The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON 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 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue Whether the Petitioner's water supply system that supplies water to residents of Cypress Knee Cove comes under the jurisdiction of the Respondent and, if so, is the level of Ethylene dibromide (EDB) in the water supplied by Petitioner an imminent hazard to the residents of Cypress Knee Cove.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found. Petitioner George T. Donaldson owns and operates Cypress Knee Cove Mobile Home Park (Park) a residential mobile home park located at 3300 Canal Road, Lake Wales, Polk County, Florida. Petitioner owns and operates a water system providing piped water for consumption and use by the residents of the Park. The water system uses a groundwater source and can have up to 32 connections. The water system is presently connected to 27 mobile homes. Of those 27 mobile homes, one is vacant, 11 are used year-round, 15 are used seasonally. Of those being used seasonally, four are being used six months or more out of the year. Nineteen residents live in the 11 mobile homes used year-round and eight residents live in the four mobile homes 6 months or more out of the year. There are a total of 46 residents living in the Park during the year. The balance of the residents live in the Park less than 6 months out of the year. All of the mobile homes at the Park are permanently mounted and remain on the lots year-round. Twenty-five of the mobile homes in the Park are privately owned by residents of the Park and are available for year-round occupancy by the owner. Sampling for EDB from Petitioner's water system at the Park are done by the Department of Health and Rehabilitative Services, Polk County Health Unity (PCHU) on March 14, 1984 and the samples analyzed by the University of Florida (UF) for EDB. The UF reported EDB concentration of 0.02756 ppb. No samples of water from Petitioner's water system at the Park were collected by PCHU for testing for EDB from March 14, 1984 and until April 4, 1988. The PCHU began sampling Petitioner's water system at the Park again in April, 1988 and submitting those samples to the Department of Health and Rehabilitative Services (HRS) state certified laboratory in Jacksonville, Florida for analysis. The following are the results of those tests: Date of Sampling EDB Level April 4, 1988 below detectable level of 0.02 ppb - BDL August 17, 1988 0.17 ppb October 5, 1988 unconfirmed positive- resample November 7, 1988 0.058 ppb November 22, 1988 BDL-analytical problem- resample December 1, 1988 BDL January 4, 1989 0.062 ppb *January 18, 1989 0.070 ppb July 26, 1990 0.058 ppb *split sample with P.E. LaMoreaux and Associates P.E. LaMoreaux and Associates, a private state certified laboratory (PELA), analyzed samples taken from Petitioner's water system at the Park. The following are the results of those samples: Date of Sampling EDB Level August 23, 1988 BDL October 12, 1988 BDL *January 18, 1989 0.12 ppb **January 18, 1989 BDL *split sample with HRS **Revised report of January 18, 1989 split sample with HRS The Sun Air water system is owned and operated by Polk County and potable water for the Park is immediately available from this water system. The cost of connection to Polk County's Sun Air water system for residents in this area is covered under the state of Florida's EDB grant program. However, since the mobile homes do not have individual meters from Petitioner's water system, the grant will only pay for one hook-up. A water line from Sun Air runs along Canal Road beside the Park and is available for immediate connection. Although the hook-up is paid for by the grant, Polk County would charge for the water furnished to the Park. Sun Air water system was sampled in May, 1986 and again in July, 1990. The 1986 sample was analyzed by PELA and the level of EDB was BDL. The 1990 sample was analyzed by HRS and the EDB level was also BDL. An alternative method of treating EDB contamination at the Park would be the installation of a carbon filter system which cost approximately $3,000.00. Fluctuations in the EDB level may be due to the nature of EDB and the local hydrology. Should Petitioner hook-up to the Sun Air water system, his present well may be used for irrigation or watering lawns. There was no evidence adduced at the hearing concerning the allegation of cost in Count III.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order directing Petitioner to connect to the available and approved Polk County water system or install a treatment system necessary for the reduction of EDB below the established MCL and placing appropriate and reasonable time schedule for commencing and completing either alternative and other conditions deemed appropriate and reasonable under the circumstances. It is further Recommended that Count II be dismissed. DONE and ENTERED this 26th day of October, 1990, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner The first clause of the first sentence of proposed Finding of Fact 1 is adopted in Finding of Fact 1, the balance of sentence one is not supported by substantial competent evidence in the record. The balance of proposed Finding of Fact 1 is not material. The first clause of the first sentence of proposed Finding of Fact 2 is not supported by substantial competence evidence in the record. The balance of proposed Finding of Fact 2 is adopted in Findings of Fact 10 and 11. Proposed Finding of Fact 3 is not supported by substantial competent evidence in the record. Proposed Finding of Fact 4 adopted in Findings of Fact 12 and 15. While the undersigned is aware that cost is a concern to the Petitioner, it is not a necessary Finding of Fact to reach a conclusion. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-6. Adopted in Findings of Fact 1, 2, 3, 4, 7 and 7, respectively. 7. Not material. 8.-10. Adopted in Findings of Fact 5, 6 and 4, respectively. 11.-14. Adopted in Findings of Fact 4 and 5. 15.-16. Unnecessary. 17.-18. Adopted in Finding of Fact 8. 19. Adopted In Findings of Fact 9 and 10. 20.-22. Adopted in Finding of Fact 10. 23. Adopted in Finding of Fact 11. 24.-25. Adopted in Finding of Fact 10. 26. Adopted in Finding of Fact 11. 27.-29. Adopted in Finding of Fact 10. 30. Adopted in Finding of Fact 11. 31.-32. Adopted in Finding of Fact 10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12 and 13. 35.-38. Adopted in Findings of Fact 13, 15, 16 and 17, respectively. 39.-43. Not material or necessary. 44. Adopted in Finding of Fact 18. COPIES FURNISHED: Francine M. Ffolkes, Esq. 2600 Blair Stone Road Tallahassee, FL 32399-2400 George T. Donaldson 3300 Canal Road Lake Wales, FL 33853 Dale W. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue This is a procurement protest. The ultimate issue is whether the Respondent’s award of the "Agreement for the Construction and Operation of a Seawater Desalination Plant and Water Purchase Agreement" ("WPA") to Intervenor, S & W Water, LLC ("S&W") on July 19, 1999, is contrary to Tampa Bay Water's (TBW’s) governing statutes, its rules or policies, or the proposal specifications, or is clearly erroneous, contrary to competition, arbitrary, or capricious. Additional issues presented for decision are: (1) whether Petitioner has standing to maintain this protest; and (2) whether, by participating in the procurement process, Petitioner has waived or is estopped from claiming irregularities arising out of that process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that TBW enter a Final Order denying Petitioner's Formal Protest. Jurisdiction is reserved for consideration of S&W's request for a determination of improper purpose under Section 120.595(1), Florida Statutes, if such request is made by motion within 10 days from the issuance of this Recommended Order. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 25th day of October, 1999. COPIES FURNISHED: Charles W. Pittman, Esquire 400 North Tampa Street Suite 1040 Tampa, Florida 33602 Richard A. Harrison, Esquire John W. Wilcox, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111 Barnett Plaza, Suite 1240 101 E. Kennedy Boulevard Tampa, Florida 33601-2111 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive Suite 211 Clearwater, Florida 33761-3950 John H. Rains, III, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 One Tampa City Center, Suite 2100 Tampa, Florida 33601
Findings Of Fact Existing Conditions Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84). Flooding The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle). The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds. Description of Project The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A. Benefits, Future Land Use It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum, Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction. The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water stands on some of the land during practically the entire wet season virtually every year. As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced. There is merit in their contention in that the adjacent project works adversely affected both depth and duration of flooding in the area west of Levees 1, 2 and 3. (Emphasis added) The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/ With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative: Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described? A No, sir, not at all. Not with what I understand is going to be done with the project I wouldn't change anything. In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52: As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared as a land use map with the basic control matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of the changes were an upgrading of existing beef cattle operations. Such upgrading was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue. Project Permitting History The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list." Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were: Whether local approval pursuant to Section 253.124, Florida Statutes would be required? Would an exception from dissolved oxygen (DO) standards be necessary? Whether local water quality standards would apply if they were stricter than state standards? Local Approval As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed: Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution. The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79- 72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that: Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project. Ms. Tschinkel did, however, assure Mrs. Jackman that: The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart- ment has made this project part of its public works package given each year to Congress. We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible. Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval. In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253, Florida Statutes jurisdiction in the canals and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width. Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this. Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety: The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA- TION for purposes of this proceeding hereby stipulate and agree that: The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required. This Stipulation is executed by counsel for each party on the date shown. On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER. Alternative Site Specific Criteria After receipt of SFWMD's permit application for the construction of C- 139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said: Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15. The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that: On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background. The situation regarding affirmative, reasonable assurance appears to be this: widespread and frequent observations of DO data which are less than the minimum for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139 is predicted to exacerbate existing stress- es on the DO regime.... However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity. A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote: Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields. According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the borrow canal will be exacerbated in the proposed C-139. However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark" station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that: I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments: Indication that DOs are not harmful to local organisms are, in a legal sense, irrelevant to the question. The data provided give evidence of the occurrence of low DOs in the area. Since the measured low DOs seem to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat. The proposed "standard" cannot be logically derived from the DO measurements provided. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/ The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than 1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area. Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l. The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project, which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem. The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner. His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested: Data which supports the contention that the condition of the waters is the re- sult of natural causes, that is, there is an absence of man-induced alteration; or Data which supports the contention that the condition of the waters is the re- sult of man-induced causes which cannot be controlled or abated with technology or management practices. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely. The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review. Further, the data submitted did not support the contention in the petition of a corre- lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states: ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by the Department to support the request for an exception, and the District is cur- rently putting this together. It is the general feeling that with this additional data, granting the exception should be possible. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established: During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added) Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/ On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that: I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request. It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over 24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate: Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than 3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following: My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1), Florida Administrative Code, there may be a consideration for "man-induced causes which cannot be controlled or abated I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources. However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.) Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District. Dissolved Oxygen and Exception Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light, photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted." Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A- 25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C- 139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging. Hydroperiod in WCA-3A The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C- 60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area. S-239 and Fill When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill; 530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet. In order to allow service vehicles to pass across the canal a bridge 13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark. Local Water Quality Standards The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980. On June 26, 1980, DER issued an amended letter of intent which said: This letter is an amendment of the letter of intent to issue signed by the Department on May 20, 1980. In that letter, the Depart- ment stated: "This intent to issue is contin- gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code." The preceding paragraph is hereby amended to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l. The May 20, 1980, letter also contained a paragraph that read: "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue the permit." This paragraph is hereby stricken and the following paragraph substituted: "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen." The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a license under Chapter 27 of the County Code or for a variance from the standards established therein. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982. * NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review in the Division's Clerk's Office.
