The Issue The issue for determination is whether Respondent Leon County School Board should be issued a dredge and fill permit to excavate and backfill in connection with the installation of sewage collection system pipes beneath the Alford Arm of Lake Lafayette in Leon County.
Findings Of Fact On April 13, 1989, the Board submitted a permit application to DER for the dredge and fill permit which forms the basis for this proceeding. The project represented in the dredge and fill application consisted of installation of two sewage collection system pipes beneath the Alford Arm of Lake Lafayette. Installation would be accomplished by excavating and backfilling two trenches, each approximately 50 feet long by four feet wide by two feet deep. The pipes to be installed in the trenches adjacent to Buck Lake Road are one 15-inch gravity main and one 14-inch force main. A total of 15 cubic yards of soil was proposed for excavation and replacement. The project area consisted of less than 100 square feet. The Alford Arm in the project's vicinity is a canal dredged in the 1920's and 1930's. Neither the Alford Arm nor Lake Lafayette constitute Outstanding Florida Waters (OFW), instead these water bodies are Class III Waters. On April 14, 1989, DER staff conducted an inspection of the project site, completed a permit application appraisal of the project, and issued permit no. 371633191 for the project. On the same day, the permit was withdrawn when it was discovered that the document had been signed by an unauthorized official. On April 20, 1989, DER again issued permit no. 371633191 to the Board for the project. The dredging, pipe installation, and backfilling were subsequently completed. Water Quality Since the dredging and filling could potentially produce short-term turbidity in the Alford Arm as a result of sediment entering the water, a specific condition of the permit required the placement of a row of staked hay bales downstream from the project site prior to construction and thereafter until re- vegetation of the site had occurred. By compliance with this turbidity control measure, reasonable assurance was provided by the Board that violations of state water quality standards would not result from the project construction. The project did not cause any violations of DER water quality criteria for turbidity or any other water quality criteria. Numerous technological advances and safeguards built into the sewer lines and lift stations make probability of any leakage very remote. Petitioner's concern with regard to potential for leakage from the collection system lines and the lift stations to cause water quality problems in the Alford Arm is not supported by any competent substantial evidence of record regarding statistical frequency and probability of such occurrences. Further, there is no such evidence of infirmities regarding design soundness or the functional history of the pipe used in the project. Public Interest DER evaluated the project in accordance with the criteria of Section 403.918(2), Florida Statutes, prior to issuance of the permit. Another review has now been completed approximately two years after completion of the project. The project has not and will not cause any adverse impacts on public health, safety, welfare, or property of others. Likewise, the project has not caused adverse impacts on significant historical or archaeological resources. Similarly, no adverse impacts on the conservation of fish or wildlife, including endangered or threatened species or their habitats has or will result from the project. Interestingly, woodstorks have been observed feeding in the very vicinity of the project as recently as May 28, 1991, more than two years after completion of the project. No adverse impacts have or will be visited upon navigation or flow of the water. No harmful erosion or shoaling has or will result from the project. The project has not and will not cause any adverse impacts on fishing, recreational values or marine productivity in the vicinity of the project. The impacts of this dredge and fill project were temporary. The dredged and filled area has re-vegetated with the same species, pickerelweed and smartweed. Wetland functions of the site that existed prior to the project were minimal and have been re-established. Cumulative And Secondary Impacts Cumulative impacts from similar projects were not evidenced at the final hearing. There are no projects proposed which are closely linked or causally related to the dredge and fill project. The only non-speculative secondary impact from the project was possible leakage of wastewater from the collection system lines and lift station. The probability of such leakage is very low. Particularly in view of the geographical area, engineering design and manufacture of the pipes and waste collection system, such probability is speculative and minimal or non-existent in the absence of competent substantial evidence regarding statistical frequency of such an event. The construction of the sewage collection system with which the project is associated is a result of growth in the geographic area. While the project has not been established to induce growth in the area, such development would not affect Lake Lafayette since the collection system currently installed has a 400 gallon per minute capability, or the ability to serve 400 residential connections. Prior to issuance of the dredge and fill permit, 800 existing residential lots were platted along Buck Lake Road within two miles east and two miles west of the project site. Since the system could be upgraded to accommodate 1600 residential units, the potential increase that could result from the project in any event is an additional 800 residential units. If these additional residences are built at the very high density of one per quarter acre, these lots would cover only approximately two-thirds of a square mile or less than one percent of the Lake Lafayette drainage basin of approximately 80 square miles. Such development would have no measurable impact on Lake Lafayette.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered approving the issuance of permit number 371633191 to the Board. RECOMMENDED this 9th day of August, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2752 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None Submitted. Respondent Board's Proposed Findings: 1.-17. Adopted in substance. Respondent Department's Proposed Findings: 1.-24. Adopted in substance. COPIES FURNISHED: Terri Saltiel 7769 Deep Wood Trail Tallahassee, FL 32311 Richard A. Lotspeich, Esq. John T. LaVia, III, Esq. P.O. Box 271 Tallahassee, FL 32302 Michael Donaldson, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in DOAH Case No. 98-3901 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to a maintenance dredging exemption from environmental resource permitting. The issue in DOAH Case No. 98-5409 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to an environmental resource permit for the construction of a surface water management system.
Findings Of Fact The Parties Respondent Deep Lagoon Boat Club, Ltd. (Applicant), owns and operates Deep Lagoon Marina. In DOAH Case No. 98-3901, Petitioner and Intervenor challenge Applicant's claim of an exemption to maintenance dredge three canals serving the marina. In DOAH Case No. 98-5409, Petitioner challenges Applicant's request for an environmental resource permit to construct and operate a surface water management system on the uplands on which the marina is located. By stipulation, Petitioner has standing. Intervenor is a nonprofit organization of natural persons, hundreds of whom reside in Lee County. The primary purpose of Intervenor is to protect manatees and their habitat. Many of the members of Intervenor use and enjoy the waters of the State of Florida, in and about Deep Lagoon Marina, and would be substantially affected by an adverse impact to these waters or associated natural resources, including manatees and their habitat. Deep Lagoon Marina is within the jurisdiction of the South Florida Water Management District (SFWMD). By agreement with SFWMD, Respondent Department of Environmental Protection (collectively, with the predecessor agency, DEP) is the agency with permitting jurisdiction in DOAH Case No. 98-5409. The Marina Deep Lagoon is a short, largely mangrove-lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico. Deep Lagoon Marina is on Deep Lagoon, less than one-half mile from the Caloosahatchee River. Deep Lagoon Marina comprises uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings. One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns the uplands and either owns the submerged bottoms of the canals or has a legitimate claim to such ownership. The attorney who examined the title at the time of the 1997 conveyance testified that the canals are entirely landward of the original mean high water line, so that the then-owner excavated the canals out of privately owned upland. Thus, the attorney opined that the canal bottom is privately owned. Some question may exist as to the delineation of the historic mean high water line, especially regarding its location relative to the waterward edge of the red mangrove fringe, which DEP would consider part of the historic natural waterbody. There may be some question specifically concerning title to the bottom of the northernmost canal where it joins Deep Lagoon. However, the proof required of Applicant for present purposes is considerably short of the proof required to prove title, and the attorney's testimony, absent proof to the contrary, is sufficient to demonstrate the requisite ownership interest to seek the exemption and permit that are the subject of these cases. From north to south, Deep Lagoon Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard. Manatees and Boating The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food. Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed. Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink. Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch. Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. Water Quality The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself. The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria. In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season. In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits. Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls. In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the 60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season. In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record. As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample. However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one-day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours. Original Permit There are three types of permits relevant to these cases. The first is a dredge and fill permit (sometimes referred to in the record as a wetland resource permit or water resource permit)(DAF permit). The second is a surface water management (sometimes referred to in the record as a management and storage of surface water (MSSW) permit or stormwater management permit)(SWM permit). The third is an environmental resource permit (ERP). Several years ago, responding to a mandate from the Legislature, DEP and the water management districts consolidated DAF permits, which historically were issued by DEP, and SWM permits, which historically were issued by the water management districts, into ERPs. At the time of this change, DEP adopted, within the jurisdictional areas of each water management district, certain of the rules of each district. In 1988, DEP issued a DAF permit to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit. However, Applicant would be able to construct approximately 89-113 new wet slips, with an additional 14,440 square feet of overwater decking, so as to raise its marina capacity to 150-174 wet slips. Applicant also plans to construct 227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant. In general, the Original Permit authorizes Applicant to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom to remove contaminated sediments, backfilling 2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a 400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities. The record contains various references to "MLW" or "mean low water," "MHW" or "mean high water," and "NGVD" or "National Geodetic Vertical Datum." The drawings attached to the Original Permit state that MHW equals 0.96 feet NGVD and MLW equals about 0.40 feet NGVD. The Original Permit authorizes activities to proceed in three phases: First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9. Specific Condition 5 imposes several requirements designed "to ensure a net improvement in water quality." Among these requirements is that Applicant must obtain the ERP that is the subject of DOAH Case No. 98-5409 (New Permit). Specific Condition 5 states: In order to ensure a net improvement to water quality within the basin, the construction of any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been met. . . . A baseline water quality study . . .. A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . . The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. [As cited, this subparagraph contains modifications stated in a letter dated March 26, 1997, from DEP to Applicant's predecessor in interest.] Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least -10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site which does not have a point of discharge to waters of the state. A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing. * * * K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department. Specific Condition 8 addresses the phasing of occupancy of the wet slips. Specific Condition 8 provides: Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be removed. . . . Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling 117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent. Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent. * * * Specific Condition 11 adds: Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees. Specific Condition 12 requires the construction of a 400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibits liveaboards at the marina. Specific Condition 15 adds various manatee-protection provisions. Plan Views C and D, which are part of the Original Permit, depict submerged bottom elevations for the north and central canals, as well as from the south canal at its intersection with the central canal. Dated August 30, 1995, these "existing" bottom elevations across the mouth of the north canal are about -7, -8, and -4 feet (presumably MLW; see second note to Plan View B). The western two-thirds of the north canal passes over bottoms of about -6 feet MLW. Proceeding east, the bottom deepens to -7 to -9 feet MLW before it tapers up to -7, -6, and finally -3 feet MLW at the head; and the eastern third of the north canal passes over bottoms of about -7 feet MLW that tapers up to -6 feet and -3 feet MLW. The submerged bottom at the mouth of the central canal is about -8 to -9 feet MLW. The bottom drops to -6 to -10 feet MLW at the intersection with the south canal. Proceeding east, the bottom deepens slightly as it reaches the head, where it is -8 feet MLW. The submerged bottom of the south canal runs from -9 feet MLW at the intersection with the central canal and runs about 0.5 feet deeper at the head. Petitioner and others challenged the issuance of the Original Permit in 1988. The permit challengers appealed a final order granting the Original Permit and certifying, under the federal Clean Water Act, that state water quality standards were met. DEP premised its certification on the concept that water quality standards encompassed a net improvement in water quality of the poorly flushed canals. In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the above-described 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count." However, the court affirmed the issuance of the Original Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters. On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DEP's certification of the activity as in compliance the federal Clean Water Act. Following remand, DEP issued a final order issuing the Original Permit. On the certification issue, the final order revoked the earlier certification of compliance and, citing 33 United States Code Section 1341 as authority, waived certification as a precondition to federal permitting. Maintenance Dredging: DOAH Case No. 98-3901 Background The contentions of Petitioner and Intervenor as to maintenance dredging are: the proposed dredging exceeded what was necessary to restore the canals to original design specifications or original configurations; the proposed dredging exceeded the maximum depth allowable for maintenance dredging of canals; the work was not conducted in compliance with Section 370.12(2)(d), Florida Statutes; the spoil was not deposited on a self-contained upland site to prevent the escape of the spoil into waters of the state; and the dredge contractor did not use control devices and best management practices for erosion and sediment control to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter describes the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assures that Applicant's contractor will use turbidity curtains "around the dredging and spoil unloading operation" and advises that the contractor will unload the spoil "to the north peninsula upland area." The letter states that the dredging "will be to the design depth/existing canal center line depth of -7 NGVD," which was established by the Original Permit, and will be "done in conjunction with the required dredging under [Original Permit] Condition 5(D)." The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divide the dredging into two areas. For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals (for the south canal, a portion running from the head along the northeast half of the canal) and then replace these materials with clean backfill material. This information is for background only, as the Original Permit authorized this contaminant dredging. For 4.84 acres, which run through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter. The cross-sections for the north canal reveal relatively extensive dredging beyond the vegetation lines on both sides of the canal bottom. The dredging would extend up to, but not beyond, the edges of the prop roots of the mangroves on both sides of the canal bottom. The contours reveal variable, proposed slope profiles for the submerged sides of the canals, but the dredging would substantially steepen the submerged slopes of the north canal. It is difficult to estimate from the cross-sections the average depth and width to be dredged from the north canal, but it appears that the cross-sections proposed the removal of substantial spoil (an average of 4-6 feet) from areas from 20-40 feet from each side of the deepest point in the north canal. The dredging would alter the two most affected cross-sections, which are just inside the mouth of the north canal, by widening the deepest part of the canal bottom by 85 feet--from about 15 feet to about 100 feet. The drawings proposed much smaller alterations to the bottoms of the central and south canals: typically, spoil about 2 feet deep and 20 feet wide. All but one of the cross-sections revealed that spoil would be dredged only from one side of the deepest point. Additionally, the dredging in these canals would not involve any submerged vegetation; all but one of the canal sides was lined by existing seawalls. By letter dated March 13, 1998, DEP stated that it had determined that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement that the Applicant obtain an ERP. The letter warns that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter adds that DEP may revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provides a point of entry for persons whose substantial interests are affected by DEP's determination. Following receipt of DEP's letter acknowledging the exemption, Applicant's contractor proceeded to maintenance dredge the three canals. The dredging of the north canal took eight weeks. Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the Original Permit. As indicated in the March 3 letter and permitted in the Original Permit, the contaminant dredging took place at the dead-end heads of the north and central canals and along the northeast half of a slightly longer section of the south canal, starting from its dead-end head. In maintenance dredging the canals, Applicant's contractor did not exceed the specifications regarding depth and width stated in its March 3 letter. To the contrary, the contractor sometimes dredged slightly narrower or slightly shallower profiles than stated in the March 3 letter. For example, the contractor dredged the north canal to -6 feet NGVD (or -5.6 feet MLW), rather than -7 feet NGVD, as shown in the March 3 letter. The Depths, Widths, and Lengths of Dredging The March 3 letter asserts that -7 feet NGVD is the permitted elevation of the canal bottoms, pursuant to the Original Permit. This is incorrect in two respects. First, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect for all but the relatively small part of each canal that DEP has determined is contaminated. The Original Permit specifies design elevations for canal bottoms only in the contaminated area within each canal. Nothing in the Original Permit permits bottom elevations for any portion of the bottoms of the three canals outside of these three contaminated areas. Second, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect, even for the contaminated areas. The March 3 letter states -7 feet NGVD, but the Original Permit specifies bottom elevations, for contaminated areas only, of -7 feet MLW in the south and central canals and -6 feet MLW in the north canal. Thus, due to the differences between NGVD and MLW, the March 3 letter proposes dredging that would deepen the south and central canals by about five inches deeper than the depth permitted in the Original Permit and the north canal by one foot five inches deeper than the depth permitted in the Original Permit. Moreover, nothing in the record clearly establishes all aspects of the original design specifications of the three canals, whether permitted or not, or even all aspects of their original dredged configurations, if not permitted. There is no dispute concerning one aspect of the dredged configuration of the three canals: their lengths. Although there may be some dispute as to the original mean high water line near the mouths of the north and central canals, the original length of the canals is evident from the uplands that presently define them. As to the depth of the canals, although direct evidence is slight, Applicant has sufficiently proved indirectly the depths of the mouths of the canals pursuant to original design specifications or, if not designed, original configurations. The