The Issue The issues are whether Georgia-Pacific Corporation is entitled to the issuance of an industrial wastewater facility permit under the National Pollutant Discharge Elimination System program that would authorize it to discharge industrial wastewater to the St. Johns River in Putnam County, Florida, and whether Georgia-Pacific Corporation has met the statutory criteria for a related administrative order for the interim discharge to Rice Creek in Putnam County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Respondent, Department of Environmental Protection (Department), is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of wastes to waters of the State. Under approval from the United States Environmental Protection Agency (EPA), the Department administers the National Pollutant Discharge Elimination System (NPDES) permitting program in the State. The Department also enforces specific water quality standards that have to be achieved in order to ensure protection of the designated uses of surface waters in the State. Respondent, Georgia-Pacific Corporation (Georgia- Pacific), owns and operates a bleached and unbleached kraft pulp and paper mill in Putnam County, Florida. The plant presently discharges treated wastewater to Rice Creek, a Class III water of the State, and a tributary of the St. Johns River. Petitioner, Putnam County Environmental Council, Inc. (PCEC), alleged in the Petition for Formal Administrative Hearing (Petition) that it is a non-profit Florida corporation headquartered in Palatka, Florida. However, other than a statement by one witness that PCEC was incorporated on an undisclosed date prior to the hearing, PCEC failed to present any evidence to establish its corporate status or residency in the State of Florida. According to the same witness, the organization was created in an unincorporated status in 1991, and it currently has 65 members who use and enjoy the St. Johns River for recreational purposes. Petitioner, Stewards of the St. Johns River, Inc. (SSJR), also alleged in the Petition that it is a non-profit Florida corporation with headquarters in Jacksonville, Florida. Like PCEC, SSJR failed to prove its corporate status or residency in the State of Florida. Although the number of members in SSJR is unknown, "many" of its members are boaters and "most" live along the St. Johns River. Petitioner, Linda Young, is Southeast Regional Coordinator for the Clean Water Network and a citizen of the State of Florida. As such, she has standing to "intervene" in this action under Section 403.412(5), Florida Statutes. In this complex case, the parties have presented extensive and conflicting evidence regarding the factual issues raised by the pleadings. In resolving the numerous conflicts in that testimony, the undersigned has accepted the more credible and persuasive evidence, as set forth in the findings below. The Applicant's Mill Operation Georgia-Pacific's Palatka mill was built in the 1940's before the establishment of Department water quality standards and classifications. Because of the nature of the pulping process, the mill has not been able to fully meet water quality standards in Rice Creek because of poor dilution. Georgia-Pacific receives wood chips from a sister facility and purchases residual chips from local wood products facilities. Those chips are separated into pine and hardwood, conveyed into the pulp processing facility, and loaded into digesters, that is, industrial-sized pressure cookers, which cook the chips for several hours. Pulp from the digesters goes to the brown kraft, bleached kraft, and tissue manufacturing facilities. Water in the manufacturing process is used, re-used, and recirculated until it cannot be used again, at which point it is conveyed into a primary wastewater clarifier, which is used to settle out fiber and other settleable solids. Additional wastewater sources are collected in sumps located in the facility, which are discharged into the primary clarifier. The underflow from the primary clarifier flows into a solids settling area (sludge pond) while the water from the primary clarifier passes into a secondary treatment system. The secondary treatment system uses aerobic and facultative biological treatment. Stormwater at the facility also flows into the treatment system. The secondary treatment system consists of four ponds in series: Pond 1, 485 acres, aerated with over 1600 horsepower of aeration; Pond 2, 175 acres, with 140 horsepower of aeration; Pond 3, 130 acres, with 120 horsepower of aeration; and Pond 4, 100 acres. Pond 4 is a quiescent basin, used to settle solids in the wastewater before discharge. The treatment system has a very long hydraulic detention time; once water enters the system, it remains there for 50 to 60 days. After treatment, a side stream of roughly 8,000,000 gallons per day of treated effluent is withdrawn, oxygenated with liquid oxygen, and discharged at two locations in Rice Creek: 3.4 miles upstream from the St. Johns River (Outfall D-001); and 2.4 miles upstream from the St. Johns River (Outfall D-002). Under low flow conditions, effluent from the Georgia-Pacific mill dominates the flow in Rice Creek. The Application Process Rice Creek is a small tributary of the St. Johns River, particularly in its upper reaches where Georgia- Pacific's effluent discharge occurs. Over the years, there have been exceedances of certain Class III water quality standards including specific conductance, color, and periodically whole effluent toxicity. Because of this, and during the permit review process, the Department began considering alternatives for mitigating or eliminating those existing concerns with the facility's discharge. In October 1992, Georgia-Pacific applied to the Department for the renewal of its existing wastewater discharge permit. In June 1994, Georgia-Pacific submitted an application to the Department for the construction and operation of an industrial wastewater treatment and disposal system. This application included a request to relocate Georgia-Pacific’s existing discharge to the St. Johns River. Because Georgia-Pacific submitted timely permit applications, it is authorized to continue operations based on an "administratively extended permit." In June 1994, Georgia-Pacific also applied to the EPA for a permit under the NPDES program. In October 1994, the EPA acknowledged receipt of a timely application for the renewal of Georgia-Pacific's existing NPDES permit, advising Georgia-Pacific by letter that its permit was automatically extended and that continued operation was authorized in accordance with the existing permit and 5 U.S.C. Section 558(c). On May 24, 1995, the Department advised Georgia- Pacific that the EPA had granted the Department the authority to administer the NPDES program and that its state permit and existing NPDES permit were deemed combined into one order. In response to a Department request, in November 1995, Georgia-Pacific submitted to the Department an antidegradation review for the relocation of its discharge. After Georgia-Pacific applied to the Department for a renewal of its NPDES permit, the Department directed Georgia-Pacific to provide alternatives that would ensure compliance with water quality standards. Georgia-Pacific submitted a proposal to construct a pipeline that would enable it to discharge its effluent to the middle of the St. Johns River. Under that proposal, Georgia-Pacific would achieve compliance with water quality standards as a result of greater dilution in the St. Johns River. Based on a review of Georgia-Pacific's submittal, the Department determined that Georgia-Pacific could in fact achieve water quality standards by constructing a pipeline to the St. Johns River. Likewise, the EPA concluded that Georgia-Pacific could receive a permit to discharge to the St. Johns River through a pipeline, without additional process improvements. Although the Department concluded that compliance could be achieved solely by the construction of a pipeline, it began discussions with Georgia-Pacific and EPA in order to examine other approaches that might lead to compliance in Rice Creek. These discussions culminated in a decision that Georgia-Pacific would invest substantial funds in the installation of additional technology and also be assured of some ultimate means to achieve compliance with water quality standards. On May 1, 2001, the Department issued a Notice of Intent to Issue an industrial wastewater permit, together with an Order Establishing Compliance Schedules Under 403.088(2)(f), Florida Statutes (the Administrative Order). In late January 2002, Georgia-Pacific submitted a request to the Department asking for consideration of two changes to the proposed permit: first, a request to relocate a groundwater monitoring well; and second, a request to review the Department's proposed mixing zone in the St. Johns River for the transparency standard. The Department also proposes a minor change in permit conditions to allow approval of the bleach plant monitoring plan to take place within sixty days after the issuance of the final permit. Both of Georgia- Pacific's requests were reviewed by the Department, and it has recommended that they be included in the proposed permit. Technology-Based Effluent Limits and Water Quality- Based Effluent Limits When considering a permit application such as the one here, the Department reviews the application to determine compliance with technology-based effluent limits (TBELs) and water quality-based effluent limits (WQBELs). TBELs are minimum industry standards that all facilities must meet regardless of their discharge location. They are predominantly production-based, and they limit the mass of pollutants that may be discharged based on the mass of product produced. Those limits generally reflect EPA's assessment of the industry standard regarding what can be met in a given discharge. In the preparation of a permit, the Department practice is to first determine the TBELs that would apply. In contrast, a WQBEL reflects how low the discharge must be (or how effective treatment must be) for a given parameter to meet water quality standards. Relief mechanisms such as mixing zones are inherent in WQBELs. A WQBEL is necessary only for those parameters for which there is a reasonable potential for the facility either to exceed the water quality standard or come close to exceeding the standard. As a matter of agency practice, the Department does not impose a limit unless there is a reasonable potential to exceed a standard. In order to determine whether there is such a reasonable potential for exceeding a standard, the Department will review past operations and other information it may have regarding the characteristics of the discharge. For a discharge such as the one proposed in the present case, a "Level II" WQBEL is required. The Department's Point Source Section, with expertise in the field of water quality modeling, analyzes the Level II WQBEL. Georgia-Pacific must meet certain technology-based standards, such as those set forth in the Cluster Rule. The Cluster Rule has been promulgated by the EPA and adopted by the Department and requires the installation of technologies to eliminate the use of elemental chlorine in the bleaching process. The Palatka facility far exceeds (performs better than) technology-based effluent limits. In March 1998, the Department created a document titled "Level II Water Quality Based Effluent Limitations for the Georgia Pacific Corp. Palatka Mill" (the WQBEL Technical Report]. The WQBEL Technical Report has a typed notation on the title page reading "March 1998 -- Final." The WQBEL Technical Report contained the following effluent discharge limitations: The following are the effluent limitations for the Georgia-Pacific Palatka mill discharge to the St. Johns River based upon results from the Level II WQBEL. Review comments from EPA Region 4 are included in the correspondence section. Parameter Limitation Discharge 60 MGD Daily Maximum BOD5 Summer (June 1 - November 30) 3,500 lbs/day maximum thirty day average Winter (December 1 – May 31) 7,170 lbs/day maximum thirty day average TSS Summer (June 1 - November 30) 5,000 lbs/day maximum thirty day average Winter (December 1 – May 31) 10,000 lbs/day maximum thirty day average Dissolved Oxygen 2.7 mg/l minimum Specific conductance 3,220 umhos/cm daily maximum Un-Ionized Ammonia Nitrogen Summer (June 1 - November 30) .11 ug/l daily maximum Winter (December 1 – May 31) .13 ug/l daily maximum Iron (Total Recoverable) 2.91 mg/l daily maximum Cadmium (Total Recoverable) 3.46 ug/l daily maximum Lead (Total Recoverable) 5.87 ug/l daily maximum Zinc (Total Recoverable) 480 ug/l daily maximum When the WQBEL Technical Report was approved in 1998, the Department's Northeast District Office did not prepare a separate formal notice of approval. The WQBEL Technical Report was transmitted by memorandum from the Water Quality Assessment Section to the Department's Director of District Management for the Northeast District on April 13, 1998, where it remained on file. The WQBEL Technical Report complied with the plan of study previously approved by the Department, and it met the requirements of Rule 62-650.500, Florida Administrative Code. Both the Department and EPA staff concurred with the approval of the WQBEL Technical Report. They agreed that the construction of a pipeline and the relocation of the discharge to the St. Johns River would yield a net environmental benefit without additional process improvements. Upgrades Implemented and Required in the Proposed Agency Actions As described more fully below, Georgia-Pacific has modified its production and treatment processes in such a manner as to improve its overall environmental performance. In installing some of those modifications, Georgia-Pacific undertook what was required by federal and state law. For others, Georgia-Pacific has exceeded what it was required to do under state or federal law. To comply with the Cluster Rule, Georgia-Pacific eliminated two bleach plants and installed a new bleach plant, one which uses chlorine dioxide as opposed to elemental chlorine. The implementation of this technology is primarily aimed at eliminating the mechanism for the formation of dioxin in the bleaching plant. Compliance with the Cluster Rule generally requires, among other things, conversion to an elemental chlorine-free bleaching system. Georgia-Pacific is in compliance with the Cluster Rule. Under the Cluster Rule, Georgia-Pacific is required to sample for dioxin at its bleach plant, with a limit of under 10 picograms per liter. Georgia-Pacific has experienced reductions in the color of its effluent as the result of the chlorine dioxide conversion as well as reductions in specific conductance. The reductions in specific conductance are particularly significant because Georgia-Pacific has decreased its effluent flow, which would ordinarily increase specific conductance in the absence of additional improvements. After conversion to chlorine dioxide, Georgia- Pacific began monitoring for parameters defined by the Cluster Rule. In that monitoring, Georgia-Pacific has tested "non- detect" for dioxin and chlorinated phenolics. Specifically, Georgia-Pacific has monitored dioxin in its effluent, as well as within its process –- before dilution with other wastewater –- and the monitoring results at both locations are likewise "non-detect" for dioxin. Furthermore, levels of chloroform and adsorbable organic halides (AOX) have been well within the limits imposed by the proposed permit and the Cluster Rule. Georgia-Pacific has voluntarily agreed to install by April 15, 2006, an oxygen delignification system, or a like system that produces similar or better environmental benefits. Oxygen delignification is a precursor to bleaching, which removes lignins from the fiber before the product is bleached. This process is significant because lignin consumes chemicals, impedes bleaching, and prohibits achieving brightness targets in the bleach plant. The cost associated with the oxygen delignification system is $22,700,000. This commitment is reflected in the proposed Administrative Order and Permit. Oxygen delignification has been identified as having significant benefits in terms of reducing the color and specific conductance of effluent. Georgia-Pacific voluntarily agreed to install by August 15, 2003, a new brownstock washing system to replace four existing brownstock washing lines. A brownstock washer is a piece of equipment that washes organics away from fiber, after pulping and before oxygen delignification. The cost of this equipment is approximately $30,000,000. This commitment is reflected in the Administrative Order and Permit. The new brownstock washers are not required by Department rules, but they will be helpful in reducing the specific conductance of effluent. Georgia-Pacific has also voluntarily agreed to install a green liquor dregs filter. This system would remove dregs from the effluent system and reduce specific conductance and color in the effluent. The cost of the green liquor dregs filter is $1,100,000. This commitment is reflected in the Administrative Order and Permit. Under the proposed agency action, Georgia-Pacific is likewise required to install additional equipment for the implementation of its best management practices program to minimize leaks and spills in the process sewer. This equipment, including controls on the brownstock washer system, and the installation of a spill control system, pumps, and piping, has been installed at a cost of $7,100,000. Georgia-Pacific has also optimized the performance of its treatment system through the relocation of its aerators in the treatment ponds and modifying its nutrient feed system. This has led to reduced levels of biological oxygen demand (BOD) in the discharge, as well as improved treatment for total suspended solids. In addition, Georgia-Pacific has voluntarily installed a reverse osmosis system to recycle certain internal streams, which in turn has led to reductions in specific conductance, at a cost of $3,300,000. To comply with the proposed agency actions, Georgia- Pacific expects to expend a total of approximately $170,000,000 for upgrades for the purpose of producing environmental benefits. Additional money is earmarked for other environmental performance issues, such as water conservation. Except for technology-based limits adopted by rule, the Department does not dictate how a facility achieves compliance with water quality standards. Georgia-Pacific demonstrated that its environmental performance is substantially better than required by technology-based limits. Based on the foregoing, it is reasonable to find that Georgia-Pacific’s commitments to process improvements will lead to a general improvement in water quality in the receiving waters. Relocation of the Discharge As noted above, because of the minimal dilution available in Rice Creek, Georgia-Pacific has never been fully able to achieve water quality standards in Rice Creek, a Class III water body. Rice Creek continues to exceed water quality criteria for specific conductance and color; historically, the discharge had experienced exceedences for the chronic toxicity criterion. Under present conditions, with Georgia-Pacific discharging to Rice Creek and Rice Creek flowing to the St. Johns River, elevated levels of color are experienced along the shoreline of the St. Johns River in the area of existing grass beds. Modeling shows that under current flow conditions from Rice Creek, those color effects are observed on the northwest bank near the confluence of Rice Creek with the St. Johns River. If the discharge is relocated to the St. Johns River and discharged near the river bottom through a diffuser, it will beneficially change the distribution of color impacts both to Rice Creek and the St. Johns River. Color in Rice Creek will improve, returning to its background color of 100 to 150 platinum cobalt units (pcu). Specific conductance within Rice Creek will also be markedly reduced. Because the input will occur in the middle of the St. Johns River, with higher flows and greater turbulence, there will no longer be relatively highly colored water flowing along the shoreline. Therefore, the relocation will provide a significant benefit of moving highly colored water away from grass beds and will mitigate against any existing effects on those grass beds. It is beneficial to relocate discharges to the middle of a stream, as opposed to the edge of a shoreline, where effluent tends to hug the shoreline. Therefore, regardless of the process improvements, there will be a net environmental improvement by relocating the discharge to the middle of the St. Johns River The discharge from the proposed diffuser will be comparatively benign, in comparison to the present flow from Rice Creek into the St. Johns River. This is because the effluent would not reach or hug the shoreline in such a scenario but rather would be diluted in rising to the surface, as well as by its lateral movement in the direction toward the river bank. The relocation of the discharge to the middle of the St. Johns River will cause improvements through localized changes in concentrations near the diffuser and the confluence of Rice Creek and the St. Johns River. Based on the foregoing, it is found that Georgia- Pacific’s proposed discharge into the St. Johns River will not result in water quality degradation, but will instead lead to a general improvement in water quality. Proposed Conditions in the Permit and Administrative Order Before certifying completion of the required manufacturing process improvements, Georgia-Pacific is required to submit to the Department a report on its ability to optimize the modifications, as well as a separate report which would determine whether Georgia-Pacific can meet certain limits that would enable a continuing discharge to Rice Creek. If the water quality improvements are sufficient to achieve standards in Rice Creek, the permit would be reopened and Georgia-Pacific would be required to maintain the present discharge location to Rice Creek. Otherwise, Georgia-Pacific would be authorized to construct the pipeline to the St. Johns River. The permit is drafted so that Georgia-Pacific will verify the need for mixing zones, as well as the dimensions of proposed mixing zones, after process improvements are complete. The Administrative Order imposes interim effluent limitations during the compliance period described in that Order. The Administrative Order contains "report-only" conditions for certain parameters. For those parameters which do not have interim limits, there is no appropriate standard to apply because information on effluent and water quality conditions is incomplete. The Department also found it unreasonable to impose interim limits that will be met only after Georgia-Pacific completes the improvements requested by the Department. Under Department practice, it is reasonable to impose "report only" conditions for parameters when it is unclear whether the discharge for the facility presents a concern for potential exceedences of water quality standards. In addition, "report only" conditions are used when a facility is undertaking an effort to address problems for certain parameters during a period necessary to achieve compliance. The proposed permit includes mixing zones in the St. Johns River for dissolved oxygen, total recoverable iron, total recoverable cadmium, total recoverable lead, un-ionized ammonia, turbidity, and specific conductance. The length of each of those mixing zones is 16.5 meters, that is, limited to the rise of plume. A mixing zone is also required for transparency, which will require a length of 734 meters. Within 12 months after certifying completion of the manufacturing process improvements, Georgia-Pacific will be required to re-evaluate the need for mixing zones and effluent limits and re-open the permit as necessary to include final mixing zones, effluent limits, and monitoring requirements. Compliance with Ambient Water Quality Standards The Petition contends that Georgia-Pacific has not provided reasonable assurances that it would comply with the following standards: nutrients (paragraph 18); dissolved oxygen (paragraph 20); chronic toxicity (paragraph 21); total suspended solids (paragraph 23); iron (paragraph 25); and phenolic compounds (paragraph 26). Although no water quality standard is directly applicable, Petitioners also addressed the following water quality issues: biological oxygen demand (BOD) (paragraph 20); dioxin, "related compounds," chlorinated organics, AOX, and chemical oxygen demand (COD) (paragraph 22); color (paragraph 24); and total suspended solids (TSS), which is alleged to include total organic carbon (TOC) (paragraph 94). Petitioners asserted that dioxin, chlorinated organics, TSS, and AOX are significant in considering compliance with the "free-from" standard in Rules 62- 302.500(1) and 62-302.530. In determining whether water quality standards will be met, those allegations should only be considered in reference to those adopted standards for the "free-from" standard. The effluent data establishes that Georgia-Pacific will consistently meet the proposed permit limits for discharge to Rice Creek. Georgia-Pacific's treatment facility has the capacity to comply with the proposed permit limits for discharge to Rice Creek, and there is a very high degree of assurance that it has the capability to comply with those standards in the future. In addition, Georgia-Pacific's treatment facility is able to meet the WQBELs established for discharge into the St. Johns River. Evaluation and modeling demonstrate that if a discharge to the St. Johns River is undertaken, the St. Johns River will meet Class III water standards at the edge of the mixing zone if Georgia-Pacific complies with its proposed effluent limits. Also, the effluent will meet all applicable effluent guidelines and technology-based standards adopted in the Florida Administrative Code. The effluent will not settle, form deposits, or create a nuisance, and it will not float as debris, scum, or oil. Finally, the effluent will not produce color, odor, taste, or other conditions so as to create a nuisance. Georgia-Pacific performed an analysis to determine the effluent limits that would be necessary to achieve water quality standards. This analysis included water quality modeling, which is a method of summing up inputs and losses, calculating the amount of material in a system, and determining the concentration of a substance. The model was used to geometrically represent the St. Johns River, Etonia Creek, and the reach of the St. Johns River within the study area, which extended from Buffalo Bluff (15 miles upstream of the confluence of Rice Creek and the St. Johns River) to Mile Point 50. Rice Creek enters the St. Johns River at Mile Point 74. When a model is performed, the model will yield estimates or predictions of concentrations throughout a water body. Those predictions can be compared to field observations and measurements; if the model is done properly, the calculated numbers should agree with the measured numbers. Modeling is used to evaluate future conditions based on hypothetical future changes to the system. The modeling methods and advanced time-variable models employed by Georgia- Pacific's consultants were approved by the Department. Georgia-Pacific prepared a plan of study to obtain field data in the St. Johns River for the purpose of assuring that the models would simulate observed concentrations of constituents. The Department approved that plan of study and published a notice of approval. The Department also approved the quality assurance project plan for the collection of water quality data in Georgia-Pacific's modeling efforts. After approval of the plan of study and quality assurance project plan, Georgia-Pacific's consultants performed water quality surveys in November 1994 and May 1995. The models employed by Georgia-Pacific's consultants were calibrated and produced the observed water quality results. The proposed diffuser would be located about one foot from the bottom of the channel. As designed, the plume would leave the proposed diffuser and spread out, with the upper part of the plume going to the surface of the water. The plume model calculates the dilution at the centerline of the plume, where there would be a minimum of dilution. This method of using the centerline as a reference point leads to a conservative analysis, and it would require the Applicant to achieve more dilution than might otherwise be necessary to achieve water quality standards. For regulatory purposes, the Department usually uses the maximum height of the rise of the plume to determine a mixing zone, the point at which concentrations along the centerline of the plume would level off. Because of that practice, for certain parameters where the required mixing zone is less than the distance of the rise of the plume, a decrease in effluent limits would not lead to a decrease in the size of the mixing zone. Tidal actions will cause re-entrainment, that is, the movement of dissolved substances back into the plume area. This factor reduces the dilution factor that otherwise would apply to the system. This factor is accounted for in modeling by tying in a diffuser computation to a water quality model. The modeling employed by Georgia-Pacific assumes 7Q10 conditions, that is, a conservative assumption that flow is equal to the lowest one-week average for a ten-year period, where there is little dilution. The employment of this conservative method would minimize the probability of exceedences in the receiving water body. The projection employed by Georgia-Pacific's consultants was even more conservative because the 7Q10 flow rate is assumed to apply through a 60-day average flow, a condition that may never occur, and would not be expected to occur once in ten years. In contrast, the use of time-variable simulations would lead to less stringent permitting requirements. The permit provides reasonable assurance that the construction, modification, or operation of the treatment system will not discharge or cause pollution in violation of Department standards. The permit provides reasonable assurance that, based on the effluent limitations determined by the Department in the WQBEL Technical Report, water quality standards would be met outside the area of the proposed mixing zone for specific conductance, dissolved oxygen, un-ionized ammonia, iron, cadmium, lead, and zinc. Based on additional analysis as reflected in Georgia-Pacific's proposed amendment to the draft permit, Georgia-Pacific would achieve compliance with the transparency standard with the mixing zone described in its proposed amendment, that is, with a total length of 734 meters. The chronic toxicity criterion is a biological