The Issue Whether Rules 40B-1.702(4); 40B-4.1020(12) and (30); 40B-4.1030; 40B-4.1040(1)(b) and (c); 40B-4.2030(4); 40B-4.3000(1)(a); 40B-4.3010; 40B-4.3020; 40B-4.3030; 40B- 4.3040; and 40B-400.103(1)(h), Florida Administrative Code, of the Suwannee River Water Management District, are an invalid exercise of delegated legislative authority for reasons described in the Second Amended Petition to Determine Validity of Rules.
Findings Of Fact Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. The District is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an Environmental Resource Permit (ERP) issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between the District and the Department (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the work of the district (WOD) impacts. Petitioner has not filed a permit application with the District regarding the project. It is Petitioner's position that to do so would be futile. The Challenged Rules The rules or portions thereof which are challenged in this proceeding are as follows: Rule 40B-1.702(4), Florida Administrative Code, reads as follows: (4) A works of the district permit under Chapter 40B-4, F.A.C., must be obtained prior to initiating any project as outlined in (3) above within a regulatory floodway as defined by the District. Rule 40B-4.1020(12) and (30), Florida Administrative Code, read as follows: (12) "Floodway" or 'regulatory floodway" means the channel of a river, stream, or other watercourse and adjacent land areas that must be reserved in order to discharge the 100-year flood without cumulatively increasing the 100-year flood elevation more than a designated height. Unless otherwise noted, all regulatory floodways in the Suwannee River Water Management District provide for no more then one-foot rise in surface water. * * * (30) "Work of the district" means those projects and works including, but not limited to, structures, impoundments, wells, streams, and other watercourses, together with the appurtenant facilities and accompanying lands, which have been officially adopted by the governing board as works of the district. Works of the district officially adopted by the board are adopted by rule in Rule 40B-4.3000 of this chapter. Rule 40B-4.1030, Florida Administrative Code, reads as follows: The implementation dates of this chapter are as follows: January 1, 1986 for Rule 40B- 4.1040(1)(a) which requires persons to obtain surfacewater management permits. April 1, 1986 for Rule 40B- 4.1040(1)(b) and Rule 40B-4.3040 which require persons to obtain works of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Alapaha River and its floodway in Hamilton County, Florida; The Aucilla River and its floodway in Jefferson, Madison, or Taylor counties, Florida; The Suwannee River or its floodway in Columbia, Hamilton, Lafayette, Madison, or Suwannee counties, Florida; or The Withlacoochee River and its floodway in Hamilton or Madison counties, Florida. (c) July 1, 1986 for Rule 40B-4.1040(1)(b) or 40B-4.3040 which require persons to obtain work of the district development permit if the proposed development is in one of the following areas adopted as a work of the district. The Santa Fe River and its floodway in Alachua, Bradford, Columbia, Gilchrist, Suwannee, or Union counties, Florida; or The Suwannee River and its floodway in Dixie, Gilchrist, or Levy counties, Florida. Rule 40B-4.1040(1)(b) and (c), Florida Administrative Code, reads as follows: (1) Permits are required as follows: * * * Works of the district development permit prior to connecting with, placing structures or works in or across, discharging to, or other development within a work of the district. When the need to obtain a works of the district development permit is in conjunction with the requirements for obtaining a surfacewater management permit, application shall be made and shall be considered by the district as part of the request for a surfacewater management permit application. Otherwise, a separate works of the district development permit must be obtained. Rule 40B-4.2030(4), Florida Administrative Code, reads as follows: (4) The new surfacewater management systems or individual works shall not facilitate development in a work of the district if such developments will have the potential of reducing floodway conveyance. (emphasis supplied) Rule 40B-4.3000(1)(a), Florida Administrative Code, reads as follows: The governing board is authorized to adopt and prescribe the manner in which persons may connect with or make use of works of the district pursuant to Section 373.085, Florida Statutes. Further, Section 373.019(15) provides that works of the district may include streams and accompanying lands as adopted by the governing board. In order to implement the non-structural flood control policy of the district, the governing board finds it is necessary to prevent any obstruction of the free flow of water of rivers and streams within the district. Therefore, the governing board does hereby adopt the following rivers and their accompanying floodways as works of the district: The Alapaha River and its floodway in Hamilton County, Florida; . . . . Rule 40B-4.3010, Florida Administrative Code, reads as follows: A general works of the district development permit may be granted pursuant to the procedures in Rule 40B-1.703 to any person for the development described below: Construction of a structure for single-family residential or agricultural use including the leveling of land for the foundation and associated private water supply, wastewater disposal, and driveway access which is in compliance with all applicable ordinances or rules of local government, state, and federal agencies, and which meets the requirements of this chapter. A general permit issued pursuant to this rule shall be subject to the conditions in Rule 40B-4.3030. Rule 40B-4.3020, Florida Administrative Code, reads as follows: Content of Works of the District Development Permit Applications. Applications for a general work of the district development permit shall be filed with the district and shall contain the following: Form 40B-4-5, "Application for General Work of the District Development Permit," Suwannee River Water Management District, 4-1-86, hereby incorporated by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the applicant or owner; Copies of all permits received from local units of government, state, or federal agencies, specifically a copy of the building or development permit issued by the appropriate unit of local government, including any variances issued thereto, and a copy of the onsite sewage disposal system permit issued by the Florida Department of Health and Rehabilitative Services under Chapter 10D- 6, Florida Administrative Code; A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon; and Any supporting calculations, designs, surveys, or applicable documents, which in the applicant's opinion, may support the application. Applications for individual or conceptual approval works of the district development permits shall be filed with the district and shall contain the following: Form 40B-4-4, "Application for Surfacewater Management System Construction, Alteration, Operation, Maintenance, and/or Works of the District Development", Suwannee River Water Management District, 10-1-85, hereby adopted by reference and which contains the following: The applicant's name and complete address including zip code; The owner's name and complete address if applicant is other than the owner; If applicable, the name, complete address, phone number, and contact person of the owner. General project information including: The applicant's project name or identification number; The project location relative to county, section, township, and range, or a metes and bounds description; The total project area in acres; The total land area owned or controlled by the applicant or owner which is contiguous with the project area; A description of the scope of the proposed project including the land uses to be served; A description of the proposed surfacewater management system or work; A description of the water body or area which will receive any proposed discharges from the system; and Anticipated beginning and ending date of construction or alteration. Copies of all permits received from, or applications made to, local units of government, state, or federal agencies. A site plan to scale showing all improvements, work, or works with any conditions or limitations placed thereon. Any supporting calculations, designs, surveys, or applicable legal documents, which in the applicant's opinion, support the application. Copies of engineer or surveyor certifications required by this chapter. Rule 40B-4.3030, Florida Administrative Code, reads as follows: Conditions for Issuance of Works of the District Development Permits. The district will not approve the issuance of separate permits for development in a work of the district for any proposed project that requires a district surfacewater management permit pursuant to Part II of this chapter. For such projects, development in a work of the district may be authorized as part of any surfacewater management permit issued. The district will not approve the issuance of a works of the district development permit for any work, structures, road, or other facilities which have the potential of individually or cumulatively reducing floodway conveyance or increasing water-surface elevations above the 100-year flood elevation, or increasing soil erosion. The district will presume such a facility will not reduce conveyance or increase water-surface elevations above the 100-year flood elevation or increase soil erosion if: Roads with public access are constructed and laid out in conformance with the minimum standards of local government. Where roads are not required to be paved, the applicant must provide design specifications for erosion and sediment control. Where roads are required to be paved, swales will generally be considered adequate for erosion and sediment control; Buildings in the floodway are elevated on piles without the use of fill such that the lowest structural member of the first floor of the building is at an elevation at least one foot above the 100-year flood elevation; The area below the first floor of elevated buildings is left clear and unobstructed except for the piles or stairways; A permanent elevation monument is established on the property to be developed by a surveyor. The monument shall be adequate to establish land surface and minimum buildup elevations to the nearest 1/100 of a foot; No permanent fill or other obstructions are placed above the natural grade of the ground except for minor obstructions which are less than or equal to 100 square feet of the cross-sectional area of the floodway on any building or other similar structure provided that all such obstruction developed on any single parcel of land after the implementation date of this chapter is considered cumulatively; No activities