proved bottom elevations are -7 feet NGVD for each canal. Applicant proved these depths based on the prevailing elevations in Deep Lagoon in the vicinity of the mouths of the north and central canal and bottom elevations in areas of Deep Lagoon that are not prone to sedimentation. Additional proof of the bottom elevation of -7 feet NGVD at the mouths of the canals is present in the slightly higher permitted bottom elevations at the dead- ends of the north and central canals and landward portion of the south canal. There is some problem, though, with the proof of the depth of the canal bottoms between their mouths and heads (or, for the south canal, its landward portion of known contamination). Although the problem of the depth of the canals between their heads and mouths might be resolved by inferring a constant bottom elevation change from the deeper mouth to the shallower head, an unresolveable issue remains: the width of this maximum depth. As already noted, without deepening the deepest part of either cross-section, the contractor widened the deepest points along two cross-sections by 85 feet each. In terms of navigability and environmental impact, the width of the maximum depth of a canal is as important as its maximum depth. As to the width of the lowest bottom elevations of the canals, Applicant has produced no proof of original design specifications or, if not designed, original configurations. Nor has Applicant produced indirect proof of historic widths. Nothing in the record supports an inference that Applicant's predecessor in interest originally dredged the canal bottoms as wide as Applicant "maintenance" dredged them under the claimed exemption. Nothing in the record supports an inference that Applicant's predecessor geometrically dredged the canals so that their sides were perpendicular to their bottoms. Nothing in the record describes a sedimentation problem that might have narrowed the canals by such an extent that the dredging of the present widths, especially in the north canal, would be restorative. Nothing in the record even suggests that the original motive in dredging was navigability, which might have yielded relatively wide canal bottoms, versus upland fill, which would yield canal bottoms as wide as needed, not for navigability, but for uplands- creation. After consideration of all the evidence, no evidence supports a finding that the proposed dredging profiles, in terms of the widening of the areas of lowest elevation in each canal bottom, bear any resemblance whatsoever to the original canal profiles, as originally (or at any later point) designed or, if not designed, as originally (or at any later point) configured. It is at least as likely as not that this is the first time that these canal bottoms, especially the north canal bottom, have ever been so wide at any bottom elevation approaching -7 feet NGVD. There is simply no notion of restoration or maintenance in the dredging that produced these new bottom profiles for these three canals. Transforming MLW to NGVD, -5 feet MLW is -4.6 feet NGVD. All proposed and actual maintenance dredging in the three canals dredged the canal bottoms to elevations lower than -5 feet MLW (or -4.6 feet NGVD), despite the absence of any previous permit for construction or maintenance of the canal from the Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers. Impact of Dredging on Manatees and Spoil Containment Prior to dredging, Applicant deployed turbidity curtains around the mouths of the two canals that discharge directly into Deep Lagoon. In this case, the turbidity curtains performed two functions. They contained turbidity and resuspended bottom contaminants within the mixing zone behind (or landward of) the curtains, and they excluded manatees from the dangerous area behind the curtains where the dredging was taking place. Petitioner and Intervenor object to the use of the turbidity curtains on two general grounds. First, they claim that the curtains failed to contain turbidity and resuspended contaminants from escaping the mixing zone. Second, they claim that the curtains adversely affected manatees. As executed, the maintenance dredging did not result in the release of turbidity or resuspended contaminants outside of the mixing zone due to the use of turbidity curtains. Applicant's contractor ensured that the curtains extended from the water surface to the canal bottom and sufficiently on the sides to prevent the escape of turbidity or resuspended contaminants. Although the March 3 letter did not indicate where the contractor would deploy the turbidity curtains, the important point, in retrospect, is that the contractor properly deployed the curtains. There is some question whether turbidity or resuspended contaminants flowed across the mangrove fringe and into the Iona Drainage District ditch. Applicant's witness testified that water flows across the fringe only during the highest three or four tides per month. Petitioner and Intervenor's witness testified that water flows across the fringe as often as twice per day. The actual frequency is likely somewhere between these two extremes, but, regardless of the frequency, there is insufficient evidence to find that any turbidity or resuspended contaminants flowed from the north canal into the Iona Drainage District ditch. Nor did the deployment of the turbidity curtains injure, harm, possess, annoy, molest, harass, or disturb any manatees. Applicant and its contractor carefully checked each canal for manatees before raising the turbidity curtains at the mouth of each canal, so as not to trap any manatees in the area behind the curtains. By ensuring that the curtains extended to the canal bottom and extended fully from side to side, they ensured that the curtains excluded manatees during the dredging. There is no evidence that a manatee could have entered the north canal from the Iona Drainage District ditch by crossing the red mangrove fringe; any breaks in the fringe were obstructed by prop roots that prevented even a kayaker from crossing the fringe without portaging. Applicant and its contractor checked for manatees during dredging operations. Petitioner and Intervenor contend that the mere presence of the turbidity curtains in an area frequented by manatees adversely affected the animals. However, this argument elevates a speculative concern with a manatee's response to encountering an obstruction in its normal path over the practical purpose of curtains in physically obstructing the animal so as to prevent it from entering the dangerous area in which the dredge is operating, as well as the unhealthy area of turbidity and resuspended contaminants in the mixing zone. Under the circumstances, the use of the turbidity curtains to obstruct the manatees from visiting the dredging site or mixing zone did not adversely affect the manatees. In general, there is no evidence of any actual injury or harm to any manatees in the course of the dredging or the preparation for the dredging, including the deployment of the turbidity curtains. Petitioner and Intervenor offered evidence that maintenance dredging would result in more and larger boats and deterioration of water quality, which would both injure the manatees. However, as noted in the conclusions of law, the Administrative Law Judge excluded from DOAH Case No. 98-3901 such evidence concerning long-term impacts upon the manatees following the dredging. As for spoil containment, Applicant's contractor segregated the contaminated spoil from noncontaminated spoil by placing the contaminated spoil in a lined pit in the uplands. The contractor also brought onto the uplands clean fill mined from a sand quarry for backfilling into the dredged contaminated areas. There is evidence of the clean fill subsiding from its upland storage site and entering the canal waters in the mixing zone. Partly, this occurred during the loading of the barge, which transported the clean fill to the dead-end heads of the canals where the fill was placed over the newly dredged bottoms. The fill escaped into the water at a location about 100 feet long along the north seawall of the central canal, but the evidence does not establish whether this location was within the contaminated area at the head of the canal or whether the maintenance or contaminant dredging had already taken place. If the fill subsided into the water inside of the contaminated head of the south canal and the subsidence occurred prior to the contaminant dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water inside the contaminated head of the south canal and the subsidence occurred after the contaminant dredging, the subsidence was harmless because the contractor intended to add the fill at this location. If the fill subsided into the water outside of the contaminated head of the south canal and the subsidence occurred prior to maintenance dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water outside the contaminated head of the south canal and the subsidence occurred after the maintenance dredging, the subsidence was harmless because it restored the canal bottom to a higher elevation following the dredging to an excessively low elevation. The subsidence of the clean fill into the water along the north side of the central canal is the only material that entered the water from the uplands during the dredging. Specifically, there is no evidence of dredged spoil entering the water from the uplands during or after the dredging. There is also no evidence that the maintenance dredging significantly impacted previously undisturbed natural areas. There is no evidence of such areas within the vicinity of Deep Lagoon Marina. New Permit: DOAH Case No. 98-5409 New Permit Seeking to satisfy certain of the requirements of Original Permit Specific Condition 5, Applicant filed with DEP, on December 10, 1997, an application for an ERP and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. Prior to its reformulation as an ERP, the New Permit sought by Applicant would have been a SWM permit. The application notes that the general upland elevation is 5 feet NGVD and that stormwater runoff presently sheetflows directly to adjacent waterways without any treatment. During the application process, Applicant's engineer Christopher Wright, submitted a letter dated February 27, 1998, to Jack Myers, who is a Professional Engineer II for DEP. In response to a request from DEP for a "written procedure . . . to assure the proper functioning of the proposed . . . system," the letter states: Since the system is not designed as a retention system and does not rely upon infiltration to operate properly[,] operation and maintenance is minimal. Items that will need regular maintenance are limited to removal of silt and debris from the bottom of the drainage structures and the bleed down orifice of the control structure. A maintenance and inspection schedule has been included in this re-submittal as part of Exhibit 14. In relevant part, Exhibit 14 consists of a document provided Mr. Wright from the manufacturer of the components of the surface water management system. The document states that the manufacturer "recommends that the landowner use this schedule for periodic system maintenance . . .." The document lists 16 sediment-control items, but it is unclear whether all of them are incorporated into the proposed system. Four items, including sediment basins, require inspections quarterly or after "large storm events" and maintenance consisting of the removal of sediment; the "water quality inlet" requires