measurement which determines whether organisms are impaired by effluent. If impairment is demonstrated, the test does not indicate what component of the effluent is causing the effect. Georgia-Pacific is required to conduct testing for acute and chronic toxicity twice a year. Current tests undertaken in May and October 2001 are representative of effluent conditions after Georgia-Pacific undertook conversion of the bleach plant to chlorine dioxide. Those tests demonstrate that Georgia-Pacific is in compliance with the acute and chronic toxicity criterion since the conversion to chlorine dioxide bleaching. Georgia-Pacific is also in compliance with the biological integrity standard, based on the most recent fifth-year inspection. Because of the flow characteristics and the characteristics of pulp mill effluent, the pollutants associated with the effluent are not assimilated as the effluent travels from the point of discharge, through Rice Creek, to the St. Johns River. The particulates associated with pulp mill effluent are so small or fine that they will remain in suspension and thus not settle out in Rice Creek. In addition, because Rice Creek is channelized, there is no sloping side that would enable the growth of vegetation that would filter the water. Furthermore, even if there was a sedimentation process occurring in Rice Creek, no additional sedimentation would occur after the system reaches an equilibrium point. Although Rice Creek does cause a small decrease in BOD through oxidation, Georgia-Pacific has compensated for that factor by the injection of oxygen in the effluent. Thus, the direct piping of effluent to the St. Johns River (as opposed to a discharge into Rice Creek, which flows into the St. Johns River) would not result in any significant increase in pollutant loading to the St. Johns River. In addition, the construction of a pipeline would take place only after additional technologies have been implemented to maximize pollutant reduction. Compliance with the Reasonable Assurance Standard Georgia-Pacific has provided reasonable assurances for the proposed permit to be issued for a discharge into the St. Johns River. This finding is based upon Georgia-Pacific's ability to meet the effluent standards described in the draft permit, and modeling results demonstrating that, with the proposed mixing zones for certain parameters, a discharge into St. Johns River, as designed, will not result in a violation of Class III standards. Mixing Zones In Section H of their Petition, Petitioners challenged the proposed mixing zones set forth in the proposed Permit. Petitioners generally alleged that the proposed mixing zones were "enormous" and that they failed to comply with certain rules restricting mixing zones. In their Petition, Petitioners articulated three theories to support the proposition that the mixing zones were illegal: first, that the mixing zones would include a nursery area of indigenous aquatic life, including beds of aquatic plants of the type listed in Rule 63-302.200(16); second, that the mixing zone, by itself, would lead to a violation of the minimum criteria in Rule 62-302.500; and third, that the mixing zones, or a combination of those mixing zones, would result in a significant impairment of Class III uses in the St. Johns River. Petitioners were authorized to amend their Petition to add additional allegations to paragraphs 17 and 67 of their original Petition regarding the mixing zone. Under those amendments, Petitioners alleged that Georgia-Pacific’s proposed amendment to the draft permit would (a) improperly expand the mixing zone; (b) fail to account for the length of the diffuser; (c) improperly substitute "transparency" for "color"; and (d) prevent isolation of transparency impacts from color in the discharge. However, there is no evidence which ties those allegations to any regulatory standard that would affect the proposed agency action. Petitioners also contended that color was a surrogate for chemical oxygen demand, as well as for substances that are alleged to cause chronic or acute toxicity. However, as shown by the testimony of Department witness Maher, the permit condition for "color" was a surrogate only for the transparency standard. No evidence to support a contrary inference was presented. Petitioners also made general allegations that the proposed mixing zones are illegal, without a clear indication of what is deemed illegal about the mixing zones. Although the Petition includes a general argument in opposition to mixing zones, Petitioners were unable to suggest a legal basis for alleging that the mixing zones were illegal. For example, Petitioners alleged that certain mixing zones are enormous but failed to articulate why they are so enormous as to be illegal. They did not allege that the Department had erred by allowing a larger mixing zone than Georgia-Pacific should have received under applicable rules. Indeed, such a position would be antithetical to Petitioners' allegations that Georgia-Pacific had failed to achieve water quality standards for a number of parameters. The accepted testimony establishes that Georgia-Pacific's proposed mixing zones will comply with Department rules. No persuasive evidence was presented to the contrary. Because the effluent quality will differ from present conditions after completion of the process improvements, the proposed mixing zones will not be final until after process improvements have been made, the operation has been stabilized, and the mixing zones have been re- verified. No mixing zones are authorized in the Administrative Order. The Administrative Order contains a table setting forth potential mixing zones that are used as a benchmark to determine whether Georgia-Pacific can meet water quality standards in Rice Creek. The table sets out a series of hypothetical mixing zones at 800 meters, that is, the maximum presumptive distance afforded without additional relief mechanisms. Because no mixing zones are proposed to take effect in Rice Creek, there can be no issue of "illegal" mixing zones in Rice Creek. Within a range of potential discharge flows, from 20 MGD to 60 MGD, water quality standards will be met within the area of the proposed mixing zones for all parameters for which mixing zones are required. Mixing zones are allowed by Department rules and are considered a part of Florida water quality standards. In the context of the Department's permitting review, if a modeling analysis shows that the concentration of a pollutant in effluent is greater than the water quality criterion, the Department will determine if the amount of dilution in the receiving water is sufficient to assimilate the pollutants of concern. The Department will then determine either the length (in the case of a river) or area (in the case of an estuary) of a water body that would be necessary to achieve compliance through dilution. Based on chloride levels, the St. Johns River at the area of concern would not be considered an estuary under Department rules. Each of the proposed mixing zones would be less than 800 meters in length (as allowed by Department rule) and less than 125,600 square meters in area (a limitation that would apply only if the area was an estuary). The proposed discharge will comply with all minimum rule requirements with respect to mixing zones, such as those for dissolved oxygen, turbidity, and the absence of acute toxicity. Likewise, the proposed mixing zones will not impact any nursery areas for indigenous aquatic life. Nutrient Issues In Section I, Petitioners contested the Department's decision to not require effluent limits to prevent a violation of the narrative water quality criterion for nutrients. For reasons addressed in the undersigned's Order dated February 14, 2002, that issue is waived based because of Petitioners' failure to file a timely challenge to the WQBEL Technical Report. In addition, based on the findings set out below, Georgia-Pacific has provided reasonable assurances that it will not violate the narrative standard for nutrients. Further, the evidence shows that effluent limits for nutrients are not presently warranted. Petitioners presented testimony that the St. Johns River may be nitrogen-limited or phosphorous-limited at different times of the year, which means that concentrations of one or the other would limit algae growth at different times of the year. Relative light levels, as well as the penetration of light, also affect algae growth. Georgia-Pacific’s treatment system requires the addition of ammonia because ammonia or nitrate is a necessary nutrient for the growth of bacteria in the treatment system. Ammonia and nitrate are both nutrients. Although there can be a conversion from one form to the other, that conversion does not affect the net loss or gain of nutrients. Although nutrient issues are of concern to water bodies, it is absolutely necessary in a biological treatment system to have sufficient nutrients for the operation of the system to treat parameters such as BOD. The Georgia-Pacific facility is achieving a high level of treatment while managing its system at a minimum level of nutrient addition. Management of a treatment system requires attention not only to the influent and effluent, but also monitoring of conditions within the system itself to assure adequate treatment. Georgia-Pacific is continuing to refine its procedures for doing so. The State has adopted what is referred to as the "5- 5-3-1" (advanced wastewater treatment) limitation for municipal treatment plants that discharge to surface waters. This standard refers to five milligrams per liter for BOD, five milligrams per liter for suspended solids, three milligrams per liter for total nitrogen, and one milligram per liter for total phosphorous. This limitation has been in effect for many years and remains one of the most stringent state standards in the nation. Georgia-Pacific's facility would be in compliance with those standards for nitrogen and phosphorous. Effluent from the Georgia-Pacific mill increases the concentration of total nitrogen in Rice Creek, relative to background conditions. However, because of the relatively higher flow of the St. Johns River, when the load from the mill is transported to the St. Johns River, the increase in nitrogen concentration is so small as to be imperceptible. Nitrogen loading from Georgia-Pacific's Palatka mill on a long-term average (prior to upgrades of its treatment plant) has been measured at 1,196 pounds per day. The average loading at Buffalo Bluff, which is far upstream of Rice Creek and the Georgia-Pacific Palatka mill, is 36,615 pounds per day. Additional nonpoint sources contribute approximately 12,000 pounds per day in the study area. Thus, the loading from the Georgia-Pacific mill represents a 2.4 percent increase in nitrogen levels on the St. Johns River, a difference that cannot be measured. The largest point source of nutrients in the lower St. Johns River is the Buckman wastewater treatment plant in Duval County. That facility does not have nutrient limits on its discharge permit. Rice Creek does not provide any treatment (as opposed to dilution) for nitrogen in Georgia-Pacific's effluent. A review of probability distributions for nitrogen concentrations upstream and downstream of Rice Creek demonstrated that Rice Creek had no influence on nitrogen levels in the St. Johns River. Phosphorous concentrations from the effluent, if discharged to the St. Johns River, would dilute rapidly, decreasing to .2 milligrams per liter within the water column, five to six feet below the surface, after discharge from the diffuser, below the area in which light is absorbed at the surface of the water column. Chlorophyll-A is a parameter that is typically used as a measure of phytoplankton in the water column. Concentration distributions for chlorophyll-A at Buffalo Point (upstream of Rice Creek) matched concentrations for the same parameter at Racey Point, a station far downstream of Rice Creek. This analysis confirms that the inputs coming into the St. Johns River System from Rice Creek do not have a significant influence on the water quality of the St. Johns River, with respect to nutrients. With a discharge coming directly to the St. Johns River, and with nutrient loading being the same as from Rice Creek, the nutrient loading would not influence the St. Johns River. The Department does not have sufficient information at the present to impose a nutrient limit on Georgia-Pacific. The draft permit accounts for this issue through a re-opener clause which would authorize a limit when that information is available, if such a limit is necessary. Allegations Regarding "Deformities in Fish" Section J of the Petition includes allegations that Georgia-Pacific failed to provide reasonable assurances regarding adverse physiological response in animals under Rule 62-302.530(62), and that Georgia-Pacific has failed to provide reasonable assurances that its discharge will not be mutagenic or teratogenic to significant, locally occurring wildlife or aquatic species, or to human beings, under Rule 62- 302.500(1)(a)5. Petitioners suggest that the permit cannot be granted as proposed because it lacks effluent limits for (unstated) substances that are alleged to create potential violations of the free-from standard. This argument is barred as a matter of law for the reasons stated in the Order dated February 14, 2002. In addition, based on the following findings, this argument has been rejected because Georgia- Pacific has met the reasonable assurances standard without effluent limits on those unstated (and unknown) substances that are alleged to cause violations of those rules. Petitioners presented evidence that paper mill effluent in general contains chemicals which could cause the masculinization of the females in certain fish species, as well as hormonal effects in males. However, witness Koenig did not offer any testimony that Georgia-Pacific’s effluent, in particular, contained such chemicals. Dr. Koenig had collected no data and had not conducted any field studies in Rice Creek to support his testimony; rather, he relied on articles published by others and provided by Petitioner Linda Young. In agency practice and interpretation of the free- from standard in Rule 62-302.530(62), Florida Administrative Code, the question of whether a change is adverse depends on the overall community or population of that particular species. Tellingly, Petitioners did not present any competent evidence, through Dr. Koenig's testimony or otherwise, that Georgia-Pacific's effluent presents the potential for adverse effects on the overall community or population of any species. Dr. Koenig testified at length from his reading of studies performed by other scientists regarding changes in the hormone levels and gonadosomatic index (the relative weight of gonads) of fish in the St. Johns River in the vicinity of Rice Creek. In his testimony, Dr. Koenig relied on two published articles to address conditions in the vicinity of Rice Creek, both of which were primarily authored by M. Sepulveda. One of those articles showed hormonal changes taking place in a laboratory study where largemouth bass were exposed to mill effluent. That study also showed a change in the gonadosomatic index in the subject fish. Dr. Koenig did not offer any opinion that such changes would be adverse or that they would affect the reproduction of those fish. The other study was a field study with samples of fish at various regions in the vicinity of Rice Creek. This study did not include any fish from Rice Creek, but did include fish from the confluence of Rice Creek and the St. Johns River, as opposed to reference streams. The study showed lower levels of hormones in fish from the area of that confluence, but also showed similar effects at a reference stream 40 kilometers away. No testimony was presented to support the inference that the effects represented in the two studies were adverse, within the meaning of the free-from rule. Moreover, the data from those two studies were collected in 1996, 1997, and 1998, or before Georgia-Pacific converted its bleach plant to chlorine dioxide bleaching in March 2001. Therefore, Dr. Koenig had no data to support any theory that under current effluent conditions, Georgia-Pacific is producing or will produce compounds that would cause any changes of hormone concentrations in fish. With respect to the phenomenon of fish masculinization in Rice Creek, Petitioners' experts had no data to support a competent opinion on this subject. To support his testimony, Dr. Koenig only read one article that purported to demonstrate fish masculinization in 11-Mile Creek and the Fenholloway River, and one letter from an employee of the St. Johns River Water Management District [Young Exhibit 8A] that referred to "external anatomical anomalies" near Georgia-Pacific discharge points. The article attached to that letter and included in Young Exhibit 8A addressed data collected in Escambia County, and does not address conditions in Rice Creek. Petitioners attempted to present the theory that the potential for endocrine disruption or fish masculinization resulting from paper mill effluent would violate the free-from standard. As a condition to issuance of the permit, the Department proposes to require Georgia-Pacific to obtain approval of a plan of study to analyze the potential for significant masculinization effects from the discharge. Under the proposed conditions, Georgia-Pacific is required to determine the minimum concentration at which such effects may be detected. By its terms, the proposed permit may be reopened to adjust effluent limitations or monitoring requirements if the masculinization study shows a need for them. Department witness Brooks acknowledged a general concern for endocrine disruption resulting from paper mill effluent. In particular, Mr. Brooks referred to studies which showed that paper mill effluent could cause the elongation of an anal fin in the females of certain fish species. However, Mr. Brooks observed that although this appeared to be a physiologic response, there was no evidence or reason to believe that this effect was an adverse effect. Reports regarding masculinization, that is, the elongation of anal fins in female fish, are suspect because (among other reasons) the studies do not account for variances that would be expected based on the independent variables of sex, age, and growth. In any case, the data from those reports do not demonstrate significant, adverse effects in exposed populations. A critical and unbiased review of the published literature shows that impacts of masculinization are biologically interesting but preliminary in nature. Department witness Maher observed that the masculinization effect occurs naturally, and that the Department's plan of study is intended to determine whether this natural phenomenon becomes problematic or is enhanced by activity at the mill. Initial information reviewed by the Department indicates that the phenomenon is no longer experienced when a mill converts to a chlorine dioxide (ECF) bleaching process, as Georgia-Pacific has done in converting to ECF. According to witness Brooks, the observed effect known as "fish masculinization" is not confirmed to result from endocrine disruption. The Department has concluded that it has reason to be concerned about the potential for fish masculinization. From the Department's viewpoint, it is not clearly understood what is causing this effect. It has been shown that there is a direct relationship between concentration (or dilution) and the observation of those effects. This conclusion is consistent with Dr. Koenig's testimony, which observed a decline in observed effects based on the dosage or concentration of effluent. The Department has reviewed evidence showing that, with dilution, the effect of fish masculinization "go[es] away." In the Department's analysis of the fish masculinization issue in the present permit, the Department is requiring process improvements that would reduce this phenomenon, if it exists, in Rice Creek. In addition, if the discharge is relocated to the St. Johns River, the additional dilution would ameliorate the concern regarding fish masculinization, and the phenomenon will "go away." To give an even higher level of assurance that the resource will be protected, the Department is requiring a study to evaluate and confirm that the issue is resolved. The process changes required in the permit, the potential for further dilution in the St. Johns River if it becomes necessary, and the evaluations required in the permit condition render it very likely that any potential for fish masculinization will be mitigated. Thus, to the extent that fish masculinization could be deemed a violation of the free- from standard, Georgia-Pacific has provided reasonable assurances that it will not cause the masculinization of fish in the St. Johns River. Petitioners did not offer any credible evidence establishing that any specific compound or substance would cause the alleged effects of endocrine disruption or fish masculinization. Indeed, Dr. Koenig acknowledged that he was unable to find in his literature search the mechanism or chemical that is alleged to cause fish masculinization. Likewise, Petitioners were unable to suggest any concentration of that substance which would lead to those alleged effects. Dr. Koenig expressed a belief that chlorinated organic compounds from the paper manufacturing process may be responsible for endocrine disruption. Dr. Koenig also opined that within the general process of paper manufacturing, the bleaching process in particular was a concern. To the extent that Dr. Koenig may have had a concern regarding endocrine disruption from his review of studies performed using data from 1996 through 1998, it is reasonable to conclude that this concern is ameliorated by Georgia-Pacific's conversion to chlorine dioxide bleaching in March 2001. There is no evidence to establish a relationship between the presence or absence of dioxin and fish masculinization. Compliance with Dissolved Oxygen Standard (and BOD Concerns) In Section K, Petitioners disputed whether Georgia- Pacific had provided reasonable assurance of compliance with the adopted dissolved oxygen standard. The proposed permit contains different permit limits for BOD for winter and summer, because the impacts of discharges are different during those parts of the year. Georgia-Pacific has shown a substantial downward trend for BOD. The Georgia-Pacific facility discharges mass loadings of BOD at quantities which are much less than what is required to meet discharge standards. A review of effluent data shows that even for the worst period for performance, Georgia-Pacific's effluent was well below the proposed permit limits for BOD. A review of BOD discharges over the period of January 2000 to August 2001 demonstrates a consistent ability of the facility to meet the proposed permit limits, as well as a general trend of improvement that reflects Georgia-Pacific’s upgrade of the treatment system. Georgia-Pacific will meet the minimum standards for dissolved oxygen in mixing zones. With additional process improvements, Georgia-Pacific will also experience additional environmental benefits in the reduction of chemical oxygen demand. N. Dioxin and "Related Compounds" As to dioxin, Petitioners alleged in Section L of their Petition that Georgia-Pacific may discharge dioxin in concentrations that could cause a violation of the free-from standard. The proposed permit includes a permit condition for a plan of study to assess levels of "TCDD" and "TCDF" in fish tissue in the receiving waters. Department witness Brooks was unaware of any regulatory authority to require fish tissue sampling for dioxin. Department engineer Kohn was also uncertain of any regulatory authority for the Department to test for dioxin in fish tissue. Mr. Kohn agreed with the proposition that when a proposed permit condition is not specifically authorized by rule or statute, the condition must be withdrawn if the applicant objects. However, in this case, Georgia-Pacific did not object to the inclusion of a permit limit of .014 picograms per liter of dioxin in its final effluent. As noted above, Georgia-Pacific established that under its current effluent conditions, following conversion to chlorine dioxide bleaching, the facility is "non-detect" for dioxin. The Department does not have any adopted standards for fish tissue concentrations. Petitioners presented very little evidence of dioxin concentration in fish tissue following Georgia-Pacific's conversion to ECF bleaching, and they opposed the introduction of such data into evidence. A review of available data shows that there was not a statistically significant difference between the level of bioaccumulation of dioxin in fish tissue in Rice Creek versus a reference creek. The Florida Department of Health has concluded, based on review of prior fish tissue data, that a fish consumption advisory for Rice Creek was not warranted. Total Suspended Solids In Section M, Petitioners have alleged that TSS in the effluent would cause various environmental problems. However, Petitioners did not allege that TSS in the effluent would lead to a violation of water quality standards, and they did not present any accepted testimony or other evidence to support such a theory. There is no adopted water quality standard for TSS. According to the WQBEL Technical Report, effluent levels of TSS are generally comparable to background levels in the St. Johns River. The primary wastewater clarifier is designed to remove fiber or other settleable solids from the effluent before it travels to the secondary treatment system. Total suspended solids in Georgia-Pacific's effluent are primarily derived from biota in the treatment system, rather than fiber from the industrial process. Georgia-Pacific has shown a substantial downward trend for TSS. The facility reliably discharges TSS at quantities which are much less than what is required to meet proposed effluent limits. A review of discharge data for TSS demonstrates that Georgia-Pacific would perform in full compliance with the proposed permit limits. Petitioners presented no evidence to the contrary. Petitioners likewise presented no evidence to quantify any impacts from TSS. Color, the Transparency Standard, and Related Issues Petitioners have also alleged that the color in Georgia-Pacific's effluent would lead to nuisance conditions in violation of Rule 62-302.500(1)(a). However, they did not allege any potential violation of the one parameter traditionally associated with effluent color: the Department's transparency standard. Elevated levels of color in the effluent reduces the ability of light to penetrate into the water column, with potential effects on the growth of aquatic plants. This is translated into a "compensation point," that is, the water depth at which the light level reaches one percent. The state transparency standard prohibits a discharge from causing a decrease in the compensation point of more than ten percent, relative to natural background. The rate of decrease of light within a water column is related to increased color levels. Analysis performed by Georgia-Pacific's consultants shows that a ten percent change in compensation depth corresponds to a seventeen percent increase in color above natural background levels. Under the proposed permit, color was used as a surrogate, or alternative measure, for compliance with the transparency standard. Color was not used as a surrogate for any parameter other than transparency. Georgia-Pacific will, with additional process improvements, see additional environmental benefits in reducing the color of its effluent. For the purpose of the application, Georgia-Pacific's modeling analysis assumed that based on process improvements, its effluent would have a color of 1202 pcu. EPA's technical team had opined that Georgia- Pacific would, with process improvements, achieve a reduction in color to 500 pcu. Georgia-Pacific had opined that the improvements would achieve a color of 1202 pcu. Department witness Owen opined that the color reduction would be in a range between those two figures. Petitioners did not present any contrary evidence as to the ability of additional process improvements to reduce effluent color. Accordingly, using the most conservative (least optimistic) figure, Georgia-Pacific has provided reasonable assurances that before a discharge to the St. Johns River would be authorized, it will reduce the color of its effluent to 1202 pcu. The proposed permit takes into account the potential that Georgia-Pacific's process improvements will achieve greater improvements in color than anticipated. Under the proposed permit, the Department would reduce the size of the proposed mixing zone if Georgia-Pacific demonstrates that the color of its effluent is lower than projected. The modeling analysis further demonstrates that based on a discharge to the St. Johns River, assuming an effluent color of 1202 pcu, the change in compensation depth is greater than ten percent in the vicinity of the proposed diffuser. A 734-meter mixing zone for transparency would be required for a discharge to the middle of the St. Johns River. The required area for such a mixing zone is 64,000 square meters. Antidegradation Review In Section P, Petitioners have generally alleged that the Department failed to conduct a proper antidegradation analysis. More specifically, they alleged that the proposed discharge would reduce the quality of the receiving waters below the classification established for them. Because Georgia-Pacific presently discharges to Rice Creek, and because a separate relief mechanism (the Administrative Order) authorizes the discharge to Rice Creek, it appears that the antidegradation issues relate solely to the proposed discharge into the St. Johns River. If the relocation had resulted in degradation of the receiving water, the Department would have regulatory authority in its Rule 62-4.242(1)(c) to consider whether Georgia-Pacific could minimize its discharge through other discharge locations, the use of land application, or reuse. However, Petitioners failed to allege in their Petition that the Department misapplied that regulatory authority. Moreover, under Department practice, when a new discharge or relocation of a discharge will result in an environmental benefit, it is not necessary to conduct a review of other discharge options. The Department undertakes an antidegradation analysis in, among other scenarios, cases where a discharge will result in achievement of minimum water quality standards for a given designated use but will lead to an incremental lowering of water quality. The purpose of this analysis is to assure that the societal benefits of the discharge outweigh the cost of