are proposed which would result in the filling or conversion of wetlands. For any structure placed within a floodway which, because of its proposed design and method of construction, may, in the opinion of the district, result in obstruction of flows or increase in the water surface elevation of the 100-year flood, the district may require as a condition for issuance of a work of the district development permit that an engineer certify that such a structure will not obstruct flows or increase 100-year flood elevations. The following conditions shall apply to all works of the district development permits issued for development on lands subdivided after January 1, 1985: Clearing of land shall be limited [except as provided in (b) and (c) below] to that necessary to remove diseased vegetation, construct structures, associated water supply, wastewater disposal, and private driveway access facilities, and no construction, additions or reconstruction shall occur in the front 75 feet of an area immediately adjacent to a water. Clearing of vegetation within the front 75 feet immediately adjacent to a water shall be limited to that necessary to gain access or remove diseased vegetation. Harvest or regeneration of timber or agricultural crops shall not be limited provided the erosion of disturbed soils can be controlled through the use of appropriate best management practices, the seasonal scheduling of such activities will avoid work during times of high-flood hazard, and the 75 feet immediately adjacent to and including the normally recognized bank of a water is left in its natural state as a buffer strip. As to those lands subdivided prior to January 1, 1985, the governing board shall, in cases of extreme hardship, issue works of the district development permits with exceptions to the conditions listed in Rule 40B-4.3030(4)(a) through (c). The 75-foot setback in paragraphs (a) through (d) above shall be considered a minimum depth for an undisturbed buffer. The limitations on disturbance and clearing within the buffer as set out in paragraphs through (d) above shall apply, and any runoff through the buffer shall be maintained as unchannelized sheet flow. The actual depth of the setback and buffer for any land use other than single-family residential development, agriculture, or forestry shall be calculated in accordance with the methodology in: "Urban Hydrology for Small Watersheds", U.S. Department of Agriculture, Soil Conservation Service, Engineering Division, Technical Release 55, June 1986; and, "Buffer Zone Study for Suwannee River Water Management District", Dames and Moore, September 8, 1988, such that the post-development composite curve number for any one-acre area within the encroachment line does not exceed; a value of 46 for areas within the encroachment line with predominantly Class A soils; a value of 65 for areas within the encroachment line with predominantly Class B soils; a value of 77 for areas within the encroachment line with predominantly Class C soils; or a value of 82 for areas within the encroachment line with predominantly Class D soils. (emphasis supplied) Rule 40B-4.3040, Florida Administrative Code, reads as follows: Unlawful Use of Works of the District. It shall be unlawful to connect with, place a structure in or across, or otherwise cause development to occur in a work of the district without a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause an unpermitted development to be removed or permitted. It shall be unlawful for any permitted use to violate the provisions of Chapter 373, Florida Statutes, or this chapter, or the limiting conditions of a works of the district development permit. The district may use any remedy available to it under Chapter 120 or 373, Florida Statutes, and Chapter 40B-1, Florida Administrative Code, to cause the unpermitted use to be removed or brought into compliance with Chapter 373, Florida Statutes, and this chapter. Damage to works of the district resulting from violations specified in Rule 40B-4.3040(1) and (2) above shall be repaired by the violator to the satisfaction of the district. In lieu of making repairs, the violator may deposit with the district a sufficient sum to insure such repair. Rule 40B-400.103(1)(h), Florida Administrative Code, reads as follows: (1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or chapter 40B-4, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system: * * * (h) Will not cause adverse impacts to a work of the District established pursuant to s. 373.086. . . . Facts Based Upon the Evidence of Record History of the rules Mr. David Fisk is Assistant Director of the District. At the time of the hearing, he had been employed there for 26 and one-half years. He played a significant role in the rule adoption process of the rules that are the subject of this dispute. As part of that process, the District entered into a consulting contract with an engineering, planning, and consulting firm and consulted with the U.S. Corps of Engineers and the Federal Emergency Management Agency (FEMA), to conduct what are described as the FEMA flood studies. Additionally, the district commissioned an aerial photography consultant who provided a series of rectified ortho photographs of the entire floodplain of the rivers within the District, and a surveying subcontractor who provided vertical control and survey cross sections and hydrographic surveys of the rivers. The District also worked in conjunction with the United States Geological Survey to accumulate all of the hydrologic record available on flooding. The information was given to the U.S. Army Corps of Engineers who, operating under FEMA guidelines for conducting flood insurance rate studies, performed the analytical and computer modeling work to identify the flood plains and floodway boundaries. The District used the amassed knowledge of maps, cross sections and surveys that were developed as part of the FEMA flood studies as technical evidence or support for the adoption of the works of the district rules. Following a series of public workshops and public hearings in 1985, the rules were adopted and became effective in 1986. None of the rules were challenged in their proposed state. The District adopted the floodways of the Suwannee, Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works of the district. According to Mr. Fisk, the District adopted the rules pursuant to Section 373.086, Florida Statutes, which provided authority to the District to adopt district works and Section 373.085, Florida Statutes, which provided authority to regulate activities within those works. The Floodway Line Petitioner hired Mr. John Barnard, a professional civil engineer, with extensive environmental permitting experience, to look at the floodway and floodplain issues associated with Petitioner's site and project. Mr. Barnard conducted an engineering study entitled, "Floodplain Evaluation." It was Mr. Barnard's opinion that FEMA's determination of the floodway line was less than precise. Mr. Barnard used FEMA's data regarding the base flood elevation but manually changed the encroachment factor resulting in his placement of the floodway line in a different location than determined by FEMA. Mr. Barnard acknowledged that different engineers using different encroachment factors would reach different conclusions.1/ Respondent's expert in hydrology and hydraulic engineering, Brett Cunningham, noted that the definition of floodway in Rule 40B-4.1020(12), Florida Administrative Code, is essentially the same definition that used is in the FEMA regulations and which also is commonly used across the country in environmental rules and regulations. Mr. Barnard also acknowledged that the District's definition of "floodway", as found in Rule 40B-4.1020(12), Florida Administrative Code, is fairly commonly used by environmental regulatory agencies. Moreover, it was Mr. Cunningham's opinion that the Alapaha River is a stream or watercourse within the meaning of the rule and its floodway an accompanying land. In Mr. Cunningham's opinion, the FEMA flood insurance studies are widely used across the country for a variety of reasons and are typically relied upon by hydrologists and engineers to locate floodways. The definition of "works of the district" in Rule 40B-1020(30), Florida Administrative Code, is taken directly from the language found in Section 373.019(23), Florida Statutes. The statutory definition includes express references to streams and other watercourses, together with the appurtenant facilities and accompanying lands. Petitioner alleges that the phrase "will not cause adverse impact to a work of the SRWMD" as found in Rule 40B- 400.103(1)(h) is not clear because it does not identify what specific adverse impacts are being reviewed. While Petitioner's expert, Mr. Price, was not clear as to what the phrase means, Respondent's expert, Mr. Cunningham, understood the meaning of the phrase and noted that "adverse impact" is a phrase which is very commonplace in the rules and regulations of environmental agencies and is attributed a commonsense definition. The expert engineers differed in their opinions as to the meaning of the term "potential for reducing floodway conveyance" as used in Rule 40B-4.2030(4), Florida Administrative Code. According to Petitioner's expert engineer, Mr. Barnard, "potential for reducing floodway conveyance" is not a specific term that is open to interpretation as an engineer, and that he cannot quantify what constitutes "potential." Respondent's expert, Mr. Cunningham, understood the meaning of the phrase to be any increase in floodway conveyance. It was his opinion that there was nothing about that phrase to cause confusion. Rule 40B-4.3030, Florida Administrative Code, addresses conditions for issuance of works of the district development permits. Petitioner's expert Mr. Price testified that there is no quantification to what constitutes an "increase in soil erosion" as referenced in subsection (2) and linked the reference of soil erosion to a 100-year flood event referenced in the same subsection. Mr. Cunningham was of the opinion that there is no need to quantify an increase in soil erosion in the rule. He noted that soil erosion is used in a common sense manner and that attempting to put a numerical limit on it is not practical and "it's not something that's done anywhere throughout the country. It's just not something that lends itself to easy quantification like flood stages do". Mr. Cunningham's opinion that the words and phrases which Petitioner asserts are vague are words of common usage and understanding to persons in the field is the more persuasive testimony. This opinion is also consistent with statutory construction used by courts which will be addressed in the conclusions of law.
The Issue Whether permission should be granted to Petitioner, pursuant to Chapter 380, Florida Statutes, to develop land in Manatee County by phosphate mining operations, as set forth in the petition.