inspections quarterly and maintenance consisting of "pump[ing] or vacuum[ing]"; the "maximizer settling chamber" requires inspection biannually and maintenance consisting of "vacuum[ing] or inject[ing] water, suspend silt and pump chamber"; and the "chamber" requires inspection annually and the same maintenance as the maximizer settling chamber. The proposed system includes the water quality inlet and one of the two types of chambers. By Notice of Intent to Issue dated November 5, 1998, DEP provided notice of its intent to issue the New Permit and certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code Section 1341. On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the Original Permit, DEP again waived state water quality certification. This waiver is consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes. The notices of intent (collectively, NOI) recite the recent permitting history of the marina. This history includes the Original Permit, a since-expired MSSW permit issued in 1988 by SFWMD, and then-pending requests--apparently all since granted--to revise the Original Permit by replacing the flushing canal with culverts, relocating a travel lift from the main canal to the north canal, and adding liveaboards to the marina. (Although mentioned below, these revisions, in and of themselves, do not determine the outcome of DOAH Case No. 98-5409.) Reviewing the proposed development for the site, the NOI states that the northerly part of the project would contain an indoor dry boat storage barn, a marina service operation consisting of a ship store and miscellaneous buildings, a harbor master building, an upgraded fueling facility, a parts and service center, a restaurant, retail and commercial facilities, and paved parking areas. The southerly part of the project would contain a new indoor dry boat storage barn, a boat dealership building, and paved parking areas in place of the existing buildings. The NOI states that the proposed water quality treatment system would comprise dry detention systems of several underground vaults with an overall capacity based on the total impervious area, including roofs, receiving 2.5 inches of rain times the percentage of imperviousness. Given the relatively high imperviousness of the finished development, this recommended order considers the percentage of imperviousness to be 100, but ignores the extent to which the post-development pervious surfaces would absorb any rainfall. For storms producing up to 2.5 inches of runoff, the proposed surface water management system, of which the underground vaults are a part, would trap the runoff and provide treatment, as sufficiently sized contaminants settled into the bottom of the vaults. Because the vaults have unenclosed bottoms, the proposed system would provide incidental additional treatment by allowing stormwater to percolate through the ground and into the water table. However, the system is essentially a dry detention system, and volumetric calculations of system capacity properly ignored the incidental treatment available through percolation into the water table. The New Permit notes that the wet season water table is 1.2 feet NGVD, and the bottom of the dry detention system is 2.5 feet NGVD. This relatively thin layer of soil probably explains why DEP's volumetric calculations ignored the treatment potential offered by percolation. The relatively high water table raises the possibility, especially if Applicant does not frequently remove the settled contaminants, that the proposed system could cause groundwater contamination after the thin layer of soil is saturated with contaminants. In any event, the system is not designed for the elimination of the settled contaminants through percolation. The treatment system for the boat wash areas would be self-contained, loop-recycle systems that would permit the separation of oil and free-settling solids prior to reuse. However, the NOI warns that, "during heavy storm events"-- probably again referring to more than 2.5 inches of runoff--the loop-recycle systems would release untreated water to one of the underground vaults, which would, in turn, release the untreated water into the canals. Due to the location of the boat wash areas, the receiving waters would probably be the north canal. As reflected in the drawings and the testimony of Mr. Wright, the surface water management system would discharge at three points: two in the north canal and one in the south canal. (Vol. I, p. 206; future references to the Transcript shall cite only the volume and page as, for example, Vol. I, p. 206). 67. The NOI concludes that Applicant has provided affirmative reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with the provisions of Part IV of Chapter 373, F.S., and the rules adopted thereunder, including the Conditions for Issuance or Additional Conditions for Issuance of an environmental resource permit, pursuant to Part IV of Chapter 373, F.S., Chapter 62-330, and Sections SFWMD--40E-4.301 and 40E-4.302, F.A.C. The construction and operation of the activity will not result in violations of water quality standards and will not degrade ambient water quality in Outstanding Florida Waters pursuant to Section 62-4.242, F.A.C. The Applicant has also demonstrated that the construction of the activity, including a consideration of the direct, secondary, and cumulative impacts, is clearly in the public interest, pursuant to Section 373.414(1)(a), F.S. However, the design capacity of the proposed surface water management system raises serious questions concerning the water quality of the discharges into the canals. Mr. Wright initially testified that the surface water management system would be over-taxed by "an extreme storm event, probably a 25- year storm event . . .." (Vol. I, pp. 208-09). The record contains no evidence of the frequency of the storm event that produces 2.5 inches of runoff for the relatively impervious post- development uplands; the record contains no evidence even of the frequency of the storm event that produces 2.5 inches of rainfall. According to Mr. Wright, the 25-year storm would typically produce 8-10 inches of rain. (Vol. I, pp. 223 and 233). As already noted, the relatively large area of imperviousness following upland development and the relative imperviousness of the upland soils present at the site suggest that the runoff will be a relatively large percentage of the rainfall produced by any given storm event. It thus appears that the design capacity of the system is for a storm substantially smaller and substantially more frequent than the 25-year storm. Attached to the NOI is a draft of the New Permit, which contains numerous specific conditions and conforms in all respects with the NOI. Omitting any mention of SFWMD's Basis of Review, the New Permit addresses, among other things, the operation, inspection, and maintenance of the components of the proposed system. As set forth in the testimony of Michael Bateman, who is a Professional Engineer III and statewide stormwater coordinator for DEP, the surface water management system's operation depends on periodic pumping of the "thick, fine sediment," which appears to be a "cross between mud and sand" and will be laden with oil, grease, metals, and other contaminants. (Vol. II, p. 66). However, contrary to Mr. Bateman's assurance that the New Permit requires the periodic pumping or removal of contaminants that have precipitated out of the runoff in the dry detention system and dropped to the bottom sediment (Vol. II, p. 20), neither the NOI nor the New Permit requires, in clear and enforceable language, the periodic removal of settled solids from the underground vaults or their manner of disposal. New Permit Specific Condition 8 requires that Applicant maintain the boat wash area in "functioning condition," although specific inspection and maintenance requirements are omitted from the New Permit. New Permit Specific Condition 7 requires that Applicant "inspect and clean" all stormwater inlets "as necessary, at least once a month and after all large storm events," although the New Permit fails to specify that cleaning shall be by either pumping or vacuuming. By contrast to the marginally adequate inspection and maintenance provisions applicable to the boat wash area (inspections are required in Specific Condition 6, cited below) and stormwater inlets, the New Permit completely fails to specify enforceable inspection and maintenance requirements for the underground vaults. New Permit Specific Condition 6 addresses the operation of the vault as follows: Upon completion of the construction of the stormwater collection and underground vault (Infiltrator) systems and on an annual basis thereafter by September 30 of each year, the Permittee shall submit reports to the Department as to the storage/treatment volume adequacy of the permitted system. The reports shall also include, but not be limited to, the condition of stormwater inlets and control structures as to silt and debris removal and the condition of the inlet wire mesh screens to function properly. The boat wash down areas shall be inspected for proper operation, i.e., no signs of wash water overflows from the containment area, condition of the containment area curbing, etc. Such reports shall include proposal of technique and schedule for the maintenance and/or repair of any deficiencies noted and shall be signed and sealed by a Florida registered Professional Engineer. A report of compliance with the aforementioned proposal shall be submitted by the Professional Engineer to the Department upon completion of the proposed work which shall be accomplished within three months of the initial report for each year. New Permit Specific Condition 6 requires annual reports concerning the sufficiency of the capacity of the underground vaults (first sentence), annual reports of the status of silt- and debris-removal from the inlets and control structures and the condition of the inlet wire mesh screens (second sentence), inspection at no stated intervals of the boat wash area (third sentence), and annual reports with suggestions of maintenance schedules and repairs for the items mentioned in the first two sentences (fourth sentence). New Permit Specific Condition 6 promises only the preparation of a maintenance schedule at some point in the future. Failing to supply an enforceable inspection and maintenance program, Specific Condition 6 indicates that Applicant shall consider in the future techniques and scheduling of maintenance, presumably based on the report concerning system capacity. Such a requirement may or may not impose upon Applicant an enforceable obligation to adopt an enforceable inspection and maintenance program in the future, but it does not do so now. There is no reason why the New Permit should not impose upon Applicant an initial, enforceable inspection and maintenance program incorporating, for example, the clear and enforceable requirements that Applicant inspect all of the underground vaults no less frequently that once (or twice, if this is the applicable recommendation of the manufacturer) annually and, at clearly specified intervals, remove the sediments by resuspending the sediments in the water, pumping out the water, and disposing of the effluent and sediments so they do not reenter waters of the state. Although the record does not disclose such requirements, Applicant could possibly find manufacturer's recommendations for the boat wash components and incorporate them into an enforceable inspection and maintenance