that incremental lowering. The proposed permit will not lead to the increase in discharge of any parameter, and the permit is more stringent and adds additional parameters or limits. In addition, there is a trend of improved performance for the treatment system. In the present case, the Department has concluded that the proposed project will result in a significant improvement in water quality by the reduction of pollutants associated with exceedences of water quality standards in Rice Creek. Regardless of whether the discharge remains in Rice Creek or is relocated to the St. Johns River, the proposed Permit and Administrative Order will lead to an improvement in water quality as opposed to a degradation of water quality. Based on improvements with respect to specific conductance parameters, the ability to relocate the discharge into the middle of the St. Johns River where better mixing will occur (relative to the confluence of Rice Creek), and anticipated improvements in grass beds, the proposed pipeline will lead to a net environmental benefit in the St. Johns River and Rice Creek. The project as set forth in the proposed Permit and Administrative Order will be clearly in the public interest because it will result in full achievement of water quality standards and full compliance with the designated use of the receiving water body. The project will result in a substantial reduction in pollutant loading in Rice Creek and the St. Johns River, regardless of the whether the discharge will be located in Rice Creek or in the St. Johns River. The Department adequately evaluated other discharge locations, alternative treatment, and disposal alternatives. Studies, including a land application pilot project, demonstrated that land application was not feasible based upon impacts to groundwater resources. In their Petition, Petitioners did not dispute the Department's analysis of those factors under applicable rules. Given these considerations, it is found that Georgia-Pacific has provided reasonable assurances that it will meet water quality standards, and it is evident that Georgia-Pacific will not reduce the quality of the St. Johns River below its Class III designation. Further, the proposed discharge will be clearly in the public interest for the purpose of antidegradation analysis. Further, the proposed discharge into the St. Johns River is important to and beneficial to the public health, safety, and welfare, taking into account the policies set forth in Rules 62-302.100 and 62-302.300, Florida Administrative Code. The proposed discharge into the St. Johns River will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Instead, the proposed discharge would provide a benefit to fish and wildlife, and their habitats. No persuasive evidence was presented that the proposed discharge to the St. Johns River would adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Indeed, the record demonstrates a beneficial effect as to those factors. The proposed discharge has not been shown to be inconsistent with the applicable Surface Water Improvement and Management Plan (SWIM plan). Rather, the evidence shows that the proposed discharge would promote the implementation of the applicable SWIM plan. Monitoring Issues Section Q in the Petition generally challenged the adequacy of proposed monitoring requirements. As to this issue, the monitoring conditions imposed in the proposed permit are sufficient to ensure compliance with the proposed permit. Petitioner Young's witness Gilbert agreed that the proposed monitoring conditions were adequate to determine the result of process changes, that the proposed monitoring conditions were comprehensive, and that those conditions were beyond what the Department normally required. The Department does not propose to engage in water quality sampling at the end of the diffuser or at the edge of the mixing zone because of the technical difficulties associated with such an endeavor. Instead, the process for determining compliance is to determine the condition of the effluent and simulate water quality conditions of the receiving water body under low-flow conditions (when the river would be most vulnerable to pollution discharges). Such an approach is more protective because it eliminates variables that may not be representative of worst-case conditions. The evidence shows that the size of Georgia- Pacific's facility renders it impracticable for Georgia- Pacific to compromise the integrity of sampling results, as suggested by Petitioners. Flow Limitations In their Petition, Petitioners also contended that the proposed agency action violates Rules 62-4.240(3)(a) and 62-620.310(9)(a) by failing to specify the volume of discharge or flows. Under Department practice, flow must be specified but is not necessarily limited. Flow was adequately specified in the proposed permit, where the facility is described as 40 MGD wastewater treatment facility with a 22 MGD expected average flow. Volume limits are indirectly set through the establishment of a mixing zone and through mass loading limits in the permit, such as the loading limits for BOD and suspended solids. When flow is increased and the concentration of the effluent remains constant, the flow would be limited by the mass limits in the permit. Furthermore, the pipe and diffuser will have a hydraulic limitation, that is, a physical limitation on the amount that can physically be discharged. The pipeline and diffuser are hydraulically limited to 60 MGD based on the current design. Over a ten-year period, Georgia-Pacific has shown a trend toward reduced effluent flow. For example, in 1991, Georgia-Pacific discharged just under 40,000,000 gallons per day (GPD). In 2001, the discharge was less than 24,000,000 GPD. As a result of water conservation measures, Georgia- Pacific has been able to achieve a substantial reduction in effluent flow even when it experienced increased storm water flow into the treatment system. Because of stormwater inputs into the treatment system, it is very difficult to set a flow limit on the discharge from a pulp and paper mill. Indeed, the Department does not typically impose volume limits on NPDES permits for pulp and paper mills. Where volume or flow limits are imposed on pulp and paper mills, they are necessary in order to assure compliance with a specific standard. The Administrative Order Georgia-Pacific has submitted plans and a reasonable schedule for constructing, installing, or placing into operation an approved pollution abatement facility or alternative waste disposal system. No contrary evidence was presented, and no alternative construction schedule was proposed by Petitioners. In assessing a schedule to achieve compliance, the Department considered the time necessary to construct additional improvements as well as the reasonableness of the time period in light of Georgia-Pacific's capital investment. As part of this analysis, the Department also considered Georgia-Pacific's commitment to go beyond what they were legally required to do in environmental upgrades. The schedule of compliance is reasonable, given the cost and magnitude of the improvements required of Georgia-Pacific. Georgia-Pacific needs permission to continue its discharge to Rice Creek for a period of time necessary to complete research, planning, construction, installation, and operation of an approved and acceptable pollution abatement facility or alternative waste disposal system. The time period described in the Administrative Order will enable Georgia-Pacific to maximize the operation of the process improvements in order to determine if the discharge can meet water quality standards in Rice Creek. Given the cost and magnitude of the improvements required in the permit and Administrative Order, the schedule of compliance set forth in the Administrative Order is reasonable. There is no present, reasonable alternative means of disposing of wastewater other than to discharge it into waters of the State. In their Petition, Petitioners contested the Department's general antidegradation analysis but did not allege that any alternative means of disposal were improperly overlooked. The Department does not have specific regulatory authority to require facilities such as Georgia-Pacific to consider re-use as part of its antidegradation analysis, as it does with domestic waste discharges. Nonetheless, the Department did look at re-use and land application and determined that they were not feasible alternatives. Although it was not specifically required to do so by rule, Georgia- Pacific had exhausted every reasonable means to re-use (rather than discharge) water from its facility. Under earlier authorizations, Georgia-Pacific was not required to achieve standards for color, conductance, and chronic toxicity in Rice Creek. The granting of an operation permit will be in the public interest. This is because Putnam County will suffer an adverse economic impact if the facility is shut down and there will be net environmental benefits achieved through compliance with the requirements set forth in the Permit and Administrative Order. The Permit requires Georgia-Pacific to submit a written report to the Department if it appears that a mixing zone is needed for chronic whole effluent toxicity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order (1) issuing proposed permit number FL0002763 to Georgia-Pacific Corporation, as set forth in Department Exhibit 175, and with the change in the permit conditions as requested in Georgia-Pacific Exhibit 102 and proposed by the Department during the hearing, and (2) approving Administrative Order No. 039-NE as set forth in Department Exhibit 176. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 3rd day of July, 2002. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Timothy Keyser, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, No. 107 Cape Coral, Florida 33904-9604 Jessica C. Landman, Esquire 1200 New York Avenue, Northwest Suite 400 Washington, D.C. 20005 Terry Cole, Esquire Jeffrey Brown, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Teri L. Donaldson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Francine M. Ffolkes, Esquire Thomas R. Gould, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issues to be resolved in this proceeding concern whether the Respondent Gate Petroleum Company (Gate) has provided reasonable assurances that Water Quality Standards will not be violated by the proposed modification of Gate's dredge and fill permit No. 160462149 and whether Gate has provided reasonable assurances that the proposed modification of that permit will not be contrary to the public interest, nor be the occasion of adverse cumulative impacts to water quality or public interest considerations so as to make this project contrary to the public interest.
Findings Of Fact The Respondent Gate Petroleum Company, by and through its wholly-owned subsidiary, Gate Maritime Properties, Inc., proposes to construct a ship- berthing facility for two ships adjacent to Blount Island Channel, along the southeastern portion of Blount Island, in the St. Johns River, in Duval County, Florida. The proposed facility would provide for the berthing of two ships of the United States Navy Military Sea-Lift Command in conjunction with the mission of the Navy's Rapid Deployment Force. The proposed facility would be located along the southeasterly portion of "Cut A" of the Blount Island Channel and will consist of a "T-head Pier", a breasting dolphin and cat walk and two mooring dolphins. The pier would be connected to the land by an approach trestle. The facility involved will be constructed by the insertion of concrete pilings into the bottom of the Blount Island Channel and in the adjacent upland, which would support concrete decks and caps. Removal of dredged material will be necessary to accomplish the project and will be performed by a floating hydraulic dredge with associated "Cutter Head." The resulting dredged material would be disposed of in a diked spoil area on either Blount Island or at the Dayson Spoil Site adjacent to the mouth of Clapboard Creek. The Respondent Gate currently holds a DER dredge and fill permit, No. 160462149, authorizing the removal of approximately 3.4 million cubic yards of dredged spoil and the installation of an associated 5,000 feet of shoreline bulkhead. The proposed installation of the pier and mooring facilities would result in a modification of that permit so that approximately 1,000 feet of shoreline bulkhead and most of the related dredging will be unnecessary and not performed. Instead, approximately 7,100 cubic yards of dredging would be necessary, without the necessity for bulkheading. The remaining shoreline bulkhead and dredging authorized under the above permit would be rendered unnecessary and replaced by the addition of two additional T-head piers and associated dredging at some indefinite time in the future. The additional piers and dredging are not involved in this permit modification application and are not before the Hearing Officer at this time. The Blount Island Channel of the St. Johns River, the St. Johns River and Clapboard Creek are classified as Class III surface waters of the state pursuant to Sections 17-3.081 and 17-3.121, Florida Administrative Code. It has been established by stipulation of the parties that the proposed modification of the dredge and fill permit will not adversely affect navigation nor the flow of water in the Class III state waters involved. It is also stipulated that the proposed modification will not adversely affect historical and archaeological resources pursuant to Section 267.061, Florida Statutes. It is stipulated as well that the discharge of effluent from the Dayson spoil site will not violate water quality standards at the point of discharge in the Fulton-Dames Point Cut. On March 22, 1989, the Florida Department of Environmental Regulation issued its intent to approve the proposed permit modification so as to allow the elimination of the previous requirement in the permit to monitor for copper at the site of the effluent discharge; the relocation of the Blount Island spoil site effluent discharge and the construction of a T-head pier on the southeast side of Blount Island adjacent to the Blount Island Channel. The Department did not initially grant the request to relocate the Dayson spoil site effluent discharge from the Corps of Engineer Channel (Dames Point Cut) to the mouth of Clapboard Creek. On January 31, 1986, Gate was issued permit No. 160462149, pursuant to Chapters 403 and 253, Florida Statutes, with an expiration date of January 31, 1991. It authorizes the dredging and filling on and adjacent to Blount Island referenced above. The permit authorizes those operations in two phases, consisting of new dredging of approximately 300,000 cubic yards in the existing slipway and test area to obtain a project depth of 40.2 feet mean low water. Maintenance dredging was authorized in the amount of approximately 1,850,000 cubic yards in the slipway to maintain the above-noted project depth. New dredging of no more than 3 million cubic yards from the northeastern and southern margins of Blount Island to a depth of 38 feet mean low water (MLW) and 20 feet MLW on the northeastern and southern portions of Blount Island respectively, with attendant maintenance dredging, was authorized. The permit also allowed he construction of shoreline bulkheads along the eastern and southern margins of Blount Island. That 1986 permit also required disposal of dredged material from both phases of the project into diked areas on Blount Island and the existing diked off-site disposal area known as the Dayson Site, near the mouth of Clapboard Creek. Effluent from both sites was to be discharged to the Fulton-Dames Point Cut. Effluent from the Dayson site was to be discharged to the Fulton-Dames Point Cut or routed by pipeline to the Blount Island disposal site for additional treatment prior to discharge. All dredging under the 1986 permit was to be done via a suction, cutter-head dredge apparatus, with the speed of the cutter-head to be controlled so as to prevent excessive turbidity; and with all dredged material to be placed in diked areas, with the effluent discharge being conducted over adjustable weirs. The dredging of the approximately 7,100 cubic yards of material associated with the modification application at issue will be performed with the same type of equipment. Both spoil disposal sites have sufficient capacity for disposal of the material involved with the construction of the T-head pier. The effluent or "de-watering water" generated from the disposal of the dredged material at the Dayson on site will be discharged through a pipe under the St. Johns River to a point near the confluence of the Dames Point Cut and the Old River Channel. That material will consist of approximately 10 percent dredged solid material and 90 percent water. The Dayson disposal site is surrounded by dikes 24 feet high and 120 feet wide at their base. They are so constructed that there will be no discharge of effluent from the Dayson disposal site to Clapboard Creek. Since 1974, over four and one-half million cubic yards of material have been disposed of at the Days on site without any violation of state water quality standards in the creek or the adjacent salt marsh. The entire 7,100 cubic yards of dredged material, together with related water could be placed in the Dayson disposal site without causing any discharge. Gate Maritime Properties, Inc. has a five-year lease agreement with Leadermar, Inc. which will operate the T-head pier as a berthing facility for the two ships. The lease was scheduled to commence July 22, 1989. Under the terms of the contract awarded by the Navy to Leadermar, Inc., Gate, or its lessee, is required to maintain a 110 foot, safe working area surrounding the vessels for operation of tugs, lighterage vessels and fendering operations. The contract with the Navy does not require, however, that the safe working area be maintained at a depth of minus 32 feet "mean lower low water" as shown by Gate Exhibit 6 in evidence. 1/ Given the findings made infra., concerning the lack of adverse water quality or public interest impacts caused by the dredging, and the paucity of any attendant suspension of bottom materials in the operation of the ships to be berthed at the proposed facility, the issue of whether the contract with the Navy requires a depth of minus 32 feet "mean low water" or "mean low low water", a reputed difference of 1.03 inches according to the rebuttal exhibit of Respondent Gate, neither Gate's position nor the Navy's reputed position regarding this apparent contractual dispute item, if carried out, would have any adverse water quality or public interest impact in the context referenced in these findings of fact and conclusions of law. The fact remains that Gate has applied for authority to recede from the massive dredging project presently authorized in the existing permit, to stipulate by this modification application that it only seeks to dredge 7,100 cubic yards of material in the area involved. Based upon the depth established by the marine survey conducted by Bennett, Wattels and Associates, there will be an adequate safe working area for tug boats, fuel barges and lighterage vessels, as well as the ships themselves, for operations involving the berthing facilities. See Gate Exhibit 5 in evidence. If the requested modification is granted, Gate will not dredge more than 7,100 cubic yards of material for construction of the pier and related facilities and in order to provide a safe working area as required under Leadermars contract with the Navy. Indeed the amount of material to be dredged for the construction and operation of the T-head pier was based upon the above- referenced Marine survey, unrefuted evidence in this record. The volume of material was calculated by using the Marine Survey depths and the "average end area method," a widely accepted method of such calculation in the marine engineering and construction field. Further, Gate adduced the only substantial evidence in this record concerning the issue of the amount of dredging involved or the extent of the dredged area, as that relates to the "safe working area" and other issues. Water Quality Gates' consulting experts performed various chemical and sediment analyses in the project area in order to establish a general composition of bottom sediments and to establish the likelihood of suspension of any toxic substances or pollutants in those sediments as a result of the dredging operation or the operation of the ships and berthing facilities. Those analyses, and their results, in evidence in this record, were unrefuted. The bottom sediments in the vicinity of the project area are predominantly fine sand with small fractions of silt. In general, the dredged material is most likely to be free from chemical or biological pollutants where it is composed of sand, gravel or other naturally occurring inert materials, as opposed to large percentages of organic materials, which were not shown to exist in the vicinity of the project site. Based upon the characteristics of the bottom sediments in the project area, there will be no re-entrainment of toxins or pollutants which night presently be sequestered in the sediments due to construction, dredging operations or the operations of the berthing facility and ships involved. An elutriate test was performed to predict the effect on water quality from temporary suspension of the bottom sediments during the dredging operation itself. Elutriate testing is a widely recognized, conservative estimate of contaminant releases, caused by dredging, into a water column. The parameters tested for are those specified in the Department's rules for Class III waters and include cyanide, mercury, silver cadmium, selenium, barium, beryllium, nitrogen, (unionized NH3, NO2, total TKN), fluoride, copper, iron, nickel, zinc, aluminum, pesticides, herbicides and PCBs (polychlorinated biphenyls). The elutriate test results did not reveal any excess ion of any of these parameters in terms of the state water quality standards or as to prevailing natural background levels. There are no PCBs, hydrocarbons, heavy metals or pesticides shown to be sequestered in the bottom sediments of the Blount Island Channel in the vicinity of the proposed project. The chemical analyses was performed on composite elutriate samples of sediments which came from the area of the T- head pier location and the area north of the pier, where the propellers of the ships will be located and operated during test trials, after the ships are berthed at the site. Site specific chemical analyses and core borings were taken and compared with historical data or studies for these sites and found to be consistent with them. There is no likelihood of sequestered contaminants in the bottom sediments which would be released, with deleterious effect on water quality, as a result of the action of the dredge equipment or the operation of the ships after the facility is installed. Cutter-head, hydraulic pipeline dredges are not significant generators of turbidity. They are an efficient means of performing dredging and are designed to loosen and remove material from the bottom substrate, without disturbing or redistributing the dredged material around the dredge apparatus in the water column. The use of the hydraulic pipeline dredge will result in minimal water quality disturbance and any dredge-induced turbidity will be of a transitory, short-term nature. It would be localized in the immediate vicinity of the dredge's cutterhead in any event. Ambient water quality conditions can be expected to return to normal background levels in a matter of hours following cessation of the dredging activity. It is estimated by Gate's consultant witnesses that the dredging activity might be accomplished in approximately one day. It has thus been established that the relevant stage water quality standards will not be violated by the action of the dredging equipment and the dredging operation itself. Water Quality Impacts of Facility Operation The two ships of the military sealift command which are to be berthed at the proposed T-head pier are 948 feet in length and approximately 105 feet in beam. They are equipped with two main engines and two propellers. The propellers are 22 feet, 11 and 9/16 inches in diameter. The ships will be in what is known as "reserved operating status". The ships will go through a dry- docking procedure at a local shipyard approximately every two years for major overhauls, repairs and painting. Such maintenance work will not be performed at the project site. The ships will, however, undergo periodic "dock trials" while berthed at the facility. The dock trials will be conducted on a quarterly basis if the vessels have not been out on a mission in that quarter of the year. The dock trial procedure calls for the main propulsion powerplants of the ships to be put into operation and evaluated. Both main engines are tested under this procedure for approximately one hour, at ten revolutions per minute (rpm) ahead and astern. The tests are to be conducted by civilian personnel retained by the Navy or its contractor, with all appropriate safety precaution being taken. These include, but are not limited to, the manning of the bridge during tests by a master or chief mate and by rotating one engine ahead simultaneously with the other engine being rotated astern. The ships are also equipped with onboard, internal sewage treatment plants so as to prevent the discharge of pollutants to state waters. Only routine maintenance or repair work will be performed on the ships at the lay birth facility. The ships will be refueled at the facility from time to time with "bunker c" or diesel fuel brought in by barges. The barges will be conveyed by tugboats of no more than 16 feet draft. The fueling operation will be governed by the U.S. Coast Guard regulations and are performed by Coast Guard certified and licensed personnel. Dr. Neal Boehnke was accepted as an expert in the field of chemical analysis of water and testified on behalf of the Petitioner. In his opinion, water quality in the facility of the proposed project is poor and may contain elevated hydrocarbon levels. His opinions, however, are based upon 1982 and 1983 reports of sampling results allegedly obtained by the City of Jacksonville Bioenvironmental Services Division and the DER, as well as the study entitled "Survey of Hydrocarbons and the Lower St. Johns River in Jacksonville." These documents were not introduced into evidence. While it is true that an expert may base his opinion on facts and data made known to him in the normal course of his practice at or before trial and that those facts or data may be relied upon by him in formulating his opinions, it must be demonstrated that those facts and data are "of a type reasonably relied upon by experts in the subject to support the opinions expressed." See Section 90.704, Florida Statutes. In this proceeding, it was not established by competent evidence or testimony at hearing that the facts or data derived from these documents were of such a type as to be encompassed by this statutory section and thus they cannot serve as a legitimate basis for Dr. Boehnke's opinion. They otherwise constitute inadmissible hearsay, not sufficient to support a finding of fact on the water quality impacts from the proposed project and they do not constitute corroborative or explanatory hearsay related to any accepted, competent, substantial evidence in this record for purposes of the hearsay admissibility provision in Section 120.58, Florida Statutes. Therefore, Dr. Loehnke's opinion concerning alleged elevated levels of hydrocarbons in the water at the project site is not credited and is rejected. Dr. Allan Niedororda was accepted as an expert in the fields of oceanography, hydrology and hydrologic assessment. He conducted a study on the potential impact to water quality in the Blount Island Channel which might result from the dock trials to be carried out as a part of the routine maintenance and testing of the ships. His study evaluated the degree to which the propeller wash from the dock trials might entrain and transport bottom sediments, any related pollutants and the effect of this entrainment on water quality in the surrounding water column. His study consisted of field sampling and measurements of currents in the area, laboratory analysis and related data analysis. Bottom sediment samples from the project area were analyzed for particle size and grain size distribution according to standard, scientifically accepted procedures. The bottom sediments in the area of the project site are characterized by a sandy sediment of a fine to medium particle size characteristic. The bottom sediments largely consist of clean sand and small gravels, with some silt composition. The propeller wash which will be generated by the testing of the ships engines was computed to have a speed of approximately one half foot per second. Maximum speed will occur about three propeller diameters behind the plane of the propeller itself or about 72 feet behind the propellers. The bottom tip of the propeller with which the ships are equipped will be six feet off the bottom of the channel at low tide. At the point the propeller wash contacts the bottom, its speed will be approximately two tenths of a foot per second. Such a velocity will not be of sufficient force to produce such sheer stress on the bottom sediments as to entrain them or, that is, to displace them upward into the water column. Dr. Niedororda established that, even if the propeller wash is added to the natural velocity of the water currents at the project site, there would be no entrainment of the bottom sediments which he sampled in the project area. It has also been established that the routine, minor maintenance of the ships and dockage facilities involved in the permit application and the fueling and other operations associated with the berthing, testing, entry and egress of the ships from the proposed berthing facility will occasion no water quality violations, so long as appropriate Coast Guard regulations attendant to fueling and the prevention of the deposition of refuse and other wastes into the waters involved are observed. Any grant of the proposed permit modifications should be conditioned upon the strict observance of those regulations and procedures, especially with regard to the potential for spillage during fueling operations. Public Interest Standards Section 403.918(2), Florida Statutes provides that a permit may not be issued unless the applicant provides the department with reasonable assurances that the project is not contrary to the public interest. In determining whether this is the case, the Department must consider and balance the