Findings Of Fact Estech General Chemicals Corporation (Estech) is a Delaware corporation. It was formerly Swift Agricultural Chemicals Corporation, but the corporate name was changed on August 1, 1979. The application was filed in the name of Swift Agricultural Chemicals Corporation, but Estech is the corporate successor to Swift's interests. (Stipulation) In 1965-66, Estech purchased approximately 10,393 acres of land in Manatee County as a potential phosphate mining site. Estech has been actively mining phosphate rock in Florida for over fifty years, and purchased the Manatee County property because large deposits of phosphate rock lie under the surface of land. Phosphate rock is a valuable mineral resource and is an ingredient in fertilizers. (Stipulation) The property is classified as a general agricultural district under the Manatee County Zoning Ordinance. Mining is authorized in such a district by "special exception" as provided in the ordinance. Additionally, Manatee County requires approval of a master mining plan for any mining operations. Such approval is granted through a two-step process. First, an applicant must obtain approval for a special exception, its master mining plan, and development of regional impact (DRI) Thereafter, the applicant must obtain an operating permit in the manner described in the zoning ordinance. Prior to granting a special exception, the County Planning Commission and Board of County Commissioners (Board) must find that the proposed use will be reasonably compatible with surrounding uses, and that any nuisance or hazardous feature involved is suitably separated and buffered from adjacent uses. The ordinance specifies detailed information to be contained in applications for exceptions, including a conceptual reclamation plan, reclamation bond, and evidence of financial responsibility after master plan approval and prior to issuance of any operating permit. It further provides for regular inspection of constructed facilities, reports, and compliance by the applicant with regulations as to matters such as dam construction, water withdrawals, water quality, and the like. Manatee County does not yet have a finally approved land use plan under the Comprehensive Planning Act of 1975, but a draft thereof is now pending before the Board. (Stipulation, testimony of Rile, Exhibit 20) In the past, Manatee County has granted other applications of special exceptions, DRI development orders and master mining plan approval for mining phosphate rock, subject to conditions and limitations, as follow; On January 28, 1974, the Board granted approval to Beker Phosphate Company for phosphate mining on approximately 10, 970 acres of land adjacent to Estech's southern and western borders. On December 27, 1977, the Board granted approval to W. R. Grace and Company for phosphate mining on approximately 5,050 acres of land adjacent to Estech's northern and eastern borders. By approving these applications, the Board has authorized phosphate mining by W. R. Grace and Beker on large tracts of land adjacent to Estech's property, subject to conditions and limitations. Additionally, on July 7, 1976, the Board granted approval to Phillips Petroleum Company for phosphate mining on approximately 6500 acres of land in southeastern Manatee County. On September 14, 1978, the approval was rescinded by an amended development order pending the submission of additional evidence and testimony at a new hearing. None of the above mining developments are currently conducting mining operations. (Stipulation) On August 3, 1977, before the approval of the W. R. Grace and Company mine, Estech filed an application with the Southwest Florida cater Management District for a consumptive use permit authorizing the use of water for mining operations. On September 6, 1978, the consumptive use permit was issued pursuant to Order No. 78-75 of the District Governing Board. (Stipulation, Exhibit 1) On May 5, 1978, Estech filed an application for special exception with Manatee County. A master mining plan and all required documents were also filed with the application. Review of the application was made by the staff of the County Planning Department which recommended development approval subject to certain conditions. (Stipulation, Exhibit 3, 6) On May 9, 1978, Estech filed a DRI application with the Tampa Day Regional Planning Council (TBRPC) and with Manatee County. On November 13, 1978, the governing board of the TBRPC held a public hearing to consider Estech's application for DRI approval. At the close of the hearing, the governing board of the TBRPC adopted the report recommending approval of Estech's application subject to conditions. (Stipulation, Exhibit 4-5, 6) On January 10 and 11, 1979, a public hearing was held jointly by the Board and the County Planning Commission on the various applications. The parties to the hearing were Estech, Manatee County, and Sarasota County who entered the proceeding as an intervenor. Also represented were Manatee County Planning and Development Board and the TBRPC. Notice of the hearing was provided to the public and the Department of Community Affairs (DCA). On February 22, 1979, the Manatee County Planning Commission unanimously adopted a Recommended Development Order recommending that the Board approve the development of regional impact, the master mining plan and special exception with conditions. (Stipulation, Exhibits 1-10) On August 9, 1979, the Board approved a motion denying the Estech special exception, and on August 16, the Board adopted a resolution denying the special exception, master mining and reclamation plan, and the application for development approval The stated reasons for denial cited the Nanatee County Zoning Ordinance and stated that (a) "the use contemplated by the development is not reasonably compatible with surrounding uses," and (b) "nuisances or hazardous features are involved in the development and same are not suitably separated and buffed from adjacent uses." The Board therefore determined, pursuant to Section 380.06(11), F.S., that: The development is not located in an area of critical state concern. The State of Florida has not adopted a land development plan applicable to this area. The development is not consistent with local land development regulations. The report and recommendations of the Tampa Bay Regional Planning Council on file in these proceedings recommended approval of the development subject to stated modifications and conditions and the development as described in the application and the presentations made in these proceedings is not consistent with the report and recommendations of said regional planning agency." (Stipulation, Hearing Officer's Exhibit 3) Estech presently operates the Watson and Silver City Mines in southwestern Polk County. The proposed project is to replace depletion of reserves in the 1980's from those mines. The lad in question is located in northeastern Manatee County in a rural agricultural area. Most of the acreage is now being utilized as grazing land for cattle. Approximately 78 percent of the total area is unimproved due to the low productivity of the soils. Most of the tract lies in the watershed of the Manatee River and is bisected by the river's north and east forks. The topography of the land is relatively flat, with over 5,000 acres of native range that was once long-leaf pine flatwoods. However, logging, grazing, and other influences have all but eliminated the pine over-story and impacted adversely on the under-story. The land has been over- grazed, reducing the extent of native forage species while encouraging the growth of wire grass and saw palmetto. About 18 percent of the tract is composed of various types of wetlands, such as swamp forest, marsh and grassy ponds, and an 18 acre cypress dome. The north and east forks of the Manatee River join about four miles southwest of the site, and drain into Lake Manatee approximately eight to ten miles downstream. Lake Manatee drains into the Manatee River and ultimately into the Gulf of Mexico. Lake Manatee is the primary potable water supply serving the majority of the population in Manatee County and a significant portion of Sarasota County. An earthen dam is located at the lake, and the Manatee County water treatment plant is also at that location. (Testimony of Cornwell, Zimmerman, Lincer, Exhibits 4, 6, 12, 39) The mining operation is planned to produce approximately three million tons of phosphate annually for a period of twenty-one years. About 6600 acres of the site are deemed mineable. Estech proposes to use equipment and design generally available and practiced by presently operating mines. The major components of operation are large walking draglines, hydrologic ore transportation via pipeline to a central washer, a feed preparation and flotation plant, wet rock storage and drying, and shipment via rail. Clay and sand wastes will be disposed of initially in separate areas, with subsequent mixing as backfill in reclamation. Two rock dryers are proposed for the facility to reduce moisture in the phosphate rock. A single 480 acre above- ground clay settling area is planned to receive clay wastes during the initial period of operation. The intended waste disposal plan will utilize a sand-clay mix which will be deposited in mining cuts. Water use is designed to divide the needed supply for operations between surface and ground water resources, and to provide for recharge of the Floridan Aquifer. A 200 acre surface water reservoir will be constructed for storage which will decrease ground water use. Reclamation will be accomplished by restructuring and filling of disturbed sites followed by revegetation. The end result is designed to provide improved pasture, marsh and wetland areas, a number of lakes, and a wilderness area. (Exhibits 4, 13, 11) a. In 1978, the Environmental Protection Agency evaluated various impacts of phosphate mining in central Florida, and made recommendations concerning methods of operations by the phosphate industry to minimize and mitigate any adverse impacts upon the region (Areawide EIS) . It was prepared to establish a basis for initiating site-specific environmental impact statements for new source mining in connection with issuance of national pollutant discharge elimination systems (NPDES) permits under the Federal Water Pollution Control Act (PL 92-500). Incident to Petitioner's application for such a permit, a draft environmental statement (Draft EIS) was issued on October 5, 1979. It had primarily been prepared by a third party contractual consultant, Conservation Consultants, Inc., upon the recommendation of Petitioner to the EPA. The consulting firm had previously done consulting work for Petitioner. However, no evidence was presented that the assessments accepted by the EPA in its provisional adoption of the studios contained in the Draft EIS were not impartial. Many of the evaluations of the proposed project which were the subject of testimony by Petitioner's witnesses were based in part upon studies and data contained in the Draft EIS. However, testimony by the individuals who had prepared such data was not presented at the hearing. The Draft EIS document was provisionally received in evidence. It is hereby determined that the document, although not authenticated as provided by Section 90.902(4), Florida Statutes, qualifies as an exception to the hearsay rule under Section 90.803(8) as a public record, and is received under Section 120.58(1)(a), Florida Statutes, as "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." The data compilations contained therein are considered prima facie correct, subject to challenge. Conclusions set forth therein, of course, are not factual matters, and merely are of some persuasive value. b. The Draft EIS for the Estech project made comparisons to the Area- wide EIS recommendations, and found that Estech's proposal deviated from the Area-wide EIS recommendations in two significant areas, i.e., construction of a rock drying facility and mining of a segment of the east fork of the Manatee River. The Draft EIS concluded that the proposed drying facility could be justified for various reasons and proposed to approve that portion of the project. However, the document agreed with the Area-wide EIS that mining should not be conducted in the east fork of the river. The EPA therefore proposed to issue the NPDES permit conditioned upon compliance by Estech with all recommendations contained in the Area-wide EIS except the one related to rock dryers. Based upon the EPA recommendation, Estech has acknowledged that it will not pursue its original intent to mine in the east fork. (Testimony of Davis, Exhibits 8, 11, 47) WATER HYDROLOGY a. The consumptive use permit issued to Petitioner