program more detailed than that contained in Specific Condition 8. However, for the reasons noted below, water quality considerations require a substantial strengthening of such a program beyond what is set forth in this paragraph as otherwise acceptable. At present, the bottom line on inspection and maintenance is simple: the New Permit does not even incorporate by reference the manufacturer's recommended inspection and maintenance schedule, which Mr. Wright provided to Mr. Myers. Nor was this shortcoming of the New Permit in its treatment of inspection and maintenance necessarily missed by Mr. Wright. He testified that he submitted to DEP the manufacturer's maintenance program (Vol. I, p. 205), but when asked, on direct, if the "permit in any way incorporate[s] the commitment in your application to this maintenance?" Mr. Wright candidly replied, "That I don't know." (Vol. I, p. 206). Satisfaction of Basis of Review Section 5 Basis of Review Section 5--specifically Section 5.2.1(a)--imposes the "volumetric" requirement of 2.5 inches times the percentage of imperviousness, as discussed above and in the conclusions of law. Petitioner does not dispute Applicant's compliance with this volumetric requirement, and the record amply demonstrates such compliance. Applicability of Basis of Review Section 4 The main issues in this case are whether the environmental and water quality requirements of Basis of Review Section 4 apply to the direct, secondary, and cumulative impacts of the proposed activity. Because the record lacks any indication of other relevant pending or vested permits, without which, as noted in the conclusions of law, one cannot assess cumulative impacts, the remainder of the findings of fact will not discuss cumulative impacts, although, to some extent, increased boating pressure constitutes a secondary impact and a cumulative impact. Without regard to the differences between direct and secondary impacts, DEP has taken the position in this case that it could lawfully issue the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5 and without consideration of the requirements of Basis of Review Section 4. In large part, DEP's witnesses justify this position by reliance on the historic differences between DAF permits and SWM permits and the fact that the New Permit is a former-SWM ERP. As discussed in detail in the conclusions of law, the Basis of Review imposes different requirements upon former-DAF and former-SWM ERPs, although the Basis of Review does not refer to DAF or SWM permits by their former names. The identifying language used in the Basis of Review for former-DAF ERPs is "regulated activity" "located in, on, or over surface waters or wetlands." References to "regulated activity" without the qualifying clause indicate that the following requirement applies to former-DAF ERPs and former-SWM ERPs. Several witnesses for DEP and Applicant testified that Applicant was entitled to the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5. For example, Mr. Wright testified that the water quality requirements for the New Permit required only a "cookbook calculation" to determine volume. (Vol. I, p. 204). Agreeing with a question that analysis of the water quality portion of the system requires "simply a straightforward mathematical calculation," Mr. Wright testified that the quality of discharged water, following treatment, will comply with state water quality standards in storms producing no more than 2.5 inches of runoff. (Vol. I, pp. 210-11). When asked to explain his answer, Mr. Wright testified, "It's kind of an implied situation, in that if you follow the guidelines that you are required to follow with respect to the calculations of water quality, that the end product is going to be in compliance with state standards." (Vol. I, p. 211). DEP witnesses agreed with Mr. Wright's analysis. For instance, Mr. Bateman testified, "The stormwater portion of the Basis of Review gets at that question [meeting water quality standards] by stating, 'if you follow the design criteria in the basis, you are presumed to meet water quality standards.'" (Vol. II, p. 40). Mr. John Iglehart, the program administrator for DEP's South District Office in Fort Myers, testified on the same point: "if . . . you meet the criteria, the engineering criteria, than you have met the presumption that you meet the rule." (Vol. III, p. 52). Mr. Myers also agreed, testifying, "with the stormwater management system, it's for the most part, let's say, fairly cut and dried as far as meeting criteria that is established within these rules and Basis of Review." (Vol. III, p. 144). He added: "Since the criteria for reviewing stormwater management systems and the discharge is based upon a presumed compliance with stormwater criteria and with state water quality, it is presumed it [the proposed system] does meet it." (Vol. III, p. 148). Mr. Bateman explained the historic basis for the water quality presumption given surface water management systems that meet the volumetric requirements: the ERP is a combination of the surface water management rules and the environmental . . ., the dredge-and-fill, and they didn't merge, they didn't marry very well in certain areas. In stormwater we look at--it's a technology- based criteria. We say, "If you build it this way, treat 80 percent of the average annual pollutant load, we're going to give you the permit on the presumption that you're doing the best you can. You're going to meet standards. Once you get into the wetlands, we take--we put on whole new sets of glasses. ALJ: Are you saying that the old dredge-and- fill is more performance-based, and the old MSSW is more technology-based, in that if you've put in the required technology, you've done your job? WITNESS: That is--yes. Dredge-and-fill is a more case by case. We look at the water quality. We look at ambient conditions. We look at hydrographics [here, largely tidal flushing]. It's more like a waste load allocation in that we're very specific. In stormwater, we can't afford to be. MS. HOLMES: So what you're saying is you can't point to the specific rule provision or regulation that excludes these criteria from surface water management systems? WITNESS: Well, you have to read [Basis of Review] Section 4 as a whole. 4.1 is specific to wetlands and other surface waters. 4.2 is environmental review. I mean, if you look at the thing in total, and the--and I realize it's confusing. But these rules are exactly the same in all the water management districts. They were developed together as the wetland criteria, the new dredge-and-fill criteria. They're exactly the same. The stormwater rules of all the [water management districts] is all different. That is for another day, making those all consistent. So these environmental wetland- type dredge-and-fill criteria are all the same, and they refer to in-water impact. [All references in the transcript to "end water" should have been "in-water."] ALJ: What do you mean by that term, "in- water impact?" WITNESS: In other words, dredge-and-fill impact. Construct and--I can't-- MS. HOLMES: May I continue, then? ALJ: Let him answer. What were you going to say? WITNESS: I think it takes a little knowledge of how these [rules] developed to know how they're applied, unfortunately. In other water management districts, it's clearer that these are in-water impacts. (Vol. II, pp. 57-59). In testifying to the exclusivity of the volumetric requirements in Basis of Review Section 5, with respect to former-SWM ERPs, these witnesses likewise opined that the secondary-impact analysis required in Basis of Review Section 4 also was inapplicable to the New Permit. For example, after testifying both ways on the necessity of considering secondary impacts in issuing former-SWM ERPs, Mr. Bateman concluded, "I'm not sure that [the requirement of considering secondary impacts] applies in this case. Certainty the rules apply, I mean, the rules apply. But certain rules are not applicable in this particular instance. I mean, I'm trying to think of a secondary impact associated with stormwater system, and it's difficult for me to do so." (Vol. II, p. 45). Mr. Bateman then testified that DEP did not consider such secondary impacts, as additional boat traffic, and probably did not consider cumulative impacts, such as other marinas. (Vol. II, pp. 51-52). In response to a question asking to what extent DEP considered post-development inputs of contaminants, such as heavy metals, when issuing a former-SWM ERP, Mr. Bateman testified: I have to tell you, very little. I mean, we--stormwater is pretty black and white. The link to secondary and cumulative impact is generally associated with in-water impact. And I realize the line is a little grey here. When we build a Wal-Mart, we don't think about how many cars it's going to put on [U.S. Route] 41 and what the impact might be to an adjacent lake. We just don't. It would be a little burdensome. In this case, I mean, it's a little greyer. (Vol. II, p. 47). Mr. Bateman was then asked to compare the relative impacts from a vacant, but developed, upland without a surface water management system with a proposed activity that would add a surface water management system to facilitate an intensification of land uses on the site so as to add new contaminants to the runoff. Mr. Bateman testified that DEP would apply only the volumetric requirement and not address the complex issue of weighing the potential environmental benefit of a new surface water system against the potential environmental detriment of contaminant loading (at least in storm events greater than the design storm event). Mr. Bateman explained: "The way it works, it is not a water quality-based standard. In other words, we don't go in and say it's so many pounds [of contaminants] per acre per year now. We're going to make it this many pounds per acre per year, and look at it in a detailed fashion. We do the [Best Management Practices], retain an inch and you're there." (Vol. II, p. 49). Agreeing with Mr. Bateman that DEP was not required to consider secondary impacts resulting from the regulated activity, Mr. Iglehart testified: "It's our thought that we don't really look at secondary and cumulative impacts for the stormwater permit. . . . If it [the former-SWM ERP application] meets the criteria, it gets the permit. That--in the ERP, the previous dredge-and-fill side looks at the secondary and cumulative. The stormwater just--like Mr. Bateman testified." (Vol. III, p. 52). After some ambivalence, Mr. Myers also testified that DEP was not required to consider secondary impacts for the New Permit: WITNESS: . . . I did not or I do not consider secondary impacts for the stormwater management system. MS. HOLMES: So, what about cumulative impacts? WITNESS: No. MS. HOLMES: So it's your testimony that you did not review secondary and cumulative impacts-- WITNESS: That's correct. MS. HOLMES: --of this system? WITNESS: What I can say is that the existing system out there, from what I can tell, does not have any stormwater treatment. Basically, it's running off into the canals. The proposed project will provide stormwater treatment for, not only the new construction, which is proposed mainly on the northern peninsula, but it is also provided for that area which is now existing, it will provide stormwater treatment for that area also. And I consider that--I don't consider that to be a secondary impact. I see it as an offsetting improvement to potential as far as the water quality. (Vol. III, pp. 144-45). As discussed in detail in the