following criteria: Whether the project will adversely affect the public health safety or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061; The current condition and relative value of functions being performed by areas affected by the proposed activity. It has been established by stipulation that the project will not adversely affect navigation or the flow of water and that the project will not adversely affect significant historical or archaeological resources. Unrefuted evidence adduced by Gate and the Department have established that the project will not adversely affect the public, health, safety, welfare or the property of others, if the project is constructed, installed and operated as proposed in the modification application and as proved in this case. The conservation of fish and wildlife, including endangered or threatened species, or their habitats, as well as fishing and recreational values and marine productivity in the project area will not be adversely affected. No harmful erosion or shoaling will be caused by the installation or operation of the project facility. In this connection, Dr. A. Quinton White, a member of the Board of Directors of the Petitioner, C.E.S., acknowledged in his testimony that the Manatee Protection Plan and Manatee Watch Program proposed to be inaugurated by Gate will adequately protect any Manatees frequenting the area. Manatees are an endangered species, but it has been established that the permit modification proposed, if installed and operated, will not adversely affect the conservation of Manatees or their habitat. The Petitioner adduced no evidence on this issue or any of the public interest criteria enumerated above. The area at the project site is characterized by fairly firm consolidated bottom substrata, characterized by very few submerged grasses. Due to the sandy, hard bottom in the project vicinity, there is a paucity of marine grass upon which Manatee could feed. Consequently, Manatees do not and are not likely to frequent the area involved at the project site as that might reflect on the likelihood of their injury or destruction due to operation of the ships and any attendant vessels. Dr. Niedoroda established that the project and the attendant operations of the ships will not cause harmful erosion or shoaling and witness Gary Tourtellotte, testifying for Gate, established that the effects of the construction and operation of the T-head pier on the benthic community and marine productivity in the vicinity of the project will not induce any adverse effect on those elements of the public interest standards involved. The Petitioner offered no credible or credited evidence of equivalent value which could contradict the evidence adduced by Gate on this aspect of the public interest standards. It is true that dredging of the bottom substrata will temporarily eliminate the benthic community within the dredged area itself. It was established by expert testimony, however, that the benthic community will rapidly re-colonize itself with similar organisms to a naturally occurring degree within approximately 6-12 months. The benthic community in the project vicinity is of a low density nature, with a low diversity of organisms. Those organisms occurring in the project site area are estuarine, marine benthic species commonly associated with sandy or silty bottom substrates. Because the area to be dredged is quite small or approximately .25 acres, and the dredging operations will be of short duration, approximately one day, the dredging operations will not have a significant adverse effect on the benthic communities occurring in the project area or in the adjacent St. Johns River. The dredging associated with the project will likewise not have a significant long-term adverse impact on fisheries resources or marine productivity of the Blount Island Channel or the St. Johns River. This is because the area to be dredged is minimal in size and does not contain critical marine benthic habitat. The turbidity generated will be minimal because the sediments are predominantly coarse sands and gravels. Because of this, any turbidity occasioned by the installation and operation of the proposed facility will be very brief and not of a sufficient significance as to violate water quality standards. In view of the hydrologic analysis in evidence concerning propeller wash effects, the bottom sediments at the ship mooring area will not be entrained or suspended in the water column to any significant degree due to propeller operation of the ships. Thus the benthic community in the mooring area for the ships will not be disturbed due to currents created by the operation of the propellers. In a similar vein, it has been shown that the dredging and operation of the T-head pier and mooring facilities, including the attendant conduct of periodic dock trials and the entry and egress of the ships will not violate the water quality criteria for biological integrity. Indeed, the periodic dock trials are shown to have no impact on the benthic community, the fisheries or marine habitat involved at the project site. It was neither shown that the dredging associated with the construction of the pier and berthing facilities will have any adverse impact on fin fish or shellfish in the project area. It has been established that the project will be of a permanent nature, but it has not been established that the current condition and relative value of the functions being performed by the areas affected by the proposed activity in terms of their functions as productive marine habitat, as furnishing fishing or recreational values and the like, will be adversely affected by the proposed project and attendant activity. Deletion of Copper Monitoring Requirement The 1986 permit authorizing the removal of approximately 3.4 million yards of dredged material with attendant extensive bulkheading in the Blount Island Channel requires also that Gate Monitor for copper every two weeks during discharges at the downstream boundary of the mixing zone for each point of a effluent discharge. Effluent from both the Blount Island and Dayson Disposal Sites is discharged into the Fulton Dames Point Cut. The Petitioner has stipulated that the discharge of effluent from the Dayson Spoils Site will not violate any water quality standard at that discharge point. Elutriate testing and other analyses submitted in support of the permit modification request to delete the copper monitoring requirement in the present permit have shown that there will be no violation of water quality standards as to copper, or any of the other water quality parameters involved due to any re-suspenions of bottom sediment during dredging. There will be no violation of water quality standards for copper, caused by the deposition of spoil, consisting of those bottom sediments, and the draining of effluent from the spoils site into the Dames Point Cut. The Department has independently verified the data submitted by Gate as a result of this testing and it has been established that there is no occurrence of any man induced pollutants in the sediments at the project site which will be deposited in the spoil site, (from which the effluent will be disposed of in the Dames Point Cut) which represents any elevation over natural background levels. The sediments to be dredged from the berthing area are not distinguishable from naturally occurring sediments and the copper values in the sediments to be dredged are no higher than those naturally occurring throughout the area. Thus there will be no adverse impact on the water quality occasioned by discharge of the effluent from the spoil site to the Dames Point Cut area due to copper occurring in the sediments or as to any of the other pollutants enumerated above. Thus, there has been no demonstrated necessity to continue monitoring the effluent from the spoil site for copper. In this regard, the Petitioner presented no evidence at hearing concerning the issue of whether copper monitoring should be continued or not. Cumulative Impact Blount Island was created in the 1950's and 1960's by the filling of its area with spoil material during the U.S. Army Corps. of Engineers' construction of the Fulton-Dames Point Cut-Off Channel. Since that time, port facilities and an industrial complex have been constructed on Blount Island. It is one of the principle port facilities for the City of Jacksonville. Under the 1982 DER dredge and fill permit issued to Off-Shore Power Systems, and later transferred to Gate in 1986, the developed area of the island adjacent to the original St. Johns River Channel (the Blount Island Channel) was required to be bulk-headed and the channel dredged to -38 feet MLW. The amount of material to be dredged in the old channel of the St. Johns River for construction of the vertical shoreline bulk head totalled approximately 3.4 cubic yards. The T-head pier involved in this modification proceeding, if constructed, would replace 1,000 linear feet of that shoreline bulkhead authorized by the present permit and would substantially reduce the amount or quantity of material to be dredged. Construction of the T-head pier, instead of the permitted shoreline bulkhead, will minimize dredging and the environmental impact of the facility. Gate has elected to rescind its plans to construct the shoreline bulkhead along the eastern shore of Blount Island, as authorized under the existing dredge and fill permit. Gate instead intends to seek future modification of its existing dredge and fill permit to substitute at least 2 additional T-head piers for all of the shoreline bulk head authorized for the eastern shore of Blount Island. The construction of the additional T-head piers will require substantially less dredging than is authorized under the existing permit. Instead of the 3.4 million cubic yards of dredged material authorized under the existing permit, associated with installation of the shoreline bulkhead, the amount of material to be dredged, if indeed 2 additional T-head piers were applied-for and constructed, would amount to only 269,000 estimated cubic yards, as opposed to the originally authorized 3.4 million. Kevin Pope, the DER witness, established that there are no other projects in the area, or reasonably expected to be located in the project area, which would create impacts in addition to or cumulative with the proposed permit modification project so as to create adverse water quality impacts or which would make this project, because of cumulative impact, contrary to the public interest. There are no other dredge and fill projects in the area of the proposed T-head pier which would adversely impact the waters of the Blount Island Channel and the St. Johns River. The proposed modifications are shown not to likely cause any adverse environmental results and, in fact, will result in an environmental benefit as represented by the agreed-upon recession from the extensive dredging and bulkheading authorized by the present permit. No evidence was adduced by the Petitioner to contravene that adduced by Gate and the Department, which establishes the lack of any adverse cumulative impacts to be occasioned by the proposed project, both as to water quality standards and the public interest standards involved in this proceeding.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore, RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation approving the proposed modification to permit number 160462149 with the proviso that the conditions contained in the above findings of fact and conclusions of law be incorporated as specific conditions in the modified permit, including the additional condition agreed to at Final Hearing that the Manatee Protection Plan and Manatee Watch Program will be inaugurated and be incorporated as a specific condition in the modified permit. DONE and ENTERED this 11th of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF 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 12th day of October, 1989.
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
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 granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, 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 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 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 Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether Respondent HBJ Investments, Inc. is entitled to an environmental resource permit to facilitate the construction of the Betty Jones Spa on property adjacent to property owned by Petitioner.
Findings Of Fact On November 17, 1998, Respondent HBJ Investments, Inc. (Applicant) filed an application (Application) with the South Florida Water Management District (District) for an environmental resource permit (ERP). The Application is for a Standard General (minor systems) ERP. The Application states that the proposed surface water management system is to serve a 11,564 square foot health spa with associated infrastructure improvements, such as parking, utilities, landscaping, and a stormwater detention facility. Section H of the Application responds to form questions that are intended to determine whether an application meets the requirements of a standard general ERP for a minor surface water system. Among the threshold requirements is that the proposed discharges from the site "will meet State water quality standards, and the surface water management system will meet the applicable technical criteria for stormwater management in the Basis of Review." Another threshold requirement is that the proposed activities will not cause significant adverse impacts individually or cumulatively. The Application states that the water quality treatment system will be on-line detention with effluent filtration. The Application and related documents describe the system in greater detail. The system consists of drains, inlets, a swale, an underground vault to provide effluent filtration through a sand filter and perforated pipe, an internal oil and grease skimmer, a control box, and a 15-inch diameter reinforced concrete pipe providing outfall from the vault. By Notice of Final Agency Action for Approval dated February 4, 1999, the District proposed the issuance of a "Standard General for Minor Surface Water Management Systems" ERP for the construction, operation, and maintenance of the proposed system (Permit). Permit Specific Condition 2 requires: "The discharges from this system shall meet state water quality standards as set forth in Chapter 62-302 and Rule 62-4.242, F.A.C., for class waters equivalent to the receiving waters." Permit Specific Condition 8 requires, for vault systems, that the system become dry within 72 hours after a rainfall event. Permit Specific Condition 9 requires the operation and maintenance entity to submit inspection reports for inspections to be performed every 18 months. Permit Specific Condition 10 requires a water quality monitoring program for systems, such as the proposed system, using an internal oil and grease skimmer. This condition obligates HBJ to take three samples during each of the first two annual rainy seasons following the commencement of operation of the system. The monitoring must take place immediately after rainfall events of sufficient magnitude to cause a discharge from the outfall structure. If the discharged water does not meet water quality standards for oil and grease, as established by Rule 62.302.510(3)(k), Florida Administrative Code, then the permittee must alter the system to attain compliance for this water quality parameter. The subject parcel is bounded by Fourth Avenue South on the north, First Street South on the east, Second Street South on the west, and an unnamed alley on the south. This site is just south of Al Lang Field. In its present state, the parcel is nearly entirely pervious surface. Some of the stormwater flowing onto the parcel percolates into the soils, and the remainder flows into City of Saint Petersburg stormwater sewers, from which it is carried about two city blocks to Tampa Bay, where it is discharged. The parcel was formerly used for single-family residential housing, but is now mostly cleared. The runoff from the site presently carries mostly sediments. After the proposed construction, 79 percent of the parcel would consist of impervious surface. Although small areas of the developed parcel might remain vegetated, and thus add nutrients into the runoff, the primary change in the runoff will consist of the addition of automobile-related contaminants, including, but not limited to, oil and grease. HBJ's engineer designed the proposed surface water management system to treat the first one-half inch of stormwater runoff. The engineer's report notes, in a letter dated November 13, 1998, that siltation in the vault reduces storage volume, so it is "required that cleaning be done every six (6) months." The report suggests the removal of grass clippings from the parking area, so that they are not transported to the retention vault. The report suggests that the underdrain system should be backflushed periodically, and the control structure should be checked monthly and all debris cleared. In general, the system would collect runoff from the roof downspouts and parking area. The system would provide treatment of the first 1/2 inch of runoff by capturing it in the vault, where it would filter through a layer of several cubic feet of sand before entering a perforated pipe leading to the City stormwater sewer. Runoff from rainfall in excess of the first 1/2 inch would receive little, if any, treatment. It is implicit that the first 1/2 inch of rainfall contains the first flush of contaminants from impervious surfaces. Nothing in the record specifies the efficacy of treatment provided by this standard, although it obviously is less than 100 percent efficient because of the higher standard imposed upon systems discharging into Outstanding Florida Waters (OFW). However, a pre- and post-development analysis of the runoff from the subject parcel would reveal an unknown additional volume of runoff from the developed site, due to the replacement of pervious surface with impervious surface. It is unclear whether the developed site would generate a reduced volume of sediments in this increased volume of runoff. Although little vegetated surface would exist post-development, the record does not reveal the extent to which the pre-development pervious area fails to capture the sediments prior to their entering the City stormwater system. More problematic are the automobile-related contaminants, such as oil and grease, that will be introduced into the runoff by the developed site. Presumably, the runoff from the undeveloped site contains few, if any, such contaminants. Thus, any automobile-related contaminants discharged from the surface water management system would likely be an increase from the amount of such contaminants presently discharged from the site. The runoff from the developed site would enter the City of Saint Petersburg stormwater sewer system and would be released in the nearby Tampa Bay. The record does not disclose the stormwater sewer line transporting the discharge, nor the outfall of the line into Tampa Bay. By stipulation, the parties agreed that Tampa Bay is an OFW and that discharge from the developed site would enter the City of Saint Petersburg stormwater sewer system. Tampa Bay is classified as Class II waters, which are approved for shellfish harvesting. The record does not disclose the point of discharge of the City stormwater line that would receive discharge from the developed site. However, the proximity of the site to Tampa Bay strongly suggests that the outfall would be in Tampa Bay, and it is only slightly less probable that the outfall would be at a point in the bay in the immediate vicinity of the site. The record suggests that the waters of Tampa Bay likely to receive the discharge from the site are impaired. For example, water quality conditions mandated the closing of "Lower Tampa Bay" to shellfish harvesting, for an unstated period of time, effective at sunset on July 5, 1999. Also, the Department of Environmental Protection listed two bayous in the immediate vicinity of the site as noncompliant with federal water quality standards due to excessive coliform bacteria counts and nutrients and insufficient levels of dissolved oxygen. The Basis of Review (BOR) is a document adopted by the District. It contains specific "criteria" for permitting. However, as BOR Section 1.3 explains, the goal of these criteria is to meet District water resource objectives, and the criteria are "flexible." Alternative methods of meeting "overall objectives" may be acceptable, depending upon the "magnitude of specific or cumulative impacts." The criteria, which are flexible, are the means by which the District assures that it meets its objectives, which are not flexible. BOR Section 3.1.0 recognizes that "a wide array of biological, physical and chemical factors affect the functioning of any wetland or other surface water community. Maintenance of water quality standards in applicable wetlands and other surface waters is critical to their ability to provide many of these functions." BOR Section 3.1.0 elaborates: "It is the intent of the Governing Board [of the District] that the criteria in subsections 3.2 through 3.2.8 be implemented in a manner which achieves a programmatic goal and a project permitting goal of no net loss of wetlands or other surface water functions." BOR Section 3.1.1 requires that an applicant provide "reasonable assurance" of several things. BOR Section 3.1.1(a) requires that "a regulated activity will not adversely impact the value of functions provided to fish, wildlife and listed species, including aquatic and wetland dependent species, by wetlands and other surface waters and other water related resources of the District. (paragraph 40D-4.301(1)(d), F.A.C.) (see subsection 3.2.2)." BOR Section 3.1.1(c) provides that: a regulated activity will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-3, 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of Sections 62-4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300 and any special standards for Outstanding Florida Waters . . . set forth in sections 62-4.242(2) and (3), F.A.C., will be violated (paragraph 40D-4.301(1)(e), F.A.C.). BOR Section 3.1.1(d) provides that "a regulated activity . . . located in close proximity to Class II waters . . . will comply with the additional criteria in subsection 3.2.5 (paragraph 40D-4.302(1)(c), F.A.C.)." BOR Section 3.1.l(f) provides that "a regulated activity will not cause adverse secondary impacts to the water resources (paragraph 40D-4.301(1)(f), F.A.C.) (see subsection 3.2.7)." BOR Section 3.1.1(g) provides that "a regulated activity will not cause adverse cumulative impacts upon wetlands and other surface waters . . . (paragraph 40D-4.302(1)(b), F.A.C.) (see subsection 3.2.8)." BOR Section 3.2.4 provides that an applicant must provide "reasonable assurance that the regulated activity will not violate water quality standards in areas where water quality standards apply. . . . The following requirements are in addition to the water quality requirements found in Chapter 5." BOR Section 3.2.4.2(c) provides that the applicant must address the long-term water quality impacts of a proposed system, including "prevention of any discharge or release of pollutants from the system that will cause water quality standards to be violated." BOR Section 3.2.5 provides: The special value and importance of shellfish harvesting waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shell fish is recognized by the District. In accordance with section 3.1.1.(d), the District shall: (b) deny a permit for a regulated activity in any class of waters where the location of the system is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the regulated activity will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters. BOR Section 3.2.7 provides that an applicant must provide "reasonable assurance" that "a regulated activity will not cause adverse secondary impacts to the water resource" as described in this section. However, this section explicitly disregards negligible or remotely related secondary impacts. BOR Section 3.2.8 provides that an applicant must provide "reasonable assurance" that "a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters " BOR Section 4.2 limits off-site discharge "to amounts which will not cause adverse off-site impacts." For a proposed activity within an open drainage basin, as is the subject proposed activity, the allowable discharge is (presumably the greatest of) any amount determined in previous District permits, the legally allowable discharge at the time of the permit application, or historic discharge. Historic discharge is the peak rate at which runoff leaves a parcel of land by gravity under existing site conditions. BOR Section 5.1 requires that proposed discharges meet applicable state water quality standards. This chapter of the BOR requires that proposed systems satisfy certain quantitative criteria, depending on the type of water treatment system. However, BOR Section 5.1 warns: in certain instances a design meeting those standards may not result in compliance with the state water quality standards referenced above. Unless an applicant has provided reasonable assurance that a design will not cause or contribute to a violation of state water quality standards, the District may apply more stringent design and performance standards than are otherwise required by this chapter. Projects designed to the criteria found in this section shall be presumed to provide reasonable assurance of compliance with the state water quality standards referenced above. . . . BOR Section 5.2 sets quantitative criteria for various types of surface water management systems. The subject system is a detention, on-line treatment system. BOR Section 1.7.5 defines "detention" as the "delay of storm runoff prior to discharge into receiving waters." BOR Section 1.7.28 defines "on-line treatment system" as a "dual purpose system that collects project runoff for both water quality and water quantity requirements. Water quality volumes are recovered through percolation and evaporation while water quantity volumes are recovered through a combination of percolation, evaporation, and surface discharge." BOR Section 5.2.b applies to "[d]etention with effluent filtration system (manmade underdrains)." BOR Section 5.2.b.1 provides that proposed activities draining less than 100 acres "shall treat the runoff from . . . the first one-half inch runoff." BOR Section 5.2.b.6 adds: "Maintenance of filter includes proper disposal of spent filter material." BOR Section 5.2.c applies to "on-line treatment system[s]." This section also requires the treatment of the first one-half inch of runoff. However, BOR Section 5.2.e provides: Projects discharging directly into Outstanding Florida Waters (OFW) shall be required to provide treatment for a volume 50 percent more than required for the selected treatment system . . .. Applicant has provided reasonable assurance that the proposed surface water management system would not cause adverse water quantity impacts to receiving waters and adjacent lands and would not cause flooding. In terms of water quantity, the proposed system is designed to meet the requirements of the ten-year storm. The subject site is a short distance from Tampa Bay, and, as already noted, it is very likely that the runoff discharges into Tampa Bay at a location not far from the subject site. Thus, water quantity and flooding are irrelevant to this case. However, Applicant has not provided reasonable assurance that the proposed surface water management system would not cause adverse impacts to the value of functions provided to fish and wildlife by nonwetland surface waters and would not adversely affect the quality of receiving waters. The receiving waters of the discharge from the subject site are Class II waters that are OFW. However, these waters are also impaired sufficiently as to be in violation of certain federal water quality standards and to require the closure, at least at times, of shellfish harvesting. There are three deficiencies in the proposed permit. First, it does not specify, in clear and enforceable language, an inspection and maintenance program, which includes the undertaking by the Applicant to backwash the system at specified intervals, to replace the sand filtration medium at specified intervals, to dispose of the sand filtration medium so that the captured contaminants do not reenter waters of the state, to monitor the water discharged from the oil and grease skimmer at specified intervals following the first two years' monitoring, and generally to take any necessary action to correct deficiencies uncovered from inspections. Second, the treatment of the first 1/2 inch of runoff is insufficient for the system, which is discharging directly into an OFW. BOR Section 5.2.e raises this standard to 3/4 inch. Direct discharges requires the identification of the first receiving waters. Receiving waters are waters of the state that are classifiable as Class I-V waters. Receiving waters thus do not include waters in a stormwater sewer pipe, which are not waters of the state nor are they classifiable. Water quality determinations often require comparison of the quality of the discharged water with quality of the receiving waters. The off-site piping of the discharged water does not preclude such comparison. In such case, the analysis extends to the first receiving waters into which the pipe empties. The District's argument to the contrary invites circumvention of those provisions enacted and promulgated for the protection of OFWs. For example, several owners of land abutting an OFW could establish a jointly owned stormwater sewer line so that the point of comparison for their discharge would be the waters in the pipe rather than the OFW. Third, Applicant failed to submit a plan or propose a procedure demonstrating that the proposed activity would not have a negative effect on the Class II waters of Tampa Bay and would not result in violations of water quality standards in these Class II waters. The District failed to determine the outfall of the discharge from the subject site, so it failed to enforce the requirement of the plan required by BOR 3.2.5 for the protection of the special value of Class II waters. Although required to account for cumulative impacts, the plan will necessarily reflect the characteristics of the site--e.g., 1.6 acres contributing largely automobile-based contaminants and not nutrients--and the characteristics of the receiving waters--e.g., Tampa Bay is vast and relatively impaired, though, in the vicinity of the subject site, more likely due to excessive nutrients.