by the Southwest Florida Water Management District (SWFWMD) on September 6, 1978, pursuant to Chapter 373, Florida Statutes, authorizes the average annual withdrawal of 12,960,000 gallons of water per day (gpd) for the purpose of mining and beneficiating approximately 3 million tons per year of phosphate rock. During the first three years after commencing mining operations, water withdrawal is to be from the Floridan Aquifer by means of four production wells and five standby production wells. Thereafter, Estech will divert from the east fork of the Manatee River as will fill or attempt to fill the storage basin to capacity, while maintaining minimal flows downstream. The permit requires Estech to construct a system of connector wells to recharge 3,024,000 gpd (average annual) from the unconfined surficial aquifer and/or secondary artesian aquifer to the Floridan Aquifer prior to the start of withdrawals. Other conditions attached to the permit require water quality analysis of water moving through the system of connector wells, monitoring welts, rainfall recording equipment, pumping tests, and consent from nearby property owners prior to dewatering of mining pits within 700 feet of the property, unless the water table will not be lowered more than three feet. Estech is also required, commencing with the fourth year of mining, and subject to availability of specified quantities of surface water, to (a) limit its ground water withdrawals so as not to lower the potentiometric surface of the aquifer more than five feet at its boundary, and (b) to limit its average annual net ground water withdrawals to 7 million gallons of water per day. SWFWMD found that issuance of the permit for the stated quantities of water will be of reasonable beneficial use as defined in Sections 373.019(5), F.S., consistent with the public interest, and will not interfere with any existing legal use of water. SWFWMD further reserves from use of water by Estech in such locations and quantities as it determines may be required for the protection of fish, wildlife, and the public health and safety. b. Estech has agreed that (a) to promote the maintenance of the 25- year flood plains, water stress caused by pit dewatering shall be limited to only one side of the flood plain at a time, and mining of the opposite side will be delayed until mined portions have been re-created to design elevations, when feasible, and ground water levels have recovered; (b) to construct surface recharge ditches as necessary to minimize ground water table stress adjacent to the flood plains; (c) to cause no disturbance or incompatible land use activity within any such flood plain except where unavoidable; (d) to insure no land use activity which would inhibit native vegetative growth for the flood plain during the mining period, and (e) to conduct a post-reclamation study as to final frequency elevations for the information of governmental agencies. If it is found that peak flows of any drainage basins have been increased over premining conditions, Estech will increase the retention capacity of the recreated land appropriately. After mining is completed, the storage reservoir and control structures will be dedicated by Estech to Manatee County if the county governing body deems the reservoir necessary to the operation of the Manatee County utility system. (Testimony of Davis, Exhibit 6,7,26,47, Stipulation) During normal mining operations, Estech's withdrawal of surface water under its consumptive use permit will reduce the flow into Lake Manatee by about 7.5 millions gallons per day (mgd) . The average annual flow of water into Lake Manatee is about 75 mgd. The Manatee County 4 Water Treatment Plant currently uses 25 mgd. During drought conditions, SWFWMD reserves the right to restrict withdrawals under the consumptive use permit. A "safe reservoir yield" means the available amount of water during the most severe drought conditions. The effect of Estech's withdrawals will reduce the Lake Manatee safe reservoir yield of 29 mgd by .75 million mgd. If the three proposed phosphate mines in the area, i.e., Estech, W. R. Grace, and Beker Phosphate Company, operate simultaneously in the future, it will reduce the flow into Lake Manatee by approximately 9.3 millions gallons per day. Estech's withdrawals of water will impact on the Lake Manatee reservoir only during periods of extreme drought at which time SWFWMD can declare a water shortage and direct cessation or restriction of withdrawals. (Testimony of Wissa, Zimmerman, Exhibit 7) WATER QUALITY a. Surface water quality on the Estech property is generally moderate to poor. It is highly enriched in nutrients, and moderate to poor in terms of color and dissolved oxygen. It is low in dissolved solids and slightly acidic. It had moderate levels of nitrogen, and high levels of iron and fluoride. Most streams on the property have soft water and meet most Class III standards. Water quality is considered "mediocre" from an ecological standpoint due to the low levels of dissolved oxygen. The water in Lake Manatee is similar to that found in the streams on the Estech property. It generally falls into Class IA standards for a potable water supply. The Manatee Water Treatment Plant removes the high color from the water during the process. Approximately 1.43 mgd of water will be discharged into the streams as a result of Estech's mining operations. This amount will constitute approximately one to three percent of the total amount of water flowing into Lake Manatee. Based on data from studies made of other milling operations conducted by Estech, mining discharges should not produce a significant change in the water quality of Lake Manatee. Although there will be an increase in dissolved solids and phosphorus, nitrogen will be decreased. Alkalinity will increase somewhat and this is considered to be beneficial to the Lake Manatee water supply since alkalinity levels in the lake currently are at times below recommended governmental criteria for drinking water. Use of flocculents in Estech's proposed sand-clay process will not adversely affect Lake Manatee water quality because the polymer substance will adsorb onto clay particles and other suspended matter. Polymers degrade over a period of time and the nitrogen in the polymer will not be available for plant growth in the lake. Although higher dissolved solids will cause an increase in hardness of the lake water, it will assist in removing the high color from the water during the treatment process. However, there will be some increase in treatment costs. In the opinion of water quality experts, the effluent discharged from Estech's property will be within the Federal NPDES standards and the state Class III water quality standards. There will be no cumulative impact by other mining operations in the area because Estech will be the only mine to discharge in the Manatee River or its tributaries. Surface water runoff from the site will not be significantly different than it is now, and it will be subject to applicable permit limitations. Deposits of clay in the initial settling area will form a relatively impervious liner and prevent leaching pollutants into ground water. Similar effects will result in the mined out pits which are reclaimed with the proposed sand-clay mixture. The flocculents used in this process will adhere to the clay particles, thus preventing entry into the ground water system. Monitoring of ground water quality will be required by applicable permits. (Testimony of Brezonik, Davis, Bromwell, Lincer, Zimmerman, Exhibits 4, 7, 11, 26-29, 31-34, 48, 57, supplemented by Exhibits 30, 35, 45) RADIATION a. The uranium and radium concentrations in overburden materials at the Estech site are slightly lower than those typically observed in central Florida. The depth of overburden at the site is double that normally found in the central Florida area. The phosphate ore matrix at the site contains about half the radioactivity found in the central Florida matrix. Four samples taken at the site show no evidence of a "leach" zone over the matrix, thus indicating that total radioactivity concentrations in reclaimed areas will be lower at the Estech site than has been experienced in other central Florida phosphate areas. Although ground radiation increases after reclamation, since most of the land area of Florida has extremely low levels of radioactivity in the soil compared to other areas in the nation, the increases in soil radium concentration in reclaimed areas at the site will bring the total gamma ray exposure rate up to approximately the average for the nation, and therefore is not significant in terms of human health. A higher radium concentration is expected in the initial clay settling area which will increase the surface exposure rate by approximately one-half of the rate in other reclaimed areas. Airborne radioactive particulate emissions from the site will consist of dust released from the rock dryers and "fugitive" dust caused by vehicular traffic and other disturbances of surface soil. Both are calculated to produce approximately the same amount of radiation exposure. The projected emissions from the rock dryers will produce a maximum dose of 5.8 millirems per year at the site boundary, as compared to the EPA standard for human health of 1500 millirems per year. The increase in exposure from both sources therefore is relatively insignificant from a human health standpoint. The radium 226 that would be added to surface soils by deposition from rock dryer emissions during the contemplated 21 years of mining activities' will increase the soil radioactivity concentration around the site from about 50 percent to less than 51 percent of the typical soils in the nation, and therefore such change would not be statistically measurable or significant. Existing concentrations of radium in surface waters at the Estech site are within the normal range of surface waters elsewhere in the nation. Mining activities will not cause any appreciable difference in radium concentrations in ground or surface waters. Although radium 226 concentrations in surface waters off-site may be elevated to some degree after reclamation, the final concentration will be much less than the EPA drinking water standard of 5 pico curies per liter. Radium concentrations in the soil of reclaimed lands will be in a normal range and not significantly different from those existing prior to mining operations. Therefore, such concentrations in food products grown in the soil and meat produced from animals who graze in the area, or in byproducts such as milk, will not be increased. Such concentrations could decrease because plants discriminate against the uptake of radium if sufficient calcium is available, as will be the case in areas reclaimed with the sand-clay mixture. Concentrations of radium in the initial clay settling area will be considerably larger than that of the other reclaimed areas and therefore will show similar increases in food products in that area. However, the concentrations should not exceed the EPA standard of 5 pico curies of radium per liter. Therefore, food products grown on the site after reclamation will present no significant radiological changes from normal dietary contributions. A preliminary study conducted in lakes located on reclaimed phosphate mining land in Polk County produced preliminary data to show that the accumulation of radiation in fish at those locations is greater than that found in fish at Lake Manatee. However, as heretofore found, the ore matrix at the Estech site contains only about half the radioactivity found in the matrix in other phosphate areas of Central Florida. Most likely, the amount of radiation found in fish in Lake Manatee will approximate the amount for fish in future lakes on the Estech site because phosphatic clays were removed to construct the lake dam and matrix is exposed at the lake bottom. The radioactivity levels found in the Lake Manatee fish are relatively low, and since radiation is concentrated in the bones which are seldom consumed, there would be no significant adverse health impacts to humans who ate fish from reclaimed lakes at Estech's site. Radioactive materials are absorbed to any clay particles which might be discharged during mining operations and normally are not "stripped" from such particles until it reaches a salt water body. The normal water treatment process used at the Manatee County Water Treatment Plant would remove most of such clays from the water and thus dilute any residual radioactivity concentrations. The reclaimed lands will have different radiological characteristics than the land before mining. These primarily are elevation of possible radiation exposure in any future residential structures and uptake of