conclusions of law, these witnesses have misread the provisions of the Basis of Review applicable to the New Permit. As noted in the conclusions of law, the requirements in the Basis of Review of analysis of secondary and cumulative impacts upon water quality and manatees are not limited to in-water or former-DAF activities. Satisfaction of Basis of Review Section 4 Direct vs. Secondary Impacts In terms of construction, the direct impacts of the proposed surface water management system are negligible. Nothing in the record suggests that the construction of the proposed system will violate any of the requirements of Basis of Review Section 4. In terms of maintenance, the direct impacts of the proposed surface water management system are negligible, except for the omission from the New Permit of any provision for the safe disposition of the contaminant removed from the underground vaults. However, the maintenance issues are better treated with the operation issues. In terms of operation, the direct impacts of the proposed surface water management system are substantial. As discussed in the conclusions of law, the analysis of the direct impacts of the operation of the proposed system is limited to the current level of uplands and marine activity at the marina. These direct impacts involve two aspects of the operation of the proposed system: the design capacity and the inspection and maintenance (including disposal of sediment) of the system components. As discussed in the conclusions of law, the secondary impacts involve the intended and reasonably expected uses of the proposed system. These impacts consist of the increased uplands and marine uses associated with the addition of 100 new wet slips, 227 new dry slips, and 115,000 square feet of building space with a restaurant. Apart from their contention that Applicant is required only to satisfy the volumetric requirements of Basis of Review Section 5, Applicant and DEP have contended that Petitioner is estopped from raising direct and secondary impacts because DEP considered these impacts when issuing the Original Permit four years ago. Perhaps the most obvious factual problem with this contention is that it ignores that the New Permit authorizes, for the first time, the construction of the 227 new dry slips and 115,000 square feet of buildings. As counsel for DEP pointed out during the hearing, the Original Permit was a DAF permit and did not extend to these upland uses. The contention that DEP considered these developments as secondary impacts because they were shown on drawings attached to the Original Permit gives too much significance to nonjurisdictional background items shown in drawings without corresponding textual analysis. More generally, the efforts of DEP and Applicant to restrict the scope of this case rely on a misreading of Original Permit Specific Condition 5. The purpose of Original Permit Specific Condition 5 is to "ensure a net improvement to water quality." The purpose of each of the requirements under Specific Condition 5 is to achieve an actual, not presumptive, improvement in water quality. Prohibiting the issuing agency from fully analyzing the direct and secondary impacts of the proposed surface water management system reduces the likelihood that the ensuing New Permit will perform its role, as envisioned in the Original Permit, of helping to achieve an actual, net improvement in water quality. The concept of a "net" improvement is exactly what DEP's witnesses disclaim having done in this case--balancing the potential environmental benefits to the water resources from the proposed surface water management system against the potential environmental detriments to the water resources from the development and land uses that are intended or reasonably expected to result from the construction of the proposed system. The failure to analyze the net gain or loss inherent in this important provision of Specific Condition 5.B undermines the likelihood that the effect of Specific Condition 5.B--a net improvement in water quality--will be achieved. It is therefore illogical to rely on Specific Condition 5.B, as DEP does, as authority for an artificially constrained analysis of the eligibility of the proposed system for a former-SWM ERP. The estoppel argument also ignores that Original Permit Specific Condition 5.B anticipated that the issuing agency would be SFWMD. It is unclear how the parties to the Original Permit, including DEP, would bind what appeared at the time to have to be SFWMD in the exercise of its lawful authority in issuing SWMs or former-SWM ERPs. The attempt of Applicant and DEP trying to limit the scope of this case also overlooks numerous changed circumstances since the issuance of the Original Permit. Changed circumstances militating in favor of the comprehensive analysis mandated for former-SWM ERPs include: increased trends in manatee mortality; increased boating pressure; persistent water quality violations in terms of dissolved oxygen, copper, and total coliform bacteria; a dramatic deterioration in dissolved oxygen levels; the initial presentation for environmental permitting of the previously unpermitted 227 additional dry slips and the 115,000 square feet of buildings; the current canal bottom profiles resulting from excessively deep maintenance dredging; the absence of an updated flushing study; and the failure to dredge the flushing canal required by the Original Permit. Disregarding the environmental and water quality requirements of Basis of Review Section 4 in this case would thus repudiate Specific Condition 5.B, especially when, among other things, the water quality of the canals has deteriorated dramatically with respect to dissolved oxygen, the canals continue to suffer from serious copper violations, the canals were recently maintenance dredged to excessive depths, no flushing study has examined these subsequent developments, and the intended uses to be facilitated by the New Permit more than double the capacity of the existing marina. 2. Water Quality The direct impacts of the proposed surface water management system, based on current levels of uplands and marine use at the marina, would adversely affect the quality of the receiving waters, in violation of Basis of Review Section 4.1.1(c). The excessively increased depths of the canals, especially with respect to the substantially widened depths of the north canal, raise the potential of water quality violations, especially given the history of this site. Potential sources of contaminants exist today in the canal bottoms, uplands, and marine activity associated with the marina. The potential for water quality violations, especially with respect to dissolved oxygen, increases in the absence of an updated flushing study. The potential also increases with the introduction of liveaboards and failure to dredge the flushing canal (or its replacement with culverts). In the face of these current threats to water quality, the New Permit fails to require a system with adequate capacity to accommodate fairly frequent storm events and fails to impose clear and enforceable inspection, maintenance, and disposal requirements for the underground vaults. Although better, the inspection and maintenance requirements for the stormwater inlets and boat wash area unnecessarily present enforcement problems. The effect of these failures in design capacity and inspection and maintenance is synergistic. Deficiencies in vault capacity mean that storms will more frequently resuspend the settled contaminants in the vaults and flush them out into the canal waters. Excessively long maintenance intervals and poor maintenance procedures will increase the volume of contaminants available to be flushed out into the canal waters. Improper disposition of removed contaminants endangers other water resources. The introduction of untreated or inadequately treated water into the canals means the introduction of two substances that will contribute to the current water quality violations. Organics, such as from the boat wash operations and other uplands uses, will raise biochemical oxygen demand, which will accelerate the deterioration in dissolved oxygen levels. Copper removed during boat wash operations, leaching from painted hulls, or remaining in the uplands from past marina operations will also enter the canals in this fashion. On these facts, Applicant has failed to provide reasonable assurance that the operation of the proposed surface water management system will not result, in the long-term, in water quality violations. Applicant has failed to demonstrate that the operation of the proposed system, even as limited to existing levels of use of the uplands and marine waters, will not contribute to existing violations of dissolved oxygen and copper levels. Obviously, the situation is exacerbated by consideration of the uses intended and reasonably expected to follow the construction of the proposed system. With the growing popularity of boating in Lee County over the past 20 years, it is reasonably likely that an expanded marina operation, located close to downtown Fort Myers, will successfully market itself. Thus, many more boats will use the marina because it will offer more wet and dry slips and new buildings, including a restaurant, and the pressure on water quality will intensify with the intensification of these uses. The added intensity of upland and marine uses will contribute to the above-described violations of water quality standards for dissolved oxygen and copper, probably will contribute to the above-described violations of water quality standards for total coliform bacteria and lead, and may contribute to the recurrence of water quality violations for other parameters for which the canals were previously in violation. On these facts, Applicant has failed to provide reasonable assurance that the direct and secondary impacts of the proposed system will not adversely affect the water quality of the canals. 