Recommendation It is RECOMMENDED that the Southwest Florida Water Management District enter a final order denying the ERP application of HBJ Investments, Inc. DONE AND ENTERED this 23rd day of December, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 23rd day of December, 1999. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 John R. Thomas Wyckoff & Thomas, P.A. 233 Third Street North, Suite 102 Saint Petersburg, Florida 33701 Michael Jacobs Director, Legal Affairs 25 Second Street North, Suite 160 Saint Petersburg, Florida 33701 Anthony J. Mutchler Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Background Respondent, Deep Lagoon is the owner and developer of real property contiguous to state waters in the Caloosahatchee River at Fort Myers, Lee County, Florida. When Deep Lagoon purchased the property in 1980, the marina had been in existence for an extended period of time. An aerial photograph (Petitioner's Exhibit 18) shows a marina at this location in February 1966. The owners of Deep Lagoon represented at hearing that there are photographs of a marina in this location in 1955. The present owners have improved the facilities and continue to operate a full service marina on site. The existing site plan (Deep Lagoon's Exhibit 3) shows that the project contains three canals: the northern canal, main canal, and southern canal. There is a basin at the eastern end of the main canal. The uplands beyond the northern canal are part of a residential development known as the "Town and River" area. The finger peninsula between the northern and main canal is known as the east-west peninsula. The smaller land area northeast of the southern canal and south of the basin is referred to as the marina dealership and boat storage area. This last area is adjacent to McGregor Boulevard. The marina waters are designated as Class III waters by the state. Deep Lagoon Marina is in Deep Lagoon, a natural, mangrove-lined, deep channel in the south shore of the river. The three canals which are part of the marina, are the result of historic dredge and fill activity which created most of the uplands west of McGregor Boulevard. Except for the Iona Drainage District ditch which discharges into the northern canal, the canal water system is a dead-end system with little circulation from a hydrographic standpoint. Generally, the water sloshes back and forth within the canal system. As a result of poor water circulation within the system, sediments have built up in the canal bottoms and in the basin. Although different historical incidents, such as ship building, the burning of a large building on the east- west peninsula and the receipt of agricultural and highway drainage into the northern canal, may have caused some of the build-up, marina activities and the use of the canals for marina purposes have contributed significantly to the problem. Water quality samplings within the canals and basin indicate that State Water Quality Standards are currently being violated for dissolved oxygen, oils and greases, total and fecal coliform, copper, lead, mercury and tributylin. Sediments in the canals and basin are contaminated by lead, copper, cadmium, chromium and mercury. The canals and basin are currently devoid of seagrasses, oyster beds and benthic organisms. The West Indian Manatee, an endangered species, inhabits the Caloosahatchee River. Manatees are frequently seen in the Deep Lagoon area and are found within the northern canal of Deep Lagoon Marina. Since the marina was purchased by its current owners, maintenance of the property has improved. The management has demonstrated a responsible approach to many environmental concerns that are usually associated with marinas. For example: Gas attendants pump fuel to reduce gasoline spillage. The marina's mechanical work is confined to one area in order to maintain clean up controls. Boat cleaning is done with water only. Boats are repainted with a low copper-based paint to reduce the harmful effects of paint leaching on water quality. On December 9, 1986, Deep Lagoon applied to DER for a permit to renovate and expand the existing marina operation. The application was completed on March 7, 1988. The application, Deep Lagoon's Exhibit 1, consists of a proposal to: (1) rehabilitate the existing 61 wet slips and construct 113 new wet slips, which include 14,440 square foot of docks and boardwalks in the northern and southern canals, as well as the main basin; 2) excavate material for a circulation channel between the main basin and northern canal; 3) dredge contaminated sediments from the canals and the basin; and 4) place clean fill material within the canals and basin to replace the dredged fill, and to create a more shallow canal system for circulation and flushing purposes. In addition to the proposals initiated by Respondent Deep Lagoon, the Intent to Issue requires Deep Lagoon to: 1) construct a stormwater treatment system; 2) redesign and construct the boat wash area so that all runoff is directed to a collector and filtering system; 3) relocate and upgrade existing fuel facilities; 4) install an oil/fuel containment system; and 5) install sewage pumpout facilities. To alleviate concerns about the proposed project's effect on manatees, Respondent Deep Lagoon has worked with state and local governments to develop a manatee protection plan for the surrounding portions of the Caloosahatchee River. The Department of Natural Resources reviewed the plan, and recommended issuance with the restriction that the use of the additional slips be limited to sailboats until the manatee protection plan is enacted and enforced. The Respondent Deep Lagoon has agreed to accept all of the additional requirements and recommendations placed upon a dredge and fill permit by Respondent DER and the Department of Natural Resources. The Respondent DER has permitting jurisdiction under P.L. 92-500, Chapter 403, Florida Statutes, and Rule 17-12.030, Florida Administrative Code. Deep Lagoon constitutes waters of the state over which DER has dredge and fill permitting jurisdiction. In its review of Respondent Deep Lagoon's application for a dredge and fill permit, Respondent DER applied Section 403.918(2)(b), Florida Statutes, which provides that where existing ambient water quality does not meet standards, a permit may be issued if the applicant can demonstrate that the project will cause a net improvement of the water quality for those parameters which do not meet standards. The conditions placed upon the permit allow Deep Lagoon to construct all of the additional boatslips requested in a one-phase construction project. Fifty-six of the additional wet slips can be occupied immediately. The types of boats placed in these slips will be determined by the outcome of the proposed manatee protection plan. If the plan is enacted and enforced, motorboats may be placed in these slips. Until this occurs, only sailboats can be placed in these slips. If water quality monitoring shows that there has been a significant net improvement at the end of a year of the additional wet slip use, the remaining 57 slips may be occupied. The results of the water monitoring will be compared with water quality tests to be taken before construction or renovation begins for baseline water quality study purposes. Water quality monitoring will continue for two years after the marina reaches 80 percent occupancy, or until a year after increased motorboat occupancy is allowed. If monitoring continues to show a net improvement in water quality over baseline conditions, the slips shall be considered permanent. If a net improvement is not demonstrated for either phase, Deep Lagoon is required to present a possible solution to DER. No remedial action shall be taken without DER approval. DER may require slip removal if other remedial action is not successful. The total cost to the marina for the expansion project is estimated to be about 3.7 million dollars. Net profit for the marina is expected to increase from one hundred and six thousand dollars ($106,000.00) to three hundred and fifty to four hundred thousand dollars ($350,000.00 to $400,000.00) annually. The Petitioners are the owners of single family homes within the "Town and River" area, which is adjacent to the north of the proposed expansion and renovation project. The Petitioners dispute the appropriateness of the Intent to Issue filed by Respondent DER on July 17, 1988. In support of their position, the Petitioners identified a number of areas of controversy which they contend should cause the Respondent DER to reverse its preliminary decision to grant the dredge and fill permit on this project. These areas of controversy are: Whether the proposed activity complies with the water quality requirements of Section 403.918(1), Florida Statutes, and the federal antidegradation regulation, 40 CFR Section 131.12, which the Petitioners contend is applicable to this case pursuant to the Clean Water Act water certification. Whether the proposed project complies with the public interest criteria set forth in Section 403.918(2)(a), Florida Statutes, and whether it will adversely affect the West Indian Manatee, an endangered species. Whether the proposed manatee plan and water quality mitigation proposal meet applicable statutory and rule criteria. Whether the proposed project will cause unacceptable and unpermittable cumulative impacts and secondary impacts, pursuant to Section 403.919, Florida Statutes and other applicable law. Whether DER can certify this project pursuant to 33 USC Section 1341 of the Clean Water Act when water quality standards will not be met in the waters of the Deep Lagoon Marina. Whether the permit condition of a "net water quality improvement" is a vague and unenforceable condition. The Intervenor has intervened in the Petitioner's formal administrative proceeding for a factual determination as to whether the proposed project will adversely affect the conservation of the West Indian Manatee by direct, secondary or cumulative impacts. Water Quality The testing results from the water quality samplings taken for purposes of permit application review, may not accurately represent the mercury number at all the sampling sites. The zinc number from the samplings taken in the northern canal (which receives discharge from the Iona Drainage District ditch) is so high that the number may not be an accurate representation of the zinc content in the water column at this location. The water samplings taken, and the future samplings to be taken for baseline purposes, do not take into consideration the following variables: a) that there are two distinct seasons in the area, wet and dry; and b) that the marina is not a completely closed, dead-end system. The Iona Drainage District ditch occasionally overflows or discharges into the northern canal. Expert opinion presented at hearing established that: a) baseline sampling should include control sites on the eastern side of the berm of the Iona Drainage District ditch, which is not owned by Respondent Deep Lagoon; and b) baseline samplings should be taken during the two seasons. Wet season samples should be compared against the wet season baseline, and dry season samples should be compared against the dry season baseline. Short term water quality impacts of the proposed project include the potential for limited turbidity generated by dock construction, excavation of the contaminated sediments and circulation channel, and the shallowing of the canals. The installation and use of turbidity curtains around the entire construction area during the construction, dredging, and shallowing should limit the short term violations regarding water turbidity. The overall increase in water quality which will be gained upon the removal of contaminated sediments in conjunction with the creation of a better flushing system within the marina complex, is in the public interest and far outweighs any temporary impact on turbidity, which will be minimized by the turbidity curtains. Oils and Greases It is impossible to determine all of the source of oil and greases found in the waters surrounding Deep Lagoon. Stormwater from the uplands area may bring oil and greases into the northern canal waters from the Iona Drainage District ditch, which appears to receive stormwater runoff from the adjacent highway and the fueling facilities at the adjacent 7/Eleven Store. However, historic fueling operations at the marina site, and the current marina operations have contributed significantly to the accumulation of oil and greases in the entire canal system. The proposed stormwater treatment system at the marina, which has already been permitted, is expected to reduce the amount of oils and greases which will enter the waters from the marina site. The runoff from the land operations, such as boat fueling, servicing and boat washing, and automobile parking, will be directed into various collectors for treatment within a stormwater treatment system prior to discharge into the waters of Deep Lagoon. The designer of the system anticipates that the amount of oils and greases entering the waters of the land operations will be reduced by 90-95 percent. It has not been determined if the new cut in the easterly portion of the east-west peninsula will affect the water exchange between the northern canal, the basin, and the Iona Drainage District ditch. Total and Fecal Coliform The total and fecal coliform in the waters of Deep Lagoon Marina are due primarily to the presence of these pollutants in the stormwater runoff from upland areas of the marina facility. Other potential sources of total and fecal coliform are improperly functioning septic tanks and drainfields at the marina facility, and discharges from marine toilet facilities on boats using the marina. Deep Lagoon will install an on-site central sewage collection and transmission system that will eliminate the use of the septic tanks and drainfields. All sewage from the collection and transmission system will be discharged into the system of a private utility company for treatment off-site. Deep Lagoon is required to install a sewage pumpout facility for use by boats with marine toilet facilities, thereby minimizing discharges from these on board toilet facilities into the waters of the marina. In addition, every boat slip occupied by a liveaboard vessel at the marina will have a permanent direct sewage connection to the central sewage collection system. As a result of the construction of the stormwater treatment system, the elimination of the septic tanks and the construction of a central sewage system, and the installation of sewage pumpout facilities, there will be a reduction in the levels of total and fecal coliform in the waters of Deep Lagoon Marina. Copper The principal source of cooper in the waters of the Deep Lagoon Marina is runoff from the boat cleaning and painting operations at the marina facility. An additional significant source of copper to these waters is the bottom sediments which are highly enriched with copper from past marina operations at this location. Copper and other metals, including lead and mercury, enter the water column through leaching from the sediments and the suspension of the bottom sediments caused by the movement of boats within the marina. Minor sources of copper to these waters include brass or bronze fittings on vessels and leaching from antifouling bottom paints of boats and treated pilings used to construct docks. Pursuant to the Intent to Issue, Deep Lagoon is required to hydraulically dredge the top six to twelve inches of contaminated sediments from substantial portions of the northern and southern canals and the main basin. Due to the construction of the stormwater treatment system and the removal of the contaminated bottom sediments, there will be a reduction in the levels of copper in the waters of Deep Lagoon Marina. However, this will occur only if the copper does not return to the water through a leaching process caused by soft rainwater. Limestone, or calcium carbonate is necessary in the stormwater treatment soil to prevent leaching. Such conditions were not demonstrated at hearing. The anticipated increased levels of dissolved oxygen in these waters will also decrease copper concentrations in the water column by increasing the tendency for dissolved copper to become insoluable, settle out and become trapped in the sediments. This reduction in copper concentrations will offset any minor increased loading of copper concentrations through leaching from the bottoms of the additional boats expected to utilize the expanded marina. Lead The primary source of lead to these waters is from past use of leaded gasoline and its residues, which enter the water from stormwater runoff. It is impossible to determine all of the sources of the stormwater runoff due to the entry of the Iona Drainage District ditch into the northern canal during certain stormwater events. Lead also enters the water column of these waters from the contaminated bottom sediments. As a result of the construction of the stormwater treatment system, the dredging of the contaminated bottom sediments, and the reduction in use of leaded gasoline, by all boaters and automobiles, there will be a reduction in the levels of lead in the waters of the Deep Lagoon Marina. Mercury Other than the contaminated sediments themselves, there is no apparent source of mercury in these waters. The removal of the contaminated sediments will result in a reduction in the levels of mercury found in these waters. Zinc Even if the water quality data for zinc at the one sampling station previously mentioned is accurate, the construction of the stormwater treatment system, and the dredging of contaminated bottom sediments should cause a net improvement in the quality of these waters by reducing the zinc content. Dissolved Oxygen The decreased levels of dissolved oxygen in the waters of Deep Lagoon Marina are due principally to biochemical oxygen demanding substances that enter the water column from stormwater runoff. The runoff is mainly from the marina uplands, but also includes the Iona Drainage District ditch. Contaminated sediments also exert biochemical oxygen demands on the water column of these waters. The discharge points of the stormwater treatment system will be constructed so as to produce a cascading effect on the discharged water. This cascading effect will introduce additional dissolved oxygen to the waters of Deep Lagoon Marina. Deep Lagoon is required to excavate a circulation channel to connect the northern canal and the main basin. Deep Lagoon is also required to shallow the northern canal -5.6 ft. NGVD and the southern canal and main basin to -.6.6 ft. NGVD. The excavation of the flushing channel and the shallowing of these waters will improve the flushing of the water circulation of the Deep Lagoon Marina. The construction of the stormwater treatment system, the cascading effect of the stormwater discharge points, the removal of the contaminated sediments, the excavation of the circulation channel, and the shallowing of the canals and basin will result in a net improvement in the levels of dissolved oxygen in the water of Deep Lagoon Marina. Tributyltin Tributyltin is a toxic compound formerly used in paints used to maintain the bottom of boats. Levels of tributyltin in the waters of the Deep Lagoon Marina are in violation of the state "free-form" standards. The proposed project, with all the required modifications will result in a reduction in the levels of tributyltin in these waters. When the sediments are dredged from the marina bottoms, samples need to be subjected to an EPA toxicity test to determine whether the sediments have become hazardous through the dredging process. If the sediments have become hazardous, they must be disposed of through a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, this soil should be tested to determine if it is "clean fill." The area where the cut will be made has been used for boat sanding in the past, and may contain contaminated materials. The evidence presented at hearing has demonstrated that the dredging, the new water circulation and flushing design for the marina, and the stormwater treatment system will cause a net improvement in water quality once renovation and expansion of the marina is completed. The effect of stormwater discharge from the Iona Drainage District ditch into the northern canal is not known at this time. The effect of the new water circulation and flushing patterns on the berm between the drainage ditch and the northern canal is not known at this time. Public Interest Standard - Section 403.918, Florida Statutes Regarding the criteria listed in Subsection 403.918(2), Florida Statutes, the parties have stipulated as follows: The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The proposed project will be of a permanent nature. The project will not adversely affect significant historical or archaeological resources. The evidence shows that the adjacent waters of the Caloosahatchee River support manatees year round with a large over-wintering population. The Caloosahatchee River has been designated as critical habitat for the West Indian Manatee, an endangered species. The Department of Natural Resources Bureau of Marine Resources studies have shown that approximately twenty- five percent (25%) of manatee deaths are due to boat collisions. The proposed expansion of this marina would increase boat traffic in an area of heavy manatee usage. It was established that manatees are found more often in the shallower areas of the river, outside of the main channel. Deep Lagoon has been instrumental in providing manpower and financial resources for the preparation of the Caloosahatchee River Boat Operation and Manatee Protection Plan. The principal goal of the plan is to protect the manatee in the Caloosahatchee River by regulating the speed of boats outside the marked channel and a buffer zone of the Caloosahatchee River. (Deep Lagoon Exhibit 5). The plan has received support from the Department of Natural Resources, and is currently being reviewed by the Lee County Board of County Commissioners for preparation of the plan. Pursuant to DER's Intent to Issue, the plan is to be considered a part of the proposed permit. Occupancy of the additional 113 wetslips is restricted to sailboats until such time as the plan is implemented and enforced on the Caloosahatchee River. Upon demonstration to the Department that the plan is being implemented and enforced, Deep Lagoon may increase the powerboat occupancy of the marina up to a maximum of 75 percent of the total allowed occupancy. It was established that one of the principal threats to manatees is from fast moving powerboats. By controlling the speed of boats in those areas where manatees are most frequently found, the river can tolerate more boats and still not harm the manatees. Without the implementation and enforcement of the plan, the proposed project with its projected increased number of boats would likely result in an increase in the number of boat kills of manatees if the additional boats are powerboats. However, if the plan is implemented and enforced, the proposed project at Deep Lagoon, including additional upland storage of boats, will not have negative impact on the manatee, even when considering the cumulative impacts of other existing and proposed boating facilities. If only sailboats are allowed in the additional slips, the proposed project will not negatively impact the manatee population. In addition to the plan, through the conditions of the Intent to Issue, Deep Lagoon has agreed to enter into a long-term agreement to limit powerboat occupancy at the marina to a maximum of 75% of the total 174 wetslips. Deep Lagoon has also agreed to operate all vessels associated with the construction of the project at "no wake/idle" speeds at all times while in water where the draft of the vessel provides less than three feet clearance from the bottom and has agreed that vessels will follow routs of deep water whenever possible. Deep Lagoon has agreed that all construction activities in open water will cease upon the sighting of manatees within 100 yards of the project area. Construction activities will not resume until the manatees have departed the project area. Deep Lagoon has agreed to install and maintain manatee awareness signs at permanent locations within the construction area. Furthermore, Deep Lagoon has agreed to establish and maintain an educational display at a permanent location to increase the awareness of boaters using the facility of the presence of manatees, and the need to minimize the threat of boats to these animals. In addition to the above, Deep Lagoon has agreed to make available: (a) one wetslip for use by the Florida Marine Patrol; (b) one dry slip for the Lee County Sheriff's Department; and (c) upland space for the Coast Guard Auxiliary. Cumulative and Secondary Impacts There is no affirmative evidence in the record concerning the consideration given to existing and proposed marina projects in the Caloosahatchee River by DER in its review of Deep Lagoon's application for a permit. However, conditions placed in the permit which require sailboats only in the additional boatslips, along with educational displays regarding manatees, necessarily imply that the cumulative and secondary impact review took place.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent, Department of Environmental Regulation, grant the applicant, Deep Lagoon Marina, a dredge and fill permit, pursuant to the Notice of Intent to Issue dated July 26, 1988, in File No. 361279929, provided that the following additional conditions are incorporated into the permit as mandatory conditions: Baseline water quality samples include a sample site east of the berm between the Iona Drainage District ditch and the northern canal and assure that future water quality decline is not caused by discharge into the northern canal from the drainage ditch. A multiple baseline sampling shall be taken, consisting of one wet season and one dry season baseline. Comparative reviews shall be done of future wet season samples against the dry season baseline. When sediments are dredged from the marina bottoms, samples from each canal and the basin are to be subjected to an EPA toxicity test to determine whether the sediment is hazardous, and requires disposal at a hazardous waste facility. If the fill material used to shallow the marina bottoms comes from the area excavated for the flushing channel, it is to be tested to determine that it does not contain contaminated materials which will reduce the improvement in water quality gained from the dredging process. If the manatee protection plan ultimately adopted within the river is different than the plan referenced in the Intent to Issue, Deep Lagoon may not increase its power boat usage unless a permit modification is approved by the DER. If a manatee protection plan is not adopted and enforced, the additional slips should be occupied only by sailboats until such time as the manatees are actually granted protection. Limestone shall be placed within the stormwater treatment system if the available soils are deficient in the calcium carbonate to be used to precipitate copper back out of the stormwater discharge system. DONE and ENTERED this 11th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA D. DONNELLY 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 11th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4759 Petitioners' and Intervenor's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. Accepted. Accepted as to state water quality standards only. See HO #5. The rest is irrelevant for state permit review purposes. Accepted. See HO #5 and answer to paragraph 7 above. Accepted. Accepted. Rejected. Contrary to fact. See HO #4. Rejected. Unknown until water samples taken in the Iona Drainage District ditch. See HO #3. Accepted. Accepted. See HO ?