radionuclides into agricultural products. Some 68 percent of the land is expected to be improved pasture and a small amount will be used for citrus and row crops after the cessation of mining activities. The abundance of clay in the surface soil will produce a "discrimination" against uptake of radium by crops. The return or replacement of low activity top soil to reclaimed areas would substantially reduce potential radiation impacts. Estech does not plan to replace soil over reclaimed areas except on those where excessive radiation is found to be present. There is no state regulatory requirement for replacement of top soil in such areas at the present time. The final clay settling areas when returned to any land use will be most beneficially affected by returned top soil from the standpoint of residual radiation. However the return of top soil to all areas would present an excessively high cost-benefit ratio in general due to the relatively low degree of matrix radioactivity. In addition, since the advisability of replacement of top soil would depend on site specific data, in some instances return of the original soil could increase the uptake of radium in crops and make little or no difference in other radioactivity areas such as radon exposure in homes. Radon-222 flux from the soil surface will be increased due to the redistribution of radium-226 in the reclaimed lands. The elevation of outdoor airborne radon-226 will not be significant. Radon exposure consists of gas emerging from ground which contains radium during the process of radium decay. No problem is ordinarily presented unless such gas is in a confined area, such as migration to a poorly ventilated house. If inhaled, it can irradiate the bronchial lining and lead to possible health problems such as lung cancer. The only area at the Estech site where it is expected that radon levels will exceed EPA standards is the initial clay settling area. Accordingly, residential development should not be conducted on that reclaimed area after termination of mining activity. This area is presently planned to be used only for pasture purposes, and it is unlikely that it would ever be suitable for housing purposes due to lack of support of the residual ground structure. (Testimony of Morton (Exhibit 1), Shiager, Bromwell, Upchurch, Livingston, Gamble, Exhibits 4, 7, 11, 49, 52-53) Estech has agreed to establish an air monitoring program, to include monitoring for all sources of radiation associated with any of its emissions, including levels of radium 226. It also has agreed to provide a detailed radiological analysis of the reclaimed land to the Manatee County Health Department upon completion of reclamation. If an area has unacceptable radiation levels, Estech agrees to cover the area with lower value materials such as may be found in over-burden or sand tailings and clay by-products. (Testimony of Davis, Exhibit 47) AIR QUALITY a. Air quality considerations include emissions from Estech's proposed rock dryers and fugitive dust. The proposed dryer system consists of two fluidized bed rock dryers for drying phosphate rock, pebble and concentrate product, using number 6 fuel oil limited to one percent sulphur content. Control devices will consist of two wet venturiadsorber scrubber systems designed to remove 99.8 percent of particulate matter and 96.5 percent of sulphur dioxide from stack emissions. b. Computer "modeling", using conservative assumptions, predicts that emissions from the rock dryer pollution control systems will be in compliance with local, state, and federal regulations, as well as meet the requirement of a Best Available Control Technology (BACT) determination, and all other applicable air pollution regulations, including prevention of significant deterioration (psd) . On May 19, 1980, the Department of Environmental Regulation issued a construction permit for the two rock dryers to Estech pursuant to Chapter 403, Florida Statutes, and therein determined the proposed system was Best Available Control Technology. Conditions to the permit require that emissions tests be conducted for determination of compliance with applicable state air quality rules prior to application for an operating permit. (Testimony of Sholtes, Exhibits 1, 4, 7, 14, 43, 55) Computer modeling of fugitive emissions at the site created by road traffic and the like would result in approximately the same impact as emissions from the rock dryers. Cumulative emissions from existing and potential air pollution sources, including consideration of eight possible future rock dryers in the vicinity of Manatee County shows that there would be a very minor impact on the Manatee County area from an air quality standpoint. (Testimony of Sholtes, Exhibit 43) The 1978 EPA Area-wide Environmental Impact Statement for the Central Florida Phosphate Industry recommended that rock drying processing at beneficiation plants be eliminated and that wet rock be transported to chemical plants. The recommendation was based on consideration of greater allowable source emission rates than are now permitted by federal regulations. The EPA Draft Environmental Impact Statement prepared in connection with the Estech project pointed out this distinction, and concluded that the objective of the Area-wide EIS to protect air quality would be attained by the current system of air quality controls. The Draft EIS also found that use of the proposed rock dryers was dictated by market conditions which required the shipment of dry rock to chemical plants at other locations. Although Estech has an existing rock dryer at its Silver City Mine in Polk County, the facility there is older, less fuel efficient and does not meet current control criteria required of new facilities. Estech has reduced the originally contemplated amount of phosphate rock to be dried at the proposed facility from 3 million tons to 2,350,000 tons per year, due to the fact that it can now sell wet rock to various purchasers. (Testimony of Cape, Davis, Exhibits 8, 11) Although Sarasota County has concerns about the possible unavailability of one percent sulphur fuel in the future, Estech is limited to that sulphur content by DER permit conditions, as well as by Manatee County ordinance. (Testimony of Klier, Sholtes, Exhibits 55, 57) The quality of air in Manatee and Sarasota Counties currently is relatively good. The older, retired individuals who reside in Sarasota County greatly exceed the national average of that age category, with a much higher incidence of cancer and respiratory disease. Current governmental criteria for air quality greatly exceed present Sarasota County levels and do not measure certain pollutants such as fugitive dust and radionuclides. Radionuclides emitted as a result of phosphate mining recently have been added to the list of hazardous air pollutants under the Federal Clean Air Act. However, Federal Regulations have not been issued to establish standards for such emissions. (Testimony of Klier, Exhibits 44, 57) WASTE DISPOSAL a. The beneficiation of the phosphate ore will generate two solid waste products consisting of clay or "slimes" and sand "tailings." Traditionally, the two waste materials have been transported to separate disposal areas; i.e., clays have been impounded behind earthen dams constructed around natural ground or mined out areas, and sand tailings have been disposed of in mined out pits or, in some cases, in above-ground piles. Estech plans to use a somewhat new waste disposal technique by placing a sand-clay mixture in mined-out pits. In order to achieve a proper mixture, the clays will be treated with chemical flocculants to enhance their settling rate. The method will mix the sand and clay in the approximate ratio of 2.5 to 1 by weight and will be placed in waste disposal areas enclosed by earthen levees or dikes averaging fourteen feet in height. The enclosed areas will be filled to an average height of nine feet above natural grade, thereby leaving a free-board of five feet to the top of the dike. It is necessary to fill above ground to some extent to allow for subsidence of the material as it dewaters and consolidates. This system is designed to enhance water recovery efficiency and provide reclaimed land with a better agricultural potential at an earlier date than would normally be the case. Over 5,000 acres are planned for sand-clay disposal, all but 200 acres of which will be in mined-out areas Since no mined out area is available initially, an earthen dam will be constructed on unmined ground covering approximately 480 acres as an initial clay settling area. The dam structure is proposed to be about 200 feet wide and thirty feet high with a circumference of approximately four miles. In the past, the practice of disposing of clay wastes in above- ground areas raised the distinct possibility of potential dam failure with consequent release of the clay slimes. Prior to 1972, a large number of earthen phosphate dams in Florida failed due to inadequate design or construction. Following several serious dam failures in Florida, including the Cities Service Dam on the Peace River in 1971, minimum requirements for construction of such earthen dams were promulgated in Chapter 17-9, Florida Administrative Code. Since that time, no earthen dam constructed in Florida according to the regulatory requirements has failed. The state regulations require extensive engineering, design and monitoring to minimize the risk of dam failure. The design for the proposed Estech dam is based on extensive field investigation of soil conditions, and geological and hydrological analysis of the site. Soil borings show that there would be an adequate foundation for the dam and that "sinkholes" do not exist in the area. Soil for construction of the dam will be obtained in the immediate site area. The materials used in constructing the facility will be "zoned" in a manner designed to control seepage. Other seepage control devices will include internal gravel drains surrounding a collection pipe to lower the line of seepage through the dam and to prevent seepage from breaking out on the downstream slope. There will be three decant structures whose outlets discharge into a return water ditch along three sides of the embankment, with a surface drainage ditch on the other side to collect runoff. Although a layer of hardpan sub-soil is discontinuous and only extends for about 60 to 70 percent of the site circumference, such discontinuity is not considered critical due to other protections incorporated into the design of the structure. As the waste clay is deposited into the settling area, it will begin to consolidate with consequent decrease of permeability and form a sealer or liner along the bottom of the settling area, thus reducing the possibility of a "piping" failure through circular seepage. The possibility of dam failure due to "over-topping" by reason of excessive rainfall or wind and wave action occasioned during hurricane conditions is extremely remote. Dam design provides for a five foot freeboard which can be increased during a major storm by reducing the water level through spillway structures. Wooden booms anchored along the shoreline and vegetative growth will reduce wave action to some extent. During normal mining operations, there will be only about two feet of water over the clays in the settling area, and maximum height of storm waves would not exceed two feet. During the critical initial period, when a maximum of some twenty feet of water would be in the settling area, there would remain ten feet of freeboard to reduce the possibility of over-topping. The proposed Estech dam was "over-designed" to exceed the requirements of Chapter 17-9. Conservative assumptions were made that only water would be in the settling area, and that no hardpan would be present at the site, or clay in the settling area to seal the foundation. Expert testimony established that the dam design exceeds the requirements of state regulations and that the probability of a dam failure is extremely low because the design engineers addressed the most common causes of dam failures, which include over- topping, piping, sinkholes, slope failure, and earthquakes. The evidence shows that there is little likelihood of failure due to any of those causes. This finding is based not only on the fact that the dam design meets or exceeds the specifications of Chapter 17-9 as to methods of construction and inspection prior and subsequent to operation, but also because of Estech's commitment to "proof test" the strength of the dam with clear water prior to the deposition of clay wastes to monitor piezometric levels within the dam and otherwise determine if any potential problems exist during the critical initial period of operation. Although state