3. Manatees and Manatee Habitat By letter dated June 26, 1998, from a DEP Environmental Specialist to a DEP permitting employee, the Environmental Specialist provided an initial opinion concerning the revisions that Applicant sought to the Original Permit so as to allow liveaboards, replace the flushing canal with culverts, and relocate the travel lift to the north canal. The letter accompanies a Manatee Impact Review Report, also dated June 26, 1998. The Manatee Impact Review Report notes the pending application for the New Permit. The report considers at length the extent of manatee use of Deep Lagoon and the nearby portions of the Caloosahatchee River. The Manatee Impact Review Report states: This project [i.e., the relocation of the boat lift to the north canal, addition of liveaboards, and conversion of the flushing canal to flushing culverts] is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project, as well as in the boater's sphere of influence of the project. Secondary adverse impacts include lethal and sublethal watercraft-related injuries, disturbance contributing to stress, and alteration of natural behaviors. The secondary impacts expected with this project are compounded by the cumulative secondary effects from other facilities in this system. Just south of this project site, another marina was recently constructed (Sun City Corporation aka Gulf Harbor Marina aka River's Edge), which has approximately 190 wet slips. Since October 1995, there have been seven watercraft-related deaths within five miles of this project location. The Gulf Harbor Marina was constructed in late 1995, and was almost fully occupied during 1996. Watercraft-related manatee deaths increased significantly during this time, with one in December 1995, two in 1996 and four in 1997. Additional on-water enforcement by the City of Cape Coral was considered part of the offsetting measures to address the expected impacts to manatees from increases in boat density. This offsetting measure, however, appears to be ineffectual at this time. The Manatee Impact Review Report concludes that the north canal and its mouth are "particularly important" for manatee because of the availability of freshwater from the adjoining Iona Drainage District ditch immediately north of the north canal and "historical use indicates that this area appears to be the most frequently used area in the Deep Lagoon system." The report cautions that the relocated travel lift may significantly increase the number of boats in the little-used north canal, whose narrowness, coupled with moored, large boats on the one side, "would produce significant, adverse impacts to the endangered manatee." The Manatee Impact Review Report finds that Applicant failed to provide reasonable assurance regarding the conservation of fish and wildlife, unless several new conditions were added. These conditions include prohibitions against boat launching along the shoreline of the north canal and the addition of manatee-exclusion grating to any culverts that may be approved. As defined in this recommended order, the direct impacts upon manatees from the proposed surface water management system would be moderate. As defined in this recommended order, direct impacts would not involve any increase in boating pressure. The greater impacts would be in the deterioration of two measures of water quality that are crucial to manatees: dissolved oxygen and copper. However, the secondary impacts are dramatic, not de minimis, and arise from the intended and reasonably expected uses to follow from the construction of the proposed surface water management system. The increased boat traffic intended and reasonably expected from more than doubling the marina capacity, through the addition of 100 wet slips and 227 dry slips, and the addition of 115,000 square feet of buildings, including a restaurant, would adversely impact the value of functions provided to manatees by the affected surface waters. Manatee mortality has increased as boat traffic has increased. Substantial numbers of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful. On these facts, Applicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species. 4. Minimization and Mitigation Due to their contention that Basis of Review Section 4 does not apply to this case, DEP and Applicant did not demonstrate compliance with the minimization and mitigation sections of Basis of Review Section 4. However, the record supports the possibility of design alternatives for water quality impacts, if not manatee impacts, that DEP and Applicant must consider before reanalyzing the direct, secondary, and cumulative impacts of the proposed system on the water resources and, if appropriate, potential mitigation options. Mr. Bateman testified that SFWMD is the only district that permits surface water management systems relying on the settling out of sediments in the bottom of a storage-type detention system. (Vol. II, p. 18). He explained that other districts rely on systems that, taking advantage of the three to four feet typically minimally available between ground surface and the top of the water table, retain the runoff and allow it to percolate into the ground. (Vol. II, p. 19). One relatively straightforward design alternative, which would address water quality issues, would be to perform a flushing study; analyze applicable drainage level of service standards imposed by state, regional, and local authorities; and increase the capacity of the surface water management system to accommodate the runoff from storms of sufficient size and frequency that would be accommodated by the proposed system. Another feature of this design alternative would be to impose for each component of the system a detailed, enforceable program of inspection, maintenance, and contaminant-disposal. This program would incorporate the manufacturer's recommendations for the manner and minimum frequency of inspection and maintenance, but would require more frequent removal of contaminated sediments during periods when larger storms are more numerous (e.g., a specified wet season) or more intense (e.g., a specified hurricane season), as well as any periods of the year when the marine and upland uses are greatest (e.g., during the winter season, if this is the period of greatest use). As testified by Mr. Bateman, the proximity of the water table to the surface, as well as South Florida land costs, discourage reliance upon a conventional percolation-treatment system, even though the site's uplands are 5 feet NGVD and the water table is 1.2 feet NGVD. The bottom of the proposed system is 2.5 feet NGVD, which leaves little soil for absorption. If the nature of the contaminants, such as copper, does not preclude reliance upon a percolation-treatment system, DEP and Applicant could explore design alternatives that incorporate more, shallower vaults, which would increase the soil layer between the bottom of the vaults and the top of the water table. If the technology or contaminants preclude reliance upon such an alternative, the parties could consider the relatively costly alternative, described by Mr. Bateman, of pool-like filters with an "actual filtration device." (Vol. II, pp. 19-20). The preceding design alternatives would address water quality concerns, including as they apply to manatees, but would not address the impact of increased boating upon manatees. The record is not well developed in this regard, but DEP and Intervenor have considerable experience in this area, and it is premature to find no suitable means of eliminating or at least adequately reducing the secondary impacts of the proposed system in this crucial regard as well. In any event, Applicant has failed to consider any design alternatives to eliminate or adequately reduce the direct and secondary impacts of the proposed surface water management system. Having failed to consider minimization, DEP and Applicant have failed to identify the residual direct and secondary impacts that might be offset by mitigation. Applicant has thus failed to mitigate the direct and secondary impacts of the proposed surface water management system.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order revoking its determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the application for an environmental resource permit in DOAH Case No. 98-5409. DONE AND ENTERED this 24th day of November, 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 24th day of November, 1999. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 T. Elaine Holmes, Attorney 14502 North Dale Mabry, Suite 200 Tampa, Florida 33618 David Gluckman Gluckman and Gluckman 541 Old Magnolia Road Crawfordville, Florida 32327 Matthew D. Uhle Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, Florida 33901 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether Respondent KW Resort Utilities Corp. ("KWRU") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021 (collectively, the "Permit at Issue"), authorizing the major modification of KWRU's existing permit to operate a domestic wastewater facility located at 6630 Front Street, Stock Island, Florida 33040. The Permit at Issue would authorize the expansion of KWRU's existing domestic wastewater facility and the installation of two additional underground injection wells.
Findings Of Fact The Parties Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Last Stand has challenged the Permit at Issue in this proceeding. Petitioner George Halloran is a natural person residing in Key West, Florida, and is a member of Last Stand. Halloran has challenged the Permit at Issue in this proceeding. Respondent KWRU is a Florida corporation. KWRU is the wastewater utility service provider that owns and operates the Existing Wastewater Facility2/ and is responsible for its design, construction, operation, and maintenance. It is the applicant for the Permit at Issue in this proceeding. Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, implementing, as applicable, rules codified at Florida Administrative Code Chapters 62-4, 62-302, 62-303, 62-520, 62-528, 62-600, and 62-620, and various industry standards and manuals incorporated by reference into DEP rules. DEP's proposed agency action to grant the Permit at Issue is the subject of this proceeding. Background and Overview Domestic Wastewater Regulation in the Florida Keys The State of Florida has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated, pursuant to statute and by DEP rule, as an Outstanding Florida Water ("OFW"). § 403.061(27), Fla. Stat.; Fla. Admin. Code R. 62-302.700(9). The Florida Legislature also designated the Florida Keys an Area of Critical State Concern. § 380.0552, Fla. Stat. A stated purpose of this designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater facilities that meet the requirements of section 403.086(10). Additionally, the Florida Legislature has enacted section 403.086(10), which addresses the discharge of domestic wastewater in the Florida Keys. That statute finds that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. Section 403.086(10) directs that after December 31, 2015, all new or expanded domestic wastewater discharges must comply with the treatment and disposal requirements of the statute and DEP rules. Specifically, domestic wastewater treatment facilities having design capacities greater than or equal to 100,000 gallons per day must provide basic disinfection of the wastewater pursuant to DEP rule and must treat the wastewater to a level of treatment, which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations of the specified constituents: Biochemical Oxygen Demand ("CBOD5") of 5 milligrams per liter ("mg/L"); Suspended Solids of 5 mg/L; Total Nitrogen, expressed as N of 3 mg/L; and Total Phosphorus, expressed as P of 1 mg/L. Collectively, these effluent standards constitute the "advanced wastewater treatment" ("AWT") standards. Section 403.086(10)(e) also imposes requirements regarding disposal of treated domestic wastewater effluent through underground injection. Section 403.086(10)(e)1. requires Class V injection wells serving domestic wastewater treatment facilities having design capacities of less than one million gallons per day (hereafter "MGD") to be at least 90 feet deep and cased to a minimum depth of 60 feet, or to such greater cased depth and total well depth as may be required by DEP rule. Section 403.086(10)(e)2. requires Class V injection wells serving wastewater treatment facilities with design capacities greater than or equal to 1 MGD, excluding backup wells, to be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by DEP rule. The Existing Wastewater Facility KWRU currently is permitted, pursuant to Permit FLA014591 (the "Existing Permit"), to operate a domestic wastewater facility (the "Existing Wastewater Facility" or "Facility")3/ located at 6630 Front Street, Stock Island, Florida. Stock Island is located immediately east and slightly north of Key West. By way of background, KWRU's domestic wastewater system currently consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and the Existing Wastewater Facility, which treats