#26 and #27. Accepted. Accepted. See HO #27. Accepted. Rejected. Conclusionary. Rejected. Contrary to fact. Rejected. Conclusionary. Unknown due to Iona Drainage District ditch. See HO #3. Rejected. See HO #26. Accept, that the sources are the same. The rest is rejected. See HO #26. Rejected. See HO #23. Accepted. See HO #23. Rejected. Conclusionary. See HO #23. Accepted. See HO #31. Accepted. Accepted. Rejected. See HO #32. Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Reject, that batteries are a source of lead. Conclusionary. See HO #36 and #37. Rejected. See HO #36. Rejected. See HO #39. Accepted. See HO #42. Accept as to the majority of violations, except contaminated sediment. See HO #42 and #43. Accepted. See HO #5. Accepted. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion Reject. Legal conclusion. Accept. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Accept. Reject. Legal conclusion. Reject. Legal conclusion. Accept. Accept. Accept. Reject. Legal conclusion. Reject. See HO #21. Reject. Legal conclusion Reject. Speculative. Accepted. See HO #3 Accepted. Rejected. Conclusionary. Rejected. Conclusionary. Rejected. Irrelevant. See HO #44 Accepted. See HO #6. Accepted. Accepted. See HO #52. Accepted. Accepted. Accepted. Accepted. Reject the reasons the canal is in use. Speculative. Accepted. Accepted. Accepted. Reject the arithmetic calculation of 18 fatalities. The rest is accepted. Accepted. Reject the major premise. Conclusionary. Accepted. Accept that the plan does not include San Carlos Bay. Reject the rest as conclusionary. Reject. Conclusionary. Reject. Legal conclusion. Reject. Conclusionary. Reject. Legal conclusion. Accepted. Rejected. Conclusionary. Accepted. Reject. Conclusionary. Reject. Conclusionary. Accepted. Accepted. Accepted. Rejected. Speculative. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. See HO #56. Rejected. See HO #56. Accepted. Rejected. Not established at hearing. Rejected. Conclusionary. Contrary to evidence at hearing. See HO #56. Accepted. Accepted. Reject. Legal conclusion. Rejected. See HO #57. Rejected. See HO #57. Rejected. Conclusionary. All factors not considered. Rejected. Contrary to fact. Accepted. Accepted. Rejected. Improper summary. Accepted. See HO #60. Accept. Rejected. Legal conclusion. Rejected. See HO #57. Rejected. Conclusionary. See HO #57. Rejected. Speculative. Accepted. Rejected. See HO #32-#35. Accepted. See HO #49. Accepted. See HO #35. Accepted. See HO #49. Rejected. See HO #35. Rejected. Overbroad. Does not relate to specific types of storm events. Respondent Deep Lagoon's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #2 and #12. Reject legal conclusion. The rest is accepted. See HO #5. Accepted. See HO #22. Accepted. See HO #5. Rejected. See HO #23. Accepted. See HO #23. Accepted. See HO #23. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #24. Accepted. See HO #26. Accepted. See HO #27. Accepted. See HO #28. Accepted. See HO #29. Accepted. See HO #30. Accepted. See HO #31. Accepted. See HO #32. Accepted. See HO #33. Accepted. See HO #34. Accepted. See HO #35. Accepted. See HO #36. Accepted. See HO #37. Accepted. See HO #38. Accepted. See HO #39. Accepted. See HO #40. Accepted. See HO #20. Accepted. See HO #41. Accepted. See HO #42. Accepted. See HO #43. Accepted. See HO #44. Accepted. See HO #45 Accepted. See HO #46. Accepted. See HO #47. Accepted. See HO #48. Accepted. See HO #14. Accepted. See HO #14. Rejected. Legal conclusion. Accepted. See HO #51. Accepted. See HO #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Rejected. See HO #60. Rejected. Conclusionary. Respondent DER's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #8. Accepted. See HO #9. Accepted. See HO #12. Rejected. Legal conclusion. Accepted. See HO #5. 6. Accepted. See HO #24, #30, #35, #41, #44, #46 and #48. 7. Accepted. See HO #22 and #34. 8. Accepted. See HO #23, #26, #31, #36, #42 and #47. Accepted. See HO #23 and #24. Accepted. See HO #9. Accepted. See HO #35. Accepted. See HO #24, #30 and #35. Accepted. See HO #8, #22, #45 and #46. Accepted. See HO #28. Accepted. See HO #20 and #21. Accepted. See HO #14 and #15. First sentence accepted. See HO #5. The rest is rejected. Conclusionary. Accepted. See HO #51. Accepted. See HO #6 and #52. Accepted. See HO #53. Accepted. See HO #54. Accepted. See HO #55. Accepted. See HO #56. Accepted. See HO #57. Accepted. See HO #58. Accepted. See HO #59. Accepted. See HO #5 COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street St. Petersburg, Florida 33712 Joseph W. Landers, Jr., Esquire Richard A. Lotspeich, Esquire LANDERS & PARSONS Post Office Box 2714 Tallahassee, Florida 32302 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case was whether the Respondent, City of Cape Coral (City), was entitled to an Individual Environmental Resource Permit (Permit) that would allow removal of the Chiquita Boat Lock (Lock) and associated uplands, and installation of a 165-foot linear seawall in the South Spreader Waterway in Cape Coral, Florida.
Findings Of Fact Based on the parties' stipulations and the evidence adduced at the final hearing, the following findings of fact are made: The Parties The Department is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of the Department's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules promulgated thereunder in the Florida Administrative Code. Pursuant to that authority, the Department determines whether to issue or deny applications for environmental resource permits. The City is a Florida municipality in Lee County. The City is the applicant for the Permit allowing the removal of the Lock and installation of a seawall (Project). The Project is located within the geographic boundary of the City. The South Spreader Waterway is a perimeter canal separating the City's canal system from shoreline wetlands to the west and south, which run the length of Matlacha Pass to the mouth of the Caloosahatchee River at San Carlos Bay.1/ The Association is a Florida non-profit corporation that was created in 1981. The Association was created to safeguard the interests of its members. The Association has approximately 150 members who reside in Matlacha and Matlacha Isles, Florida. A substantial number of its members have substantial interests in the use and enjoyment of waters adjacent to and surrounding Matlacha. The Association's members were particularly interested in protecting the water quality of the surface waters in the area. Matlacha is an island community located to the northwest of Cape Coral, the South Spreader Waterway, and the Lock. Matlacha is located within Matlacha Pass Aquatic Preserve. Matlacha Pass is classified as a Class II waterbody designated for shellfish propagation or harvesting, and is an Outstanding Florida Water (OFW). See Fla. Admin. Code R. 62-02.400(17)(b)36; 62-302.700(9)(h). Petitioner, Karl Deigert, is a resident and property owner in Matlacha. Mr. Deigert is the president of the Association. Mr. Deigert’s house in Matlacha is waterfront. He holds a captain’s license and has a business in which he gives sightseeing and ecological tours by boat of the waters around Matlacha. He fishes in the waters around his property and enjoys the current water quality in the area. He is concerned that removal of the Lock would have negative effects on water quality and would negatively impact the viability of his business and his enjoyment of the waters surrounding Matlacha. Petitioner, Melanie Hoff, is a resident and property owner in St. James City. St. James City is located to the southwest of Cape Coral. Ms. Hoff’s property is located within five nautical miles of the Lock. Ms. Hoff engages in various water sports and fishes in the waters around her property. She moved to the area, in part, for the favorable water quality. She is concerned that removal of the Lock would negatively impact water quality and her ability to use and enjoy waters in the area. Petitioner, Robert S. Zarranz, is a resident and property owner in Cape Coral. Mr. Zarranz’s house in Cape Coral is waterfront. He is an avid fisherman and boater. He is concerned that removal of the Lock would negatively impact water quality, and that the quality of fishing in the area would decline as a result. Petitioner, Yolanda Olsen, is a resident and property owner in Cape Coral. Ms. Olsen’s house in Cape Coral is waterfront. She enjoys watersports and birdwatching in the areas around her property. She is concerned that removal of the Lock would negatively impact water quality, and that her ability to enjoy her property and the surrounding waters would suffer as a result. Petitioner, Jessica Blanks, is a resident and property owner in Cape Coral. Ms. Blanks’ house in Cape Coral is waterfront. She is concerned that removal of the Lock would negatively impact water quality, and that her ability to enjoy her property and the surrounding waters would suffer as a result. Petitioner, Joseph Michael Hannon, is a resident and property owner in Matlacha. Mr. Hannon is a member of the Association. He enjoys boating, fishing, and kayaking in the waters surrounding Matlacha. He is concerned that removal of the Lock would negatively impact water quality, and that his ability to enjoy his property and the surrounding waters would suffer as a result. Petitioner, Debra Hall, did not appear at the final hearing and no testimony was offered regarding her standing. The Project and Vicinity The Project site is 0.47 acres. At the Lock location, the South Spreader Waterway is 200 feet wide, and includes a 125-foot wide upland area secured by two seawalls, the 20-foot wide Lock, a 32-foot wide upland area secured by one seawall, and 23 feet of mangrove wetlands. The Lock is bordered to the north by property owned by Cape Harbour Marina, LLC, and bordered to the south by mangrove wetlands owned by the state of Florida. The 125-foot wide upland area and the 20-foot wide Lock form a barrier separating the South Spreader Waterway from the Caloosahatchee River. The preponderance of the competent substantial evidence established that the South Spreader Waterway behind the Lock is not tidally influenced, but would become tidally influenced upon removal of the Lock. Joint Exhibit 1 at p. 46. The City proposes to remove the Lock and one of the seawalls, reducing the 125-foot upland area to 20 feet. The proposed future condition of the area would include 125 feet of open canal directly connecting the South Spreader Waterway with the Caloosahatchee River. Joint Exhibit 1 at p. 47. The primary purpose of the Lock's removal is to alleviate safety concerns related to boater navigation. The Project's in-water construction includes demolition and removal of the existing Lock, removal of existing fill in the 125-foot upland area, removal of existing seawalls, and construction of replacement seawalls. The City would employ Best Management Practices (BMPs) throughout the course of the Project, including sediment and erosion controls such as turbidity barriers. The turbidity barriers would be made of a material in which manatees could not become entangled. All personnel involved with the Project would be instructed about the presence of manatees. Also, temporary signs concerning manatees would be posted prior to and during all in-water project activities. History of the South Spreader Waterway In the mid-1970's, the co-trustees of Gulf American Corporation, GAC Properties Credit, Inc., and GAC Properties, Inc., (collectively GAC) filed for after-the-fact permits from the Department's predecessor agency (DER), for the large dredge and fill work project that created the canal system in Cape Coral. In 1977, DER entered into CO 15 with GAC to create the North and South Spreader Waterways and retention control systems, including barriers. The Lock was one of the barriers created in response to CO 15. The Spreader Waterways were created to restore the natural hydrology of the area affected by GAC's unauthorized dredging and filling activity. The Spreader Waterways collected and retained surface runoff waters originating from the interior of Cape Coral's canal system. The South Spreader Waterway was not designed to meet water quality standards, but instead to collect surface runoff, then allow discharge of the excess waters collected over and through the mangrove wetlands located on the western and southern borders of the South Spreader Waterway. This fresh water flow was designed to mimic the historic sheet flow through the coastal fringe of mangroves and salt marshes of the Caloosahatchee River and Matlacha Pass estuaries. The fresh water slowly discharged over the coastal fringe until it finally mixed with the more saline waters of the estuaries. The estuarine environments located west and south of the Lock require certain levels of salinity to remain healthy ecosystems. Restoring and achieving certain salinity ranges was important to restoring and preserving the coastal fringe. In 1977 GAC finalized bankruptcy proceedings and executed CO 15. CO 15 required GAC to relinquish to the state of Florida the mangrove wetlands it owned on the western and southern borders of the South Spreader Waterway. This land grant was dedicated by a warranty deed executed in 1977 between GAC and the state of Florida. The Petitioners' expert, Kevin Erwin, worked as an environmental specialist for DER prior to and during the construction of the Spreader Waterways. Mr. Erwin was DER's main representative who worked with the GAC co-trustees to resolve the massive dredge and fill violation and design a system to restore the natural hydrology of the area. Mr. Erwin testified that the Lock was designed to assist in retention of fresh water in the South Spreader Waterway. The fresh water would be retained, slowed down, and allowed to slowly sheet flow over and through the coastal fringe. Mr. Erwin also testified that the South Spreader Waterway was not designed to allow direct tidal exchange with the Caloosahatchee River. In Mr. Erwin's opinion, the South Spreader Waterway appeared to be functioning today in the same manner as originally intended. Breaches and Exchange of Waters The Department's second amended notice of intent for the Project, stated that the Project was not expected to contribute to current water quality violations, because water in the South Spreader Waterway was already being exchanged with Matlacha Pass and the Caloosahatchee River through breaches and direct tidal flow. This second amended notice of intent removed all references to mitigation projects that would provide a net improvement in water quality as part of the regulatory basis for issuance of the permit. See Joint Exhibit 1 at pp. 326-333. The Department's witnesses testified that waters within the South Spreader Waterway currently mix with waters of the Caloosahatchee River when the Lock remains open during incoming and slack tides. A Department permit allowed the Lock to remain open during incoming and slack tides. Department witness, Megan Mills, the permitting program administrator, testified that she could not remember the exact date that permit was issued, but that it had been "a couple years." The location of breaches in the western and southern banks of the South Spreader Waterway was documented on another permit's drawings and pictures for a project titled "Cape Coral Spreader Waterway Restoration." See Cape Coral Ex. 9. Those documents located three breaches for repair and restoration identified as Breach 16A, Breach 16B, and Breach 20. The modeling reports and discussion that support the City's application showed these three breaches connect to Matlacha Pass Aquatic Preserve. Breach 20 was described as a connected tidal creek. Breach 16A and 16B were described as allowing water movement between Matlacha Pass and the South Spreader Waterway only when relatively high water elevations occurred in Matlacha Pass or in the South Spreader Waterway. The Department's water quality explanation of "mixing," was rather simplistic, and did not consider that the waterbody in which the Project would occur has three direct connections with an OFW that is a Class II waters designated for shellfish propagation or harvesting. Such a consideration would require the Department to determine whether to apply the OFW permitting standards, and the Class II waters permitting criteria in section 10.2.5 of the Environmental Resource Permit Applicant's Handbook, Volume I. See Fla. Admin Code R. 62-330.302(1)(a); 62-4.242(2); and 62-302.400(17)(b)36. The Caloosahatchee River, at its entrance to the South Spreader Waterway, is a Class III waters restricted for shellfish harvesting. The mouth of the Caloosahatchee River is San Carlos Bay, which is a Class II waters restricted for shellfish harvesting. There was no evidence that the Department's regulatory analysis considered that the waterbody in which the Project would occur directly connects to Class III waters that are restricted for shellfish harvesting, and is in close proximity to Class II waters that are restricted for shellfish harvesting. See Fla. Admin. Code R. 62-302.400(17)(b)36. and 62-330.302(1)(c).2/ Total Nitrogen The City's expert, Anthony Janicki, Ph.D., testified that nitrogen concentrations in the Caloosahatchee River were higher than in the South Spreader Waterway in the years 2017 and 2018. Thus, he opined that if the Lock is removed, water from the South Spreader Waterway would not negatively impact the Caloosahatchee River. However, the City's application was supported by an analysis, with more than a decade of monitoring data, which showed nitrogen concentration values were comparable inside the South Spreader Waterway and in the Caloosahatchee River. Dr. Janicki also used the Department's Hydrologic Simulation Program – FORTRAN (HSPF) watershed model to estimate the Total Nitrogen (TN) loading that would enter the Caloosahatchee River through the Chiquita Lock. Dr. Janicki estimated that TN loading to the Caloosahatchee River, after removal of the Chiquita Lock, would amount to 30,746 pounds per year. The Caloosahatchee River is listed as impaired for nutrients and has a TN Total Maximum Daily Load (TMDL) that was set by the Department in 2009. Dr. Janicki opined that removing the Lock would not result in adverse impacts to the surrounding environment. But the Petitioners obtained his concession that his opinion was dependent on the City's completion of additional water quality enhancement projects in the future as part of its obligations under the Caloosahatchee Estuary Basin Management Action Plan (BMAP) for achieving the TN TMDL. Dr. Janicki additionally testified that the potential TN loading to the Caloosahatchee River did not anticipate an actual impact to the River's water quality because the TN loads from the South Spreader Waterway were already factored into the 2009 TMDL. He essentially testified that the Lock's removal was anticipated and was factored into the model when the TMDL was established in 2009. Thus, the Petitioners proved by a preponderance of the competent and substantial evidence that the Department and the City were not aligned regarding how the City's application would provide reasonable assurances of meeting applicable water quality standards. The Petitioners proved by a preponderance of the competent and substantial evidence that the City relied on future projects to provide reasonable assurance that the removal of the Lock would not cause or contribute to violations of water quality standards in the Caloosahatchee River and the Matlacha Pass Aquatic Preserve. The Petitioners proved by a preponderance of the competent and substantial evidence that the Department relied on a simplistic exchange of waters to determine that removal of the Lock would not cause or contribute to violations of water quality standards in the Caloosahatchee River and the Matlacha Pass Aquatic Preserve. Water Quantity and Salinity The engineering report that supports the City's application stated that when the Lock is removed, the South Spreader Waterway behind the Lock will become tidally influenced. With the Lock removed, the volume of daily water fluxes for the South Spreader Waterway would increase from zero cubic meters per day to 63,645 cubic meters per day. At the location of Breach 20, with the Lock removed, the volume of daily water fluxes would drastically decrease from 49,644 cubic meters per day to eight cubic meters per day. Dr. Janicki testified that Breach 20 was connected to a remnant tidal creek that meanders and eventually empties into an embayment. The evidence demonstrated that the embayment is Punta Blanca Bay, which is part of the Matlacha Pass Aquatic Preserve. Dr. Janicki opined that Breach 20 was an area of erosion risk and sediment transport into downstream mangroves that would be significantly reduced by removing the Lock. He explained that the reductions in flow would result in reductions in velocities through Breach 20 and in the South Spreader Waterway itself. Mr. Erwin testified that Breach 20 was not a "breach."3/ He described it as the location of a perpendicular intersection of the South Spreader Waterway with a small tidal creek, which connected to a tidal pond further back in the mangroves. Mr. Erwin testified that an "engineered sandbag concrete structure" was built at the shallow opening to limit the amount of flow into and out of this tidal creek system. But it was also designed to make sure that the tidal creek system "continued to get some amount of water." As found above, Lock removal would drastically reduce the volume of daily water fluxes into and out of Breach 20's tidal creek system. Mr. Erwin also testified that any issues with velocities or erosion would be exemplified by bed lowering, siltation, and stressed mangroves. He persuasively testified, however, that there was no such evidence of erosion and there were "a lot of real healthy mangroves." Mr. Erwin opined that removal of the Lock would cause the South Spreader Waterway to go from a closed, mostly fresh water system, to a tidal saline system. He described the current salinity level in the South Spreader Waterway to be low enough to support low salinity vegetation and not high enough to support marine organisms like barnacles and oysters. The City's application actually supports this opinion. Using the Environmental Fluid Dynamics Code (EFDC) model developed by Dr. Janicki for this Lock removal project, comparisons were made describing the salinity distribution within the South Spreader Waterway. The model was run with and without the Lock, for both a wet and dry year. Dr. Janicki testified, and the model showed, that removal of the Lock would result in increased salinity above the Lock and decreased salinity downstream of the Lock. However, he generally opined that the distribution of salinities was well within the normal ranges seen in this area. The City's application also concluded that the resultant salinities did not fall outside the preferred salinity ranges for seagrasses, oysters, and a wide variety of fish taxa. However, Dr. Janicki did not address specific changes in vegetation and encroachment of marine organisms that would occur with the increase in salinity within the South Spreader Waterway. Secondary Impacts to the Mangrove Wetlands Mr. Erwin testified that the mangroves located on the western and southern borders of the South Spreader Waterway are currently in very good health. He additionally testified that loss of the current fresh water hydraulic head and an increase in salinity within the South Spreader Waterway would negatively impact the health of the mangrove wetlands. In addition, the City's application stated that removing the Lock would result in a drop in the water level of one to one and a half feet within the South Spreader Waterway. Mr. Erwin credibly and persuasively testified that a drop in water level of only a few inches would have negative effects on the health of mangroves, and that a drop of a foot could result in substantial mangrove die-off. Mr. Erwin testified that the mangrove wetlands adjacent to the South Spreader Waterway consist of a variety of plants and algae in addition to mangroves. He described the wetlands as a mangrove community made up of different types of mangroves, and epiphytic vegetation such as marine algae. This mangrove community provides habitat for a "wide range of invertebrates." He further testified that these plants and algae uptake and transform the nutrients that flow over and through the mangrove wetlands before they reach the receiving waters. Thus, the mangrove wetlands on the western and southern borders of the South Spreader Waterway serve to filter nutrients out of the water discharged from the Waterway before it reaches Matlacha Pass and the Caloosahatchee River. Mr. Erwin's credible and persuasive testimony was contrary to the City's contention that Lock removal would not result in adverse impacts to the mangrove wetlands adjacent to the South Spreader Waterway. The City and the Department failed to provide reasonable assurances that removing the Lock would not have adverse secondary impacts to the health of the mangrove wetlands community adjacent to the South Spreader Waterway. Impacts to Fish and Wildlife, Including Endangered and Threatened Species The Florida Fish and Wildlife Conservation Commission (FWC) reviewed the City's application and determined that if BMPs for in-water work were employed during construction, no significant adverse impacts on fish and wildlife were expected. For example, temporary signs concerning manatees would be posted prior to and during all in-water project activities, and all personnel would be instructed about the presence of manatees. The FWC determination only addressed direct impacts during in-water construction work. The City's application contained supporting material that identified the major change resulting from removal of the Lock that may influence fish and wildlife in the vicinity of the Project, was the opportunity for movement to or from the South Spreader Waterway canal system. Threatened and endangered species of concern in the area included the Florida manatee and the smalltooth sawfish. The City's application stated that literature review showed the smalltooth sawfish and the Florida manatee utilized non-main-stem habitats, such as sea-wall lined canals, off the Caloosahatchee River. The City cited studies from 2011 and 2013, which showed that non-main-stem habitats were important thermal refuges during the winter, and part of the overall nursery area for smalltooth sawfish. The City concluded that removal of the Lock "would not be adverse, and would instead result in increased areas of useable habitat by the species." However, the Petitioner's expert witness, John Cassani, who is the Calusa Waterkeeper, testified that there is a smalltooth sawfish exclusion zone downstream of the Lock. He testified that the exclusion zone is a pupping area for smalltooth sawfish, and that rapid salinity fluctuations could negatively impact their habitat. The City also concluded that any impacts to the Florida manatee would not be adverse, "and would instead result in increased areas of useable habitat by the species, as well as a reduction in risk of entrapment or crushing in a canal lock system." At the same time, the City acknowledged that "watercraft collision is a primary anthropogenic threat to manatees." The City's literature review included a regional assessment by FWC's Fish and Wildlife Research Institute (FWRI) from 2006. Overall, the FWRI report concluded that the mouth of the Caloosahatchee River, at San Carlos Bay, was a "hot spot" for boat traffic coinciding with the shift and dispersal of manatees from winter refugia. The result was a "high risk of manatee- motorboat collisions." In addition, testimony adduced at the hearing from an 18-year employee of Cape Harbour Marina, Mr. Frank Muto, was that Lock removal would result in novice boaters increasing their speed, ignoring the no-wake and slow-speed zones, and presenting "a bigger hazard than the [L]ock ever has." Boater Navigation Concerns Oliver Clarke was the City’s principal engineer during the application process, and signed the application as the City's authorized agent. Mr. Clarke testified that he has witnessed boater congestion at the Lock. He also testified that lack of boating experience and weather concerns can exacerbate the boater congestion issues at the Lock. Petitioners presented the testimony of Mr. Frank Muto, the general manager of Cape Harbour Marina. Mr. Muto has been at the Cape Harbour Marina for 18 years. The marina has 78 docks on three finger piers along with transient spots. The marina is not currently subject to tidal flows and its water depth is between six and a half and seven and a half feet. He testified that they currently have at least 28 boats that maintain a draft of between four and a half and six feet of water. If the water depth got below four feet, those customers would not want to remain at the marina. Mr. Muto further testified that the Lock was in place when the marina was built, and the marina and docks were designed for an area with no tidal flow. Mr. Muto also testified that he has witnessed several boating safety incidents in and around the Lock. He testified that he would attribute almost all of those incidents to novice boaters who lack knowledge of proper boating operations and locking procedures. Mr. Muto additionally testified that there is law enforcement presence at the Lock twenty-four hours a day, including FWC marine patrol and the City's marine patrol.