regulations require that a registered engineer inspect each active dam annually, Estech will insure that inspection by the design engineer will be made on a monthly basis during the first year of active operations, together with inspection by company trained personnel at least three times a day during that period. (Testimony of Wissa, Dromwell, Halter, Exhibit 1, 3, 7, 11, 17, 21-24, 36-37, 59-61, 63) Due to the fact that the Estech dam will be located in the Manatee River watershed, there would be a serious adverse impact upon the Lake Manatee reservoir in the event of dam failure at a time when the clay settling area primarily contains waste clays. The most dangerous period is during initial filling operations and, since Estech will "proof test" the dam with clear water initially, a failure at that state would be relatively minor since the higher color and suspended solids contained in the discharge would be greatly diluted. However, if a failure occurred at a time the dam contained primarily waste clays, the reservoir capacity and safe reservoir yield of Lake Manatee would be substantially reduced, and the levels of suspended solids in the reservoir would be greatly increased. Approximately six to eight thousand acre feet of clay "slimes" in excess of a billion gallons would be deposited in the reservoir by a dam failure. Although the slimes would most probably-not reach the Lake Manatee dam, if an excessive amount of suspended solids reached the dam intake structure, it could well result in a cessation of water treatment plant operation for a period of seven to ten days. The clay wastes reaching the lake would coat the shoreline and therefore cause erosion and re-suspension by wave action and rain. It would be a chronic problem for the water treatment plant and require considerable additional expenditure of funds. Such a long-term problem would require time-consuming and expensive redesign of the plant with reduced output of drinking water during that period. The release of dilute clay as a result of a dam failure would cause initial turbidity of stream waters resulting in near total mortality of all aquatic animal life. However, nearly full recovery should occur in several years. Turbidities would decrease as the clay settled into the depths of Lake Manatee, but chronic turbidity would continue for months or years. Much of the non-woody vegetation in the upper Manatee River areas would be killed directly or coated with clay residues, but this loss would have no long-term significance. Trees and woody shrubs probably would not be significantly impacted, but would be stressed. Clays would be retained in the lake on a long-term basis unless removed by dredging at great expense. An initial severe impact to the fish population of the lake would be temporary, but fishing would not return to prespill levels. The recreational use of the lake would be impaired significantly and its ecological character would be altered for many years. Dam failure would not significantly affect the radioactivity concentrations in Lake Manatee or cause the water in the lake to violate the EPA drinking water standard for radium, since most of the radioactive materials would adhere to the clays which are subject to removal by the water treatment process. (Testimony of Wissa, Brezonik, Bromwoll, Cornwell, Shiager, Fishkind, Upchurch, Lincer, Zimmerman, Balter, Exhibits 11, 25, 38-39, 57) a. In view of concerns raised about the possibility of a dam failure, Estech considered several alternatives to an above-ground initial clay settling area. The cost of constructing the proposed above-ground impoundment is approximately 3.6 million dollars. If a below-grade settling area were to be constructed, it would eliminate the possibility of release of clay wastes. However, the clays in a below-grade area would not consolidate as easily as in a conventional settling area, and thus reclamation would be delayed for a longer period. The cost of constructing a below-grade settling pond would be almost thirty million dollars. The construction of a double dam around the initial settling area would cost over fifteen million dollars and preclude the mining of some 640,000 tons of phosphate ore with an inground value of nearly one million dollars. The second dam also would be subject to the same possibility of failure as the initial dam. The final alternative considered by Estech was one which would use a sand-clay mixture in the above-ground settling area rather than clay wastes only. If a dam failure occurred with such a mixture in the settling area, the impacts on Lake Manatee would be reduced considerably because the thicker sand- clay mixture would not reach the lake. Although turbid water would reach Lake Manatee in the initial surge, with consequent higher suspended solids, there would be no great impact on the ability of the water treatment plant to provide finished drinking water, although the cost of treatment would be somewhat higher. Release of the sand-clay mix would have only a negligible impact on Lake Manatee, but a major impact would result in the upper reach of the north fork of the Manatee River. The mixture would move into the north fork and proceed down stream until reaching the east fork tributary. Most vegetation, including trees, would be killed or severely stressed in the upper reach. Much of the sand-clay would be colonized by upland vegetation, but erosion and sedimentation would be slow and continue until a new channel and associated flood plain developed over a long period of time. A sand-clay mix in the initial settling area would permit more rapid reclamation, but it is necessary to use chemical flocculants in order to assist in achieving a satisfactory mix of materials. The cost of flocculents constitute the significant additional costs of some seven million dollars more than the proposed plan of constructing an above-grade settling area filled with dilute clays. A consulting engineer employed by Estech is of the opinion that the additional margin of safety by utilizing the sand-clay mixture justifies the additional expenditure, but Estech's design engineers and management personnel are of the opinion that the remote possibility of dam failure does not justify the additional cost. (Testimony of Wissa, Fishkind, Bromwell, Cornwell, Davis, Cape, Exhibits 7, 18-19, 39) OTHER ENVIRONMENTAL CONSIDERATIONS AND RECLAMATION PLAN a. About 72 percent of the 10,394 acre mine site will be "disturbed" during the course of mining operations. An average of 325 acres per year will be mined during the 21 years of mining. Some 690 acres will be used for the plant site, the initial clay settling area, and other support functions. About 11 to 13 percent of the property will be disrupted yearly. Each mining area will require about six years to complete land clearing, mining, and reclamation. Some 5700 acres of native range which once were pine flatwoods will be replaced primarily with improved pasture during reclamation. About 830 acres of this area will not be mined, but will be planted with pine seedlings to recreate a pine flatwoods condition. Twenty-three acres of sand-pine scrub will be mined and reclaimed to agriculture, but a 50 acre parcel will be preserved. Over 400 acres of xeric oak will be mined, but some 90 acres will be preserved. There will be an additional 58 acres of mixed forest land along established drainage swales in the reclaimed pastureland which should encourage wildlife movement and preservation. The only existing cypress swamp covers 18 acres and will be preserved. About 384 acres of lakes will be created with littoral zone wetlands along their edge as a result of mining operations and reclamation. No lakes are presently located on the Estech site. The reclamation plan provides for the most important and sensitive wetland areas on the site to be preserved, and it is planned to create a 100- acre wilderness area near the cypress head. The Estech property includes 1837 acres of wetlands which comprise about 18 percent of the site. These include 1219 acres of swamp forest, 600 acres of marsh ponds, and the 18 acre cypress dome. Mining will temporarily remove one third of the swamp forest and about 60 percent of the marshes. About 1064 acres (58 percent) will not be mined, and 1046 acres will be restored. The reclamation plan will result in an overall 15 percent increase in wetland acreage over pre-mining conditions. Disruption of these areas is limited as to types of wetlands as recommended in the EPA Area- wide EIS. Under this system, the most ecologically sensitive "Category I" wetlands must be preserved. "Category II" wetlands are those which may be mined if an adequate restoration program is proposed. This is the acreage for which Estech has prepared its restoration program. "Category III" wetlands, of which only 174 acres are located on the Estech site, do not require protection. Although Estech's proposed restoration of riverine hardwood swamps involves a new concept of phosphate mining reclamation, the reclamation plan and commitment by Estech includes provision for demonstration of its ability to successfully recreate those areas prior to mining. If the pilot project or actual re- creation of the hardwood swamps during a five-year project period is unsuccessful, these areas will not be mined. Present wildlife use of the rangeland at the Estech site is low due to activities such as heavy grazing and hunting. Although there will be migration of wildlife species during mining activities, the sequential pattern of mining and reclamation should provide sufficient opportunity for wildlife to relocate as suitable habitat becomes available. The proposed preservation of wetlands and creation of more wooded areas, marshes and lakes should result in potential positive long-term effects on many of the species in the area. Two threatened wildlife species that could be adversely impacted by the mining operations are the American alligator and eastern indigo snake. Although the alligator will decline somewhat during such operations, it is expected to increase above present levels with the addition of the lakes and increase in other wetlands when reclamation is completed. The eastern indigo snake will decline in numbers with the destruction of swamps and upland habitat, but should reach their former numbers after. reclamation. The United States Fish and Wildlife Service has recommended that efforts be made by Estech to have indigo snakes recovered from the work area for relocation. Estech will utilize double-walled pipelines with frequent inspections and mechanical safeguards to limit any damage that might occur in the event of a pipeline break in wetland areas. In addition, it will take numerous precautions concerning dragline crossings of wetland areas to prevent excessive damage and to restore such sites. As heretofore found, Estech does not plan to replace the topsoil in the majority of the reclaimed areas. It considers that a sand-clay mixture for reclamation will result in increase of soil productivity without the necessity of replacing the former topsoil. Replacement would be extremely expensive and would be of dubious value in view of the low quality of topsoil at the mine site. The reclaimed soils will be equal acid in many cases superior to the native soils in terms of fertility, moisture holding capacity, and nutrient retention, although they will have an initially poor structure in the top layer due to the absence of organic matter and soil biota. However, forage plantings on the improved pastures will encourage the development of such organic matter and, as it accumulates, natural vegetation will develop upon the sand-clay soils. Organic topsoil from wetlands will be placed in those areas when restored, as found necessary. Soil organisms perform useful functions that facilitate nutrient uptake and are important in any natural system. Most of such biota are lost during mining. However, barren soils are often colonized by invaders from adjacent undisturbed areas. Mycorrhizae and other beneficial organisms can be introduced through vectors, air, and from preserved wetlands. In addition, transplanting of trees and direct innoculation may accelerate the introduction of such organisms. Although use of the sand-clay mix for reclamation is a new technology, there have been prior successful tests of such a system. Estech will have to comply with reclamation standards of the Department of Natural Resources and other governmental requirements. If the system proves to be unworkable, adjustments can be made such as the ratio of sand to clay to facilitate improved drainage and plant growth. (Testimony of Cornwell, Davis, Cape, Bromwell, Lincer, Gamble, Exhibits 3, 4, 6-7, 11, 15-16, 39-42, 47, 57, supplemented by