would be necessary to make such determinations.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered upholding denial of Maddan's Permit Application No. 46-0199306- 001-EE. DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida. S RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2003. COPIES FURNISHED: Charles T. Collette, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 James E. Moore, Esquire Post Office Box 746 Niceville, Florida 32588 Robert W. Stills, Jr., Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased 487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application. The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation. The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property. The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area. On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system. The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use. Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months. The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species. The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands. The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the application. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER 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 30th day of November, 1983.