Conclusions For Petitioners: J. Michael Hannon, Qualified Representative 2721 Clyde Street Matlacha, Florida 33993 John S. Turner, Esquire Peterson Law Group Post Office Box 670 Fort Myers, Florida 33902 For Respondent City of Cape Coral: Craig D. Varn, Esquire Amy Wells Brennan, Esquire Manson Bolves Donaldson Varn, P.A. 106 East College Avenue, Suite 820 Tallahassee, Florida 32301 Steven D. Griffin City of Cape Coral Assistant City Attorney Post Office Box 150027 Cape Coral, Florida 33915-0027 For Respondent Department of Environmental Protection: Kirk Sanders White, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: The Department of Environmental Protection enter a final order denying Individual Environmental Resource Permit Number 244816-005 to the City of Cape Coral for removal of the Chiquita Boat Lock. The final order deny Petitioners' request for an award of attorney's fees and costs. DONE AND ENTERED this 12th day of December, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2019.
Findings Of Fact The parties stipulated, and it is so found, that Petitioner, DER, has jurisdiction over both the issues and the Respondents Dey and KWC. KWC owns and operates a water system which supplies water to both residential and commercial customers in the City of Keystone Heights, Florida. Virginia Key is the President of KWC, a member of the Board of Directors of the corporation, and one of the five stockholders. The other stockholders are her sisters. The five sisters are the daughters of the late G. E Wiggins, and inherited the company from him at his death in 1969. Mr. Wiggins developed the water company in the 1920's and operated it until his death. KWC came under the jurisdiction of the Florida Public Service Commission (PSC) just prior to Mr. Wiggins' death. At that time, pursuant to a PSC requirement, it was assessed and valued at a sum in excess of $250,000.00 by a consultant firm hired for the purpose. As of late November, 1984, KWC served approximately 752 residential customers which, when multiplied by an average 2.5 persons per family factor, results in a total of approximately 1,880 residential inhabitants served by the water system. In addition, the system serves 105 commercial customers. It is impossible to estimate with any reasonable degree of accuracy the number of individuals involved in the commercial service. The system consists of three wells drilled in 1940, 1946, and 1960 to a depth of 350, 450, and 492 feet respectively. Total yield from the three wells is normally 1,350 gallons per minute. The wells are generally well protected against surface water infusion, are normally not subject to inundation, and have had no salt water infiltration problems in the past. At the present time, well number 2, drilled in 1946, with a 350 gpm yield is out of service. The water, when pumped from the ground, is stored in two tanks-one with a 60,000 gallon capacity and the other with a capacity of 800 gallons. Both tanks are steel. Chlorine is added to the water in each storage situation by a hyper-chlori- nation system before the water is sent to the storage tank. The distribution system is made up of 6" and 2" diameter pipe. In March, 1984, two different inspections of the water system, done by, in one case, an environmental specialist and in the other, an Engineer I with DER, revealed several deficiencies in the maintenance and operation of the system all of which constitute violations of DER rules. Specifically, these include (1) failure to provide an auxiliary power source in the event the main pumping capability of the system is lost, (Rule 17-22.106 (3)(a); (2) failure to utilize for the system an operator certi- fied by the state with a Class C license, (Rule 17-22.107(3)(b); (3) failure to maintain a free chlorine residual in the water of at least 0.2 ppm in the system, (Rule 17-22.106(3)(c); (4) failure to maintain a minimum pressure of 20 ppi in the distribution system, (Rule 17-22.106(3)(f); (5) failure to have a gas chlorination facility, (Rule 17-22.106(3)(d); and (6) failure to obtain proper permits to expand the distribution system, (Rule 17-22.108 (1)(b) Rule 17-22, F.A.C., sets up requirements for safe drinking water and was designed to establish guidelines and standards for facilities and water and to bring water into compliance with the Federal Act. Twenty ppi of pressure in the system was adopted as a standard minimum for residual pressure to protect against outside contaminants getting into the water system. Such contaminants could come from ground water, leaks, and water in storage tanks attached to the system such as toilet tanks, being aspirated into the system. Also a certain amount of pressure is required to operate appliances. Normally minimum pressure is found in areas at the edge of the system and in those areas where inadequate chlorination is located. They interact and both pressure and chlorinization are required. Chlorine can be injected into the system generally in two ways: the first is through gas chlori- nation and the second, through hyper-chlorinization as is used in the instant system. The effectiveness of hyper-chlorinization is limited, however, by the size of the system. Basically, hyper- chlorinization is effective when the demand in the system for pressure is no more than 10 ppi. Above this, gas chlorinization is necessary. As late as January 4, 1985, Mr. Dykes went to Keystone Heights to test the system. His tests showed that 11.9 ppi is the average daily flow per 24 hours for the last 12 months. Since this figure is above 10 ppi, in his opinion, a gas chlorinization system would be needed. Chlorine is used to purify water because it has been shown, through long use, to prevent disease. The requirement for a residual chlorine level in water, therefore, is consistent with that concept to insure chlorine is always in the water in sufficient quantity to prevent disease. Respondent's plant has less than the 0.2 residual that is required under the rule. This insufficiency is caused by the inadequate chlorinization system which has insufficient capacity to provide the appropriate amount of chlorine. At the current level, it is providing only approximately 60 percent of the needed chlorine. To correct this deficiency Mr. Dykes recommends installation of a gas chlorinization system. In addition, the pneumatic tank storing the water from the number 3 well does not give sufficient detention time to allow for appropriate reaction of the chlorine contained in the water before the water is released into the distribution system. Another factor relating to the lack of adequate pressure in the system is the fact that, in Mr. Dykes' opinion, too much of the system is made up of 2" diameter water line. A line of this small diameter prevents the maintenance of adequate pressure especially in light of the fact that there are numerous old lines in the system some with corrosion and scale in them which tends to reduce pressure. This latter factor would be prevalent even in the 6" lines. The current plant manager, Mr. Cross, who has been with Respondent for approximately 4 years is, with the exception of one part time employee, the only operations individual associated with the plant. As such, he repairs the meters and the lines, checks the pumps, the chlorinator, and checks and refills the chlorine reservoir on a seven day a week basis. Be learned the operation of the plant from his precedessor, Mr. Johnson, an unlicensed operator who was with the company for 10 years. Mr. Cross has a "D" license which he secured last year after being notified by DER that a license was required. It was necessary for him to get the "D" license before getting the required "C" license. At the present time, he is enrolled to take courses leading toward the "C" license. At the present time, however, he is not, nor is anyone else associated with KWC, holding a license as required. The rule regarding auxiliary power provides that all community systems serving 350 or more persons shall have standby pumping capability or auxiliary power to allow operation of the water treatment unit and pumping capability of approximately one-half the maximum daily system demand. Respondent has admitted that the system is not equipped with an auxiliary power source and it has already been established that more than 350 persons are served by the system. Respondent also admits that subsequent to November 9, 1977, it constructed main water lines for the system which required the obtaining of a permit from either the Petitioner or the county health unit. Respondent admits that it did not obtain or possess a permit to do the additional construction referenced above from either DER or the Clay County Health Department prior to the construction of the water lines referenced. The inspections referenced above, which identified the problems discussed herein, were accomplished by employees of Petitioner, DER, at a stipulated cost of $898.10. Respondent contends, and there is no evidence to the contrary, that there have been no complaints of contaminated water and that the monthly water samples which Mr. Cross forwards to the Clay County Health Department have been satisfactory. Mr. Cross also indicates that a September, 1983 DER analysis of water samples taken from the system was satisfactory. However, bacteriological analysis reports on water collected from Respondent's system on July 11 and 27, 1983, reflect unsatisfactory levels of either coliform or non-coliform bacteria in the water requiring resubmission of test samples. Respondent also contends that no one has ever gotten sick or died from the water furnished by the system and there is, in fact, no evidence to show this is not true. Even though so far as is known, no one has ever been made sick from the water in the system, in Mr. Dykes' opinion, the risk is there. As a result of the defects identified in this system, insufficient chlorine is going into the system to meet reasonable health standards. Though this does not mean that the water is now bad, it does mean that at any time, given a leak or the infusion of some contaminant, the water could become bad quickly, and the standard established by rule is preventive, designed to insure that even in the case of contamination, the water will remain safe and potable. Respondent does not deny that it is and has been in violation of the rules as set out by the Petitioner. It claims, however, that it does not have sufficient funds available to comply with the rules as promulgated by DER. Respondent has recently filed a request for variance under Section 403.854, Florida Statutes, setting forth as the basis for its request that it does not have the present financial ability to comply with any of the suggested or recommended corrective actions to bring its operation into compliance with the rules. Mr. Protheroe, the consulting engineer who testified for Respondent has not evaluated the system personally. His familiarity with it is a result of his perusal of the records of the company and the Petitioner. Based on his limited familiarity with the system, he cannot say with any certainty if it can be brought into compliance with, for example, the 20 ppi requirement. There are too many unknowns. If, however, the central system was found to be in, reasonably good shape, in his opinion, it would take in excess of $100,000.00 to bring it within pressure standards. To do so would require replacement of the 2" lines, looping the lines, and cleaning and replacing some central system lines as well. In his opinion, it would take three months to do a complete and competent analysis of the system's repair needs. Once that was done, he feels it would take an additional three months to bring the plant into compliance with DER requirements. Other repairs, such as those to the lines outside the plant, would take longer because some are located in the downtown area and have interfaced with other utilities. This could take from three to four months if the money were available to start immediately. Here, however, it has been shown that it is not. Consequently, to do the study and then, if possible, procure the funds required, could take well in excess of six months or so. Mr. Protheroe contends, and there is little if any evidence to indicate to the contrary, that to replace the current system with a new one entirely as it is currently constituted would cost at least $250,000.00. However, in his opinion, no one would ever put in a new system similar to the one currently there. He cannot say how much it would cost to buy the system and make the necessary corrections to it to rectify the deficiencies. His familiarity with the system is not sufficiently complete to do this. He cannot say exactly how much the system is worth in its current state, but he is satisfied that it is worth more than $65,000.00. In that regard, Mrs. Dey indicated that in her opinion, the fair market value of the system is currently at $250,000.00. At the present time, there are current outstanding loans in excess of $9,000.00 at 16 percent interest. This current loan basis has been reduced from a higher figure. In 1977, the company borrowed $15,000.00 at 9 percent. In 1981, it borrowed $5,000.00 more at 18 percent. In 1982, the loans were consolidated at an increased rate of 16 percent and the officers have been advised by their current creditors that they cannot borrow any more money for the system in its current state. They would sell the system if a reasonable price could be realized. However, any inquiries on prospective purchases have been chilled by a low rate base assigned by the PSC. In that regard, the City of Keystone Heights offered to purchase the system for $59,000.00. This offer was declined as being unreasonable. Nonetheless, in light of the low rate base assigned by the PSC in its order issued on December 21, 1981 of slightly over $53,000.00 the offer by the city of $59,000.00 is not completely out of line. A certified public accountant, in KWC's December 31, 1983 financial report assigned a valuation of approximately $62,000.00, again a figure only slightly higher than that offered by the city, but substantially less than the $175,000.00 price asked of the city by Respondent Dey and her sisters. Mrs. Dey indicated that to the best of her knowledge the PSC denied rate increases for the purposes of improvements. In the presentation before the commission, respondents relied exclusively on the services of their attorney and accountant. Evidence from Mr. Lowe, of the PSC, however, indicates that KWC has never requested a rate increase to finance any of the improvements called for here. In the PSC order referred to above, Respondent was awarded a 12.25 percent rate of return on its rate base. This figure was an amalgam of a more than 13 percent rate on equity and a lesser figure for cost of doing business, including debt. At the time of that hearing, however, the debt cost was based on a 9 percent interest figure. The 16 percent interest figure came afterwards and no hearing has been requested based on the higher interest rate and it is so found.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is, therefore: RECOMMENDED that Respondents Virginia W. Day and the Keystone Water Company be ordered to comply with the Orders for Corrective Action previously filed herein to bring the water system in question in compliance with the Florida Safe Water Drinking Act without delay or suffer the penalties for non- compliance called for by statute and, in addition, pay costs of investigation in the amount of $898.16. RECOMMENDED in Tallahassee, Florida this 19th day of February, 1985. ARNOLD H. POLLOCK 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. COPIES FURNISHED: Debra A. Swim, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John E Norris, Esquire 10 North Columbia Street Lake City, Florida 32055 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The petitioner is a private landowner of a tract of land adjacent to the Suwannee River in Dixie County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida charged with carrying out the mandates of Chapter 403, Florida Statutes, and the rules contained in the Florida Administrative Code promulgated thereunder. The Petitioner's proposed project entails the construction of a twelve- foot wide filled road across approximately 270 feet of swampy area in which the dominant plant species is bald cypress (taxodium distichum), a species listed in Rule 17-4.02(17), Florida Administrative Code. The property to be so developed by the petitioner lies within the landward extent of the Suwannee River in Dixie County. The Suwannee River, in this project area, constitutes waters of the state over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17-4.28(a), Florida Administrative Code. The project areas within "outstanding Florida waters" as defined in Rule 17-3.04(1)(3)g, Florida Administrative Code. The "upland berm" or river terrace on the property immediately adjacent to the navigable portion of the river is caused by the natural alluvial deposition of the river and the landward extent of the state waters here involved crosses the property in approximately the center of the parcel. The proposed filing for the road crossing the swamp would result in the permanent elimination of at least 3,240 square feet of area within the landward extent of the Suwannee River. Specifically, the project would consist of a road some 12 feet wide at the bottom and 8 feet wide at the top, extending approximately 270 feet across the swampy area in question from the portion of the property which fronts on a public road, to the river terrace or "berm" area along the navigable portion of the Suwannee River. The road will be constructed with approximately 450 cubic yards of clean fill material with culverts 12 feet in length and 3 feet in diameter placed under the road at 25 foot intervals. The parties have stipulated that the Department has jurisdiction pursuant to Chapter 403, Florida Statutes, and Public Law 92-500, to require a permit and water quality certification or the construction of a stationary installation within the waters of the state which this project has been stipulated to be. The area to be filled is primarily vegetated by bald cypress, ash, blackgum, planer trees and other swamp species falling within the definitional portion of the above rule. The swamp contributes to the maintenance of water quality in the river itself by the filtering of sediment and particulates, assimilating and transforming nutrients and other pollutants through the uptake action of the plant species growing therein. The proposed project would destroy by removal, and by the filling, a substantial number of these species on the site which perform this function. The swamp area also serves as a habitat, food source and breeding ground for various forms of fish and wildlife including a species of state concern, the yellow-crowned night heron, which has been observed on this site and which requires such habitat for breeding and for its food source (see the testimony of Kautz). The area in question provides flood protection by storing flood waters and releasing them in a gradual fashion to the river system, especially during dry periods when the river level is lower than that of the swamp which serves to augment stream flow in such periods. As established by witness Kautz, as well as witnesses Rector and Tyler, the filling proposed by the Petitioner would cause degradation of local water quality within the immediate area where the fill would be placed and, the attendant construction activity adjacent to either side of the filled area would disturb trees, animals and other local biota. The period during and immediately after the construction on the site would be characterized by excessive turbidity and resultant degradation of the water quality within the area and downstream of it. The long-term impact of the project would include continued turbidity adjacent to and downstream from the filled road due to sloughing off of the sides of the road caused by an excessively steep slope and to the necessary maintenance operations required to re-establish the road after washouts caused by each rain or rainy period. An additional long-term detrimental effect will be excessive nutrient enrichment expected in the area due to the removal of the filtrative functions caused by removal of the trees and other plant life across the entire width of the swamp and the resultant inability of the adjacent areas to take up the nutrient load formerly assimilated by the plant life on the project area. The project will thus permanently eradicate the subject area's filtrative and assimilative capacity for nutrients, heavy metals and other pollutants. The effect of this project, as well as the cumulative effect of many such already existent fill roads in this vicinity along the Suwannee River, and the effect of proliferation of such filling, will cause significant degradation of local water quality in violation of state standards. The effect of even this single filled road across the subject swamp is especially severe in terms of its "damming" effect (even with culverts). The resultant retention of water standing in the swamp for excessive periods of time will grossly alter the "hydro period" of the area or the length of time the area is alternately inundated with floodwaters or drained of them. This will cause a severe detrimental effect on various forms of plant and animal life and biological processes necessary to maintenance of adequate water quality in the swamp and in its discharge to the river itself. The excessive retention of floodwaters caused by this damming effect will ultimately result in the death of many of the tree species necessary for the uptake of nutrients and other pollutants which can only tolerate the naturally intermittent and brief flood periods. This permit is not necessary in order for the Petitioner to have access to his property as his parcel fronts on a public access road. The purpose of the proposed road is merely to provide access to the river terrace or "upland berm" area on the portion of the property immediately adjacent to the navigable waters of the Suwannee River. The Department advocated through its various witnesses that a viable and acceptable alternative would be the construction of a walkway or a bridge on pilings across the jurisdictional area in question connecting the two upland portions of Petitioner's property. Such a walkway would also require a permit, but the Department took the position that it would not object to the permitting of an elevated wooden walkway or bridge for vehicles. The petitioner, near the close of the hearing, ultimately agreed that construction of such a walkway or bridge would comport with his wishes and intentions for access to the river berm portion of his property and generally indicated that that approach would be acceptable to him. It should also be pointed out that access is readily available to the waterward portion of the property from the navigable waters of the river by boat. The Petitioner did not refute the evidence propounded by the Department's expert witnesses, but testified that he desired the fill-road alternative because he believed it to be somewhat less expensive than construction of an elevated wooden bridge or walkway and that he had been of the belief that the use of treated pilings for such a walkway or bridge would result in chemical pollution of the state waters in question. The expert testimony propounded by the Respondent, however, establishes that any leaching action of the chemical in treated pilings would have a negligible effect on any life forms in the subject state waters at any measurable distance from the pilings. In summary, the petitioner, although he did not stipulate to amend his petition to allow for construction of the bridge as opposed to the fill road, did not disagree with it as a viable solution and indicated willingness to effect establishment of access to the riverfront portion of his property by that alternative should it be permitted.