Exhibits 56, 58) ECONOMICS, HOUSING, AND TRANSPORTATION a. Estech's mining operation is intended to replace existing operations in Polk County. The proposed mining activity will cover an approximate thirty-year time period before reclamation is completed. Annual operation expenses are estimated at approximately $30,000,000.00, and total expenditures for the proposed mining activity will reach almost $650,000,000.00 in capital and operating costs. There will be some 325 permanent employees during the course of mining operations, the majority of whom will probably come from the existing Estech labor force in Polk County. Since most of those employees are expected to commute from present residences in the region, there should be minimal impact on housing facilities. A "multiplier" effect of Estech's expenditures and employment will have a greater resulting economic impact in the region. Some of Estech's employees and contractor personnel are expected to reside in Manatee county with consequent payroll income. A portion of Estech's maintenance and supply needs will undoubtedly be obtained from local businessmen in the county. The proposed project should have only a minimal impact on local governmental services since it is located in a rural area and will be self-sufficient as to water, sewer, fire and police protection. Local and state tax revenues will be a direct effect of the new mining activity. Substantial payments by Estech of state sales tax, severance tax, county ad valorem tax, and corporate income tax will produce substantial benefit to government. The Estech project should have only minimal impact on the road network because it plans to ship the phosphate product by rail rather than truck, except during extraordinary conditions such as a rail strike. In such a situation, Estech has agreed to notify the Manatee County engineer of its use of county roads so that a reasonable trucking schedule may be established to minimize conflict with peak traffic patterns. Although rail service is not presently available, Estech has a letter of commitment from a railroad line to provide necessary facilities for movement of phosphate rock. Estech has agreed not to commence mining operations until rail service is provided. Estech has also agreed to make necessary road improvement and maintain and repair any damage to county roads during the course of mining operations. (Testimony of Cape, Davis, Fishkind, Exhibits 4, 6, 7, 11, 47, 54) PUBLIC WITNESSES Seven public witnesses testified at the original hearings before Manatee County in January 1979, and six witnesses, including one who had appeared at the County hearing, testified at the final hearing. Additionally, a group of local citizens signed a petition which set forth various environmental concerns as to the proposed project and recommended denial of the application for development approval. Although the majority of the public witnesses were opposed to phosphate mining and environmental consequences thereof, several of the witnesses were of the opposite view and believed that phosphate mining could be conducted without adverse impacts on the environment. (Testimony of Fernald, Rain, King, Kitzmiller, Haley, Burlingame, Exhibit 2 (Testimony of Rains, Werick, Quy, Doozburg, H. Greer, M. Greer, Swizzik), 10, 50)
Recommendation That the Florida Land and Water Adjudicatory Commission issue a decision granting permission to Estech General Chemicals Corporation to develop its property located in Manatee County in the manner provided in the application for development approval, and subject to the conditions attached hereto at Exhibit 13, pursuant to the provisions of Chapter 380, Florida Statutes. DONE and ENTERED this 31st day of July in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Bob Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter State Treasurer State of Florida The Capitol Tallahassee, Florida 32301 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32301 Department of Community Affairs C/O C. Laurence Keesey, Esquire Room 204, Carlton Building Tallahassee, Florida 32301 Department of Administration Mr. Nevin Smith, Secretary 435 Carlton Building Tallahassee, Florida 32301 Wade L. Hopping, Esquire Hopping, Boyd, Green and Sams Post Office Box 6526 Tallahassee, Florida 32301 Roger Tucker, Esquire Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702 Richard F. Nelson, Esquire 2070 Ringling Boulevard Post Office Box 2524 Sarasota, Florida 33578 Bill Fay, Jr., Esquire 1400 4th Avenue West Post Office Box 959 Bradenton, Florida 33505 Baya Harrison, III, Esquire 325 North Calhoun Street Tallahassee, Florida 32301 Exhibit A * NOTE: Exhibit A, LIST OF EXHIBITS, is not a part of this ACCESS document. Exhibit A is available for review from the Division's Clerk's Office. Exhibit B
Findings Of Fact Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section 386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner. DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida. DONALD D. CONN 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 19th day of February 1987. APPENDIX (DOAH Case No. 86-4094) Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Rejected in Findings of Fact 4, 5. COPIES FURNISHED: James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800 St. Petersburg, Florida 33701 Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
Findings Of Fact By Pre-Hearing Stipulation, the parties agreed, and it is so found, that the District is a public corporation in Florida under Chapter 373, Florida Statutes, and Chapter 40E, F.A.C.. It exists as a multipurpose water management district with its principal office in West Palm Beach. Respondent James P. McCarthy and his wife, Rebecca, reside at 6017 Southern Road South in West Palm Beach. This property is located within Section 3, Township 44 South, Range 42 East, in Palm Beach County. On December 31, 1991, the District issued a Notice of Violation to the Respondent notifying him that his 2 inch pvc irrigation line, exposed near the top of the bank due to erosion, constituted an encroachment on the District's right-of-way adjacent to Canal 51 at the rear of his property. The line was not removed. On April 9, 1992, the District issued its Second Notice of Violation to Respondent McCarthy assessing a civil penalty in the ultimate amount of $560.00 for the same alleged encroachment, and on April 24, 1992, Mr. McCarthy filed his Petition for Formal Hearing to contest that action. Mr. McCarthy does not contest the fact that the line exists as indicated by the District but debates the allegation that it constitutes an encroachment violation requiring a permit, contending that the District has failed to properly complete the work it promised to do on his property, the completion of which is a condition precedent to the requirement for a permit. The South Florida Water Management District owns a right-of-way located on the south bank adjacent to C-51 canal in West Palm Beach, and the McCarthy's property is adjacent to that right-of-way. They have constructed a 1 1/2 inch PVC lawn irrigation line from the sprinkler system in their backyard beneath and across the District's right-of-way into the canal. According to Douglas Sykes, the District's senior engineering field representative in the area, who inspected the McCarthy's pipe line subsequent to the completion of the Corps' work, the line meets the District's standards and is permittable. All that is required is for McCarthy to make the requisite application and pay the permit fee. On April 17, 1989, the McCarthys and the District entered into a written Settlement Agreement by which both granted deeds to each other for portions of the land adjacent to the canal for the payment of the sum of $11,000.00, plus attorneys fees, to be paid to the McCarthys. This agreement did not, however, address either the slope or grade of the canal bank adjacent to the McCarthy property. The bank slope was to be constructed by the U.S. Army Corps of Engineers in accordance with their proposed constructions plans. The agreement did, however, call for the McCarthys to obtain an irrigation permit pursuant to District criteria "after completion of construction." The Director of the District's Right-of-Way Division, responsible for the enforcement of the occupancy regulations in the right-of-way, considered the canal complete when the Corps ceased its construction activities and removed its equipment. This was done before September, 1991. The Corps notified its contractor that it accepted the C-51 project as complete on March 20, 1991. Mr. Sykes also inspected the area subsequent to the departure of the Corps' contractor. He found the work to be consistent with the District requirements, though as late as June, 1992, some additional work was being done by the District on property to the east of the McCarthy property. There is some indication that when the District sought permission to cross McCarthy's property line to access that work area, permission was denied. The District crossed McCarthy's property anyway, causing some minor damage. This work has now ceased. The District employee who negotiated the settlement agreement with the McCarthys intended for the term "completion of construction" to mean the moment when the Corps relinquished its control of the right-of-way to the District. This was done on September 4, 1991. Other landowners applied for and received permits for irrigation lines when the Corps' contractor left the site. As McCarthy tells it, in early 1990, after the settlement agreement was signed, the heavy construction was begun on the canal project and the trees were removed. A roadway was put in and the contractor began to install a large earthenware berm on the property. After some of it was done, he stopped the workers and found that the berm should go on another property. It was removed and after that, no other work was done. Mr. McCarthy contends the agreed-upon canal bank was not properly constructed by the Corps. He claims the Corps' contractor left the canal bank without the required grading and in a rough state without sod. This is, supposedly, the only parcel that was not graded properly or sodded. He was left with a 1 1/2 :1 slope - very steep, and he complained about this in writing to the District because it was not what he claims they had all agreed upon. Mr. Shattner, the District's Director of Construction Management, indicates that regardless of what drawing is examined, the slope is no more gentle than 2:1. Throughout 1990 and 1991, Mr. McCarthy alleges, he repeatedly advised the District that it had not lived up to their agreement but never got an answer. The agreement does not define the slope to be used except as it referred to a survey which was supposedly attached to the agreement. Towards the end of 1991, Mrs. McCarthy wrote to Mr. Swartz of the District about the work but received no answer. She then called the office of Mr. Creel, the District Executive Director, to complain. On December 19, 1991, someone called back and agreed to send someone out to look at the berm. No one came, however, and the next contact with the District was the violation letter of December 31, 1991. Mr. McCarthy has repeatedly taken the position with the District that it has not lived up to the terms of its agreement with him and he will not apply for a permit for the line until the construction is completed properly. The current line complained of by the District is temporary and will be destroyed by the corrective construction. The residue of the Corps' work remaining on his property is, he complains, unsafe. It does not conform to either the county code or the District's own manual which calls for a 4:1 ratio.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued dismissing the assessment of the currently assessed $560.00 civil penalty against the Respondents herein, James and Rebecca McCarthy, but requiring them to apply within 30 days from the date of that Order for a permit to construct and maintain an irrigation pipeline across the District's right-of way for Canal C-51 at the rear of their property. RECOMMENDED this 30th day of December, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 30th day of December, 1992. COPIES FURNISHED: Scott A. Glazier, Esquire Toni M. Leidy, Esquire South Florida Water Management District P.O. Box 24680 West Palm Beach, Florida 33416-4680 James P. and Rebecca R. McCarthy 6017 Southern Boulevard South West Palm Beach, Florida 33415 Tilford C. Creel Executive Director South Florida Water Management District P.O. Box 24680 West Palm Beach, Florida 33416
The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, 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 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