The Issue The issues to be resolved in this proceedings concern whether Environmental Resource Permit (ERP) No. 4-109-0216-ERP, should be modified to allow construction and operation of a surface water management system (project) related to the construction and operation of single-family homes on "Marshall Creek" (Parcel D) in a manner consistent with the standards for issuance of an ERP in accordance with Rules 40C-4.301 and 40C-4.302, Florida Administrative Code.
Findings Of Fact The Project The project is a 29.9-acre residential development and associated stormwater system in a wetland mitigation area known as "Parcel D." It lies within the much larger Marshall Creek DRI in St. Johns County, Florida, bounded on the northeast by Marshall Creek, on the south and southeast by a previously permitted golf course holes sixteen and seventeen, and on the north by the "Loop Road." The project consists of thirty residential lots of approximately one-half acre in size; a short segment of Loop Road to access Parcel D; an internal road system; expansion of previously permitted Pond N, a wet detention stormwater management pond lying north of the Loop Road and wetland mitigation areas. Approximately 1.15 acres of wetlands are located on the Parcel D site. The project plan calls for filling 0.63 acres of the wetlands for purposes of constructing a road and residential lots for Parcel D. Part of that 0.63-acre impact area, 0.11 acres, is comprised of a 760-foot-long, narrow drainageway, with 0.52 acres of adjacent wetland. Downstream of the fill area, 0.52 acres of higher quality wetland is to be preserved. Hines proposes to preserve 4.5 acres of existing wetland and 2.49 acres of upland, as well as to create .82 acres of forested wetland as mitigation for the proposed impact of the project. Additionally, as part of the project, Hines will implement a nutrient and pesticide management plan. The only pesticides to be used at the project will be approved by the Department of Agriculture for use with soil types prevailing at the site and only pesticides approved by the Environmental Protection Agency may be used on the site. All pesticides to be used on the project site must be selected to minimize impacts to ground and surface water, including having a maximum 70-day half-life. Stormwater Management System The majority of surface runoff from Parcel D will be diverted to a stormwater collection system and thence through drainage pipes and a swale into Phase I of Pond N. After treatment in Pond N, the water will discharge to an upland area adjacent to wetlands associated with Marshall Creek and then flow into Marshall Creek. The system will discharge to Marshall Creek. In addition to the area served by Pond N, a portion of lots fourteen though twenty drain through a vegetated, natural buffer zone and ultimately through the soil into Marshall Creek. Water quality treatment for that stormwater runoff will be achieved by percolating water into the ground and allowing natural soil treatment. The fifty-foot, vegetated, natural buffer is adequate to treat the stormwater runoff to water quality standards for Lots 14, 15 and 20. Lots 16, 17, 18 and 19, will have only a twenty-five foot buffer, so additional measures must be adopted for those lots to require either that the owners of them direct all runoff from the roofs and driveways of houses to be constructed on those lots to the collection system for Pond N or placement of an additional twenty-five foot barrier of xeriscape plants, with all non- vegetated areas being mulched, with no pesticide or fertilizer use. An additional mandatory permit condition, specifying that either of these measures must be employed for Lots 16, 17, 18 and 19, is necessary to ensure that water quality standards will be met. Pond N is a wet detention-type stormwater pond. Wet detention systems function similarly to natural lakes and are permanently wet, with a depth of six to twelve feet. When stormwater enters a wet detention pond it mixes with existing water and physical, chemical and biological processes work to remove the pollutants from the stormwater. Pond N is designed for a twenty-five year, twenty-four- hour storm event (design storm). The pre-development peak rate of discharge from the Pond N drainage area for the design storm event is forty cubic feet per second. The post-development peak rate of discharge for the design storm event will be approximately twenty-eight cubic feet per second. The discharge rate for the less severe, "mean annual storm" would be approximately eleven cubic feet per second, pre-development peak rate and the post-development peak rate of discharge would be approximately five cubic feet per second. Consequently, the post-development peak rate of discharge does not exceed the pre- development peak rate of discharge. Pond N is designed to meet the engineering requirements of Rule 40C-42.026(4), Florida Administrative Code. Because the pond is not designed with a littoral zone, the permanent pool volume has been increased by fifty-percent. Additionally, because Pond N discharges to the Class II waters of Marshall Creek, an additional fifty-percent of treatment volume is included in the pond design. The system design addresses surface water velocity and erosion issues through incorporation of best management practices promulgated by the District to prevent erosion and sedimentation, including; designing side slopes of 4:1; siding and seeding disturbed areas to stabilize soil; and the use of riprap at the outfall from Pond N. During construction, short- term water quality impacts will be addressed through installation of silt fences and hay bales. The majority of the eighteen-acre drainage basin which flows into the Parcel D wetland lies to the south and southwest of Parcel D. In accordance with the prior permit, water from those off-site acres will be intercepted and routed to stormwater ponds serving golf course holes sixteen and seventeen. The system design will prevent adverse impacts to the hydroperiod of remaining on-site and off-site wetlands. The remaining wetlands will be hydrated through groundwater flow. Surface waters will continue to flow to the wetlands adjacent to lots fourteen through twenty because drainage from those lots will be directed across a vegetated, natural buffer to those wetlands. There is no diversion of water from the natural drainage basin, because Pond N discharges to a wetland adjacent to Marshall Creek, slightly upstream from the current discharge point for the wetland which is to be impacted. This ensures that Marshall Creek will continue to receive that fresh-water source. An underground "PVC cut-off wall" will be installed around Pond N to ensure that the pond will not draw down the water table below the wetlands near the pond. Pond N has been designed to treat stormwater prior to discharge, in part to remove turbidity and sedimentation. This means that discharge from the pond will not carry sediment and that the system will not result in shoaling. There will be no septic tanks in the project. The system is a gravity flow system with no mechanical or moving parts. It will be constructed in accordance with standard industry materials readily available and there will be nothing extraordinary about its design or operation. The system is capable of being effectively operated and maintained and the owner of the system will be the Marshall Creek Community Development District (CDD). Water Quality Water entering Pond N will have a residence time of approximately 200 days or about fifteen times higher than the design criteria listed in the below-cited rule. During that time, the treatment and removal process described herein will occur, removing most of the pollutants. Discharge from the pond will enter Marshall Creek, a Class II water body. The discharges must therefore meet Class II water quality numerical and anti-degradation standards. The design for the pond complies with the design criteria for wet detention systems listed in Rule 40C-42.026(4), Florida Administrative Code. In addition to meeting applicable design criteria, the potential discharge will meet water quality standards. The pond will have low levels of nitrogen and phosphorous resulting in low algae production in the pond. The long residence time of the water in the pond will provide an adequate amount of time for pesticides to volatilize or degrade, minimizing the potential for pesticide discharge. Due to the clear characteristics of the water column, neither thermal stratification nor chemical stratification are expected. Periodically, fecal coliform and total coliform levels are exceeded under current, pre-development conditions. These are common natural background conditions. Because the detention time in the pond will be an average of 200 days, and because the life span of fecal coliform bacteria is approximately seven to fourteen days the levels for coliforms in the pond will be very low. Discharges from the pond will enhance water quality of the Class II receiving waters because the levels of fecal coliform and total coliform will be reduced. The discharge will be characterized by approximately 100 micrograms per liter total nitrogen, compared with a background of 250 micrograms per liter presently existing in the receiving waters of Marshall Creek. The discharge will contain approximately three micrograms per liter of phosphorous, compared with sixty-three micrograms per liter presently existing in Marshall Creek. Total suspended solids in the discharge will be less than one-milligram per liter compared with seventy-two milligrams per liter in the present waters of Marshall Creek. Biochemical oxygen demand will be approximately a 0.3 level in the discharge, compared with a level of 2.4 in Marshall Creek. Consequently, the water quality discharging from the pond will be of better quality than the water in Marshall Creek or the water discharging from the wetland today. The pollutant loading in the discharge from the stormwater management system will have water quality values several times lower than pre-development discharges from the same site. Comparison of pre-development and post-development mass loadings of pollutants demonstrates that post-development discharges will be substantially lower than pre-development discharges. Currently, Marshall Creek periodically does not meet Class II water quality standards for dissolved oxygen. Construction and operation of the project will improve water quality in the creek concerning dissolved oxygen values because discharges from Pond N will be subjected to additional aeration. This results from design features such as discharge from the surface of the system, where the highest level of dissolved oxygen exists, and the discharge water draining through an orifice and then free falling to a stormwater structure, providing additional aeration. Discharges from the system will maintain existing uses of the Class II waters of Marshall Creek because there will be no degradation of water quality. Discharges will not cause new violations or contribute to existing violations because the discharge from the system will contain less pollutant loading for coliform and will be at a higher quality or value for dissolved oxygen. Discharges from the system as to water quality will not adversely affect marine fisheries or marine productivity because the water will be clear so there will be no potential for thermal stratification; the post-development discharges will remain freshwater so there will be no change to the salinity regime; and the gradual pre-development discharges will be replicated in post-development discharges. Several factors minimize potential for discharge of pesticide related pollutants: (1) only EPA-approved pesticides can be used; (2) only pesticides approved for site-specific soils can be used; (3) pesticides must be selected so as to minimize impacts on surface and groundwater; (4) pesticides must have a maximum half-life of 70 days; and (5) the system design will maximize such pollutant removal. Archaeological Resources The applicant conducted an archaeological resource assessment of the project and area. This was intended to locate and define the boundaries of any historical or archaeological sites and to assess any site, if such exists, as to its potential eligibility for listing in the National Register of Historic Places (National Register). Only a portion of one archaeological site was located on the project tract. Site 8SJ3473, according to witness Anne Stokes, an expert in the field of archaeological assessment, contains trace artifacts dating to the so-called "Orange Period," a time horizon for human archaeological pre-history in Florida dating to approximately 2,300 B.C. The site may have been only a small campsite, however, since only five pottery fragments and two chert flakes, residuals from tool-making were found. Moreover, there is little possibility that the site would add to knowledge concerning the Orange Period or pre-history because it is a very common type of site for northeast Florida and is not an extensive village site. There are likely other campsites around and very few artifacts were found. No artifacts were found which would associate the site with historic events or persons. The applicant provided the findings of its cultural resource assessment, made by Dr. Stokes, to the Florida Division of Historical Resources. That agency is charged with the responsibility of reviewing cultural resource assessments to determine if significant historic or archaeological resources will be impacted. The division reviewed the survey techniques used by Dr. Stokes, including shovel testing, sub-surface testing and pedestrian walk-over and investigation. The division determined that the site in question is not of a significant historical or archaeological nature as a resource because it does not meet any of the four criteria for inclusion in the National Register.1 Thus the referenced agency determined that the site in question is not a significant historical or archaeological resource and that construction may proceed in that area without further investigation, insofar as its regulatory jurisdiction is concerned. Wetlands The wetlands to be impacted by the project consist of a 1,000 foot drainage-way made up of a 0.11 acre open-water channel, approximately four feet wide, and an adjacent vegetated wetland area of approximately 0.52 acres containing fewer than 30 trees. The open-water channel is intermittent in that it flows during periods of heavy rainfall and recedes to a series of small, standing pools of water during drier periods. The Parcel D wetland is hydrologically connected to Marshall Creek, although its ephemeral nature means that the connection does not always flow. The wetland at times consists only of isolated pools that do not connect it to Marshall Creek. Although it provides detrital material export, that function is negligible because the productivity of the adjacent marsh is so much greater than that of the wetland with its very small drainage area. Because of the intermittent flow in the wetland, base flow maintenance and nursery habitat functions are not attributed to the wetland. The Parcel D wetland is not unique. The predominant tree species and the small amount of vegetated wetland are water oak and swamp bay. Faunal utilization of the wetland is negligible. The wetland drainage-way functions like a ditch because it lacks the typical characteristics of a creek, such as a swampy, hardwood floodplain headwater system that channelizes and contains adjacent hardwood floodplains. The location of the wetland is an area designated by the St. Johns County comprehensive plan as a development parcel. The Florida Natural Areas Inventories maps indicate that the wetland is not within any unique wildlife or vegetative habitats. The wetland is to be impacted as a freshwater system and is not located in a lagoon or estuary. It contains no vegetation that is consistent with a saltwater wetland. The retaining wall at the end of the impact area is located 1.7 feet above the mean high water line. Wetland Impacts The proposed 0.63 acre wetland impact area will run approximately 760 linear feet from the existing trail road to the proposed retaining wall. If the wetland were preserved, development would surround the wetland, adversely affecting its long-term functions. Mitigation of the wetland functions is proposed, which will provide greater long-term ecological value than the wetland to be adversely affected. The wetland to be impacted does not provide a unique or special wetland function or good habitat source for fish or wildlife. The wetland does not provide the thick cover that would make it valuable as Black Bear habitat and is so narrow and ephemeral that it would not provide good habitat for aquatic-dependent and wetland-dependent species. Its does not, for instance, provide good habitat for woodstorks due to the lack of a fish population and its closed- in tree canopy. Minnow sized fish (Gambusia) and crabs were seen in portions of the wetland, but those areas are downstream of the proposed area of impact. Mitigation Mitigation is offered as compensation for any wetland impacts as part of an overall mitigation plan for the Marshall Creek DRI. The overall mitigation plan is described in the development order, the mitigation offered for the subject permit and mitigation required by prior permits. A total of 27 acres of the more than 287 acres of wetlands in the total 1,300-acre DRI tract are anticipated to be impacted by the DRI. Approximately 14.5 acres of impacted area out of that 27 acres has already been previously authorized by prior permits. The overall mitigation plan for the DRI as a whole will preserve all of the remaining wetlands in the DRI after development occurs. Approximately one-half of that preserved area already has been committed to preservation as a condition of prior permits not at issue in this case. Also, as part of prior permitting, wetland creation areas have been required, as well as preserved upland buffers which further protect the preserved wetlands. The mitigation area for the project lies within the Tolomato River Basin. The development order governing the total DRI requires that 66 acres of uplands must also be preserved adjacent to preserved wetlands. The overall mitigation plan for the DRI preserves or enhances approximately 260 acres of wetlands; preserves a minimum of 66 acres of uplands and creates enhancement or restores additional wetlands to offset wetland impacts. The preserved wetlands and uplands constitute the majority of Marshall Creek, and Stokes Creek which are tributaries of the Tolomato River Basin, a designated Outstanding Florida Water (OFW). Preservation of these areas prevents them from being timbered and ensures that they will not be developed in the future. The overall DRI mitigation plan provides regional ecological value because it encompasses wetlands and uplands they are adjacent to and in close proximity to the following regionally significant resources: (1) the 55,000 acre Guana- Tolomato-Matanzas National Estuarine Research Reserve; (2) the Guana River State Park; (3) the Guana Wildlife Management Area; (4) an aquatic preserve; (5) an OFW; and (6) the 22,000 acre Cummer Tract Preserve. The mitigation plan will provide for a wildlife corridor between these resources, preserve their habitat and insure protection of the water quality for these regionally significant resources. The mitigation offered to offset wetland impacts associated with Parcel D includes: (1) wetland preservation of 0.52 acres of bottom land forest along the northeast property boundary (wetland EP); (2) wetland preservation of 3.98 acres of bottom land forest on a tributary of Marshall Creek contained in the DRI boundaries (Wetlands EEE and HHH); (3) upland preservation of 2.49 acres, including a 25-foot buffer along the preserved Wetlands EEE and HHH and a 50-foot buffer adjacent to Marshall Creek and preserved Wetland EP; (4) a wetland creation area of 0.82 acres, contiguous with the wetland preservation area; and (5) an upland buffer located adjacent to the wetland creation area. The wetland creation area will be graded to match the grades of the adjacent bottomland swamp and planted with wetland tree species. Small ponds of varying depths will be constructed in the wetland creation area to provide varying hydrologic conditions similar to those of the wetland to be impacted. The wetland creation area is designed so as to not de-water the adjacent wetlands. All of the mitigation lands will be encumbered with a conservation easement consistent with the requirements of Section 704.06, Florida Statutes. The proposed mitigation will offset the wetland functions and values lost through the wetland impact on Parcel D. The wetland creation is designed to mimic the functions of the impact area, but is located within a larger ecological system that includes hardwood wetland headwaters. The long-term ecological value of the mitigation area will be greater than the long-term value of the wetland to be impacted because; (1) the mitigation area is part of a larger ecological system; (2) the mitigation area is part of an intact wetland system; (3) the wetland to be impacted will be unlikely to maintain its functions in the long-term; and (4) the mitigation area provides additional habitat for animal species not present in the wetland to be impacted. Certain features will prevent adverse secondary impacts in the vicinity of the roadway such as: (1) a retaining wall which would prevent migration of wetland animals onto the road; (2) a guard rail to prevent people from moving from the uplands into wetlands; and (3) a vegetated hedge to prevent intrusion of light and noise caused by automotive use of the roadway.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered granting the subject application for modification of Permit 4-109-0216A-ERP so as to allow construction and operation of the Parcel D project at issue, with the addition of the inclusion of a supplemental permit condition regarding the vegetated natural buffers for Lots 16 through 19 described and determined above. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of April, 2001.