the wastewater and then sends it either as reclaimed water for reuse as irrigation water at the Key West Golf Club, or for toilet flushing or air conditioning makeup water at other facilities specified in the Existing Permit,4/ or disposes of it as treated effluent through two underground injection wells. No modifications to the collection or transmission systems have been proposed or challenged. Thus, only the proposed modifications to the Existing Wastewater Facility are at issue in this proceeding. The Existing Wastewater Facility serves residential and commercial properties located on Stock Island, Florida, immediately adjacent to Key West in the lower Florida Keys. Specifically, the Facility treats domestic wastewater originating from approximately 1,416 existing residential connections and 216 commercial connections. The commercial connections consist of a convalescent center, a college, restaurants, recreational vehicle parks, an animal clinic, and a hospital. There are no industrial wastewater contributors to the Facility. The Facility includes a Category III, Class C wastewater treatment facility operating under the Existing Permit. It is staffed by a Class C or higher operator for six hours a day, seven days per week, in accordance with the Existing Permit and applicable DEP rules. The Facility has a design capacity and a permitted capacity5/ of .499 MGD annual average daily flow ("AADF") and consists of two treatment trains having capacities of .249 MGD and .250 MGD AADF. These treatment trains are piped together to allow operation of the Facility as a single plant. The Facility was upgraded in the mid-2000s and is capable of treating influent wastewater to AWT. However, as authorized under the Existing Permit, the Facility currently treats domestic wastewater to secondary standards, which do not impose nitrogen or phosphorous limits. Under the Existing Permit and in accordance with section 403.086(10), the Facility is not required to meet AWT standards until January 1, 2016. Vacuum and gravity collection systems collect the domestic wastewater from the properties that KWRU services. Wastewater influent from the collection systems flows through the transmission system to a splitter box at the KWRU property, where it is sent to the Facility for treatment. The Facility contains two treatment trains, each consisting of a bar screen, an equalization tank, an aeration tank, an anoxic zone, a post-aeration basin, a clarifier, a silica sand/river rock filter, and a chlorine contact chamber. The bar screens, which constitute the first step in the treatment trains, remove floatables from the wastewater stream. After passing through the bar screens, the wastewater drops into two equalization tanks. As their name indicates, the equalization tanks smooth out the peaks in wastewater flow to the Existing Wastewater Facility. Specifically, wastewater flows to the Facility in large volumes during two periods each day, morning and evening, corresponding with peak water use by the serviced properties. During these large flow volume periods, the equalization tanks fill up with sewage influent, which is meted out during lower-flow periods for treatment by the Facility. In this manner, the Facility treats roughly the same amount of wastewater per hour, which is key to the steady state operation of, and the reliable treatment of the wastewater by, the Facility. From the equalization tanks, the wastewater is directed to the three-stage bioreactor portion of the treatment process. Microorganisms are utilized at each stage to break down the waste. The first stage of the bioreactor process occurs in the aeration basins. Here, wastewater enters the fine-air zone, where it and the microbes used in this stage of the treatment process come into contact with tiny oxygen bubbles. The microorganisms use the oxygen to oxidize the waste and complete the ammonification of the wastewater. The wastewater then passes through bulkheads to the anoxic zones, where the oxygen level is extremely low. In the anoxic zones, bacteria denitrify, or remove nitrogen from, the wastewater. The wastewater is then sent to the post-aeration basins, where excess carbon is removed through oxidation. Thereafter, the wastewater is sent to the clarifiers, where the microorganisms settle out of the wastewater to form a solid precipitate on the bottom of the tank. The precipitate is plowed into a sump and returned by pump to the bioreactors, where the microorganisms are reused in the activated treatment process. When the microorganisms cease to optimally function in treating the waste, they are culled from the treatment process and sent to a digester, where they oxidize, through the endogenous decay process, to the point that they die and only their endoskeletons remain. Sludge, consisting of the endoskeletons and water, is pumped to a sand filter drying bed. The filtrate water is pumped back through the Wastewater Facility to be reused in the wastewater treatment process, while the dried endoskeletons, which are termed "biosolids," are transported offsite for disposal in a Class I landfill. The treated, clarified wastewater is pumped through sand/rock filters, then to the chlorine contact chambers where it is exposed to a minimum of 15 minutes of chlorine disinfection. As noted above, the Existing Permit authorizes the reuse of reclaimed water for, among other uses, irrigation by land application at the 100.27-acre Key West Golf Club golf course. The golf course irrigation system consists, in part, of two unlined interconnected ponds that do not directly discharge to surface waters6/ and that have a storage capacity exceeding one million gallons. KWRU sends reclaimed water to the golf course through its reclaimed water reuse system only in the quantity required to meet the course's irrigation needs. The Existing Permit imposes a minimum residual chlorine level of 1 mg/L and a maximum of 5 mg/L turbidity for the treated wastewater to be considered reclaimed water that can be reused as irrigation at the golf course or as otherwise authorized in the Existing Permit. If the treated wastewater does not meet these standards, switchover/interlock equipment at the Facility disables the power to the pumps that send the reclaimed water offsite for reuse.7/ At that point, the treated wastewater is considered treated effluent.8/ The effluent fills the effluent wet well and is piped directly to the existing underground injection wells for disposal. Pursuant to the Existing Permit, the effluent is disposed of by gravity flow through two Class V, Group 3, ten- inch underground injection wells bored to a depth of 110 feet and cased to a minimum depth of 60 feet. Collectively, the two injection wells have a maximum permitted capacity of .499 MGD AADF. As authorized by the Existing Permit, the underground injection wells discharge the effluent to Class G-III ground water within the Key Largo Limestone.9/ The underground injection wells are not the primary means of disposal for the treated wastewater, in the sense that they are used to remove effluent from the Facility only if and when reclaimed water is not needed by the golf course or the other receiving facilities, or when the treated wastewater does not meet the required residual chlorine and turbidity limits discussed above. The Existing Permit and the activities authorized thereunder are not at issue in this proceeding. Activities Authorized by the Permit at Issue The Permit at Issue proposes to authorize the construction of a new .350 MGD treatment train, which will increase the design capacity and permitted capacity of the plant from .499 MGD to .849 MGD AADF. The proposed modification of the Existing Wastewater Facility entails the addition of a 90-foot diameter tank containing an influent screen, a 105,554-gallon influent equalization tank, a 163,000-gallon aeration chamber, a 154,725-gallon post-anoxic chamber, a 35,525-gallon re-aeration zone, a 112,062-gallon clarifier, and a 317,950-gallon digester. The sand filters and chlorine contact chambers currently in use will be expanded to accommodate flows from the new treatment train, and the chlorine contact chambers will be changed to liquid bleach feed. The Permit at Issue also proposes to authorize the construction and operation of a new .499 MGD AADF underground injection well system consisting of two new Class V, Group 3 ten- inch wells, drilled to a depth of at least 110 feet and cased to a depth of at least 60 feet, which would discharge effluent to Class G-III ground water within Key Largo Limestone. When placed into service along with the two existing injection wells, the total design capacity and permitted capacity of all four underground injection wells would be .998 MGD AADF.10/ The existing reclaimed water reuse system for the Key West Golf Club or the other receiving facilities currently is authorized for a permitted flow capacity of .499 MGD AADF and a design capacity of 1 MGD AADF. The Permit at Issue would authorize the construction of a new reclaimed water reuse system having a permitted capacity of .849 MGD AADF; however, the design capacity of the system remains 1 MGD AADF, and the amount of reclaimed water sent to the golf course for reuse as irrigation is not being changed by the Permit at Issue from that currently authorized by the Existing Permit. Hereafter, the proposed modifications to the Existing Wastewater Facility that are the subject of the Permit at Issue are referred to as the "Project." The expanded facility resulting from completion of the Project is referred to as the "Expanded Wastewater Facility." The Existing Wastewater Facility treatment trains will be modified to meet the AWT standards as of January 1, 2016. Specifically, an alkalinity control system, a carbon injection system, and an alum injection will be added and certain aspects of the wastewater treatment process will be modified as necessary to meet the AWT standard. The new treatment train proposed as part of the Project will be designed to meet the AWT standards upon operation, which will not occur sooner than 2016. Accordingly, as required by section 403.086(10(d)1., all effluent from the Expanded Wastewater Treatment Facility will meet the AWT standards as of January 1, 2016. As a result of conversion of the wastewater treatment process to AWT, and even assuming all treated effluent is injected down the wells, total nitrogen loading will be decreased from 58 pounds per day to 15.9 pounds per day and total phosphorous loading will be decreased from 14.4 pounds per day to 5.3 pounds per day. This is the case even though the volume of effluent disposed of through the wells may as much as double. Only the activities comprising the Project, which are the proposed to be authorized by the Permit at Issue, are the subject of this proceeding. The Permitting Process The overarching purpose of the wastewater facility permitting process, including permitting of modifications to an existing wastewater facility, is to ensure that the wastewater facility does not discharge wastes to any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such waters. This is accomplished by requiring the facility to be designed, constructed, and operated in accordance with applicable DEP rule standards, which incorporate industry standards. Fla. Admin. Code R. 62- 600.100(1). Similarly, the overarching purpose of the Underground Injection Well System permitting process is to protect the quality of underground sources of drinking water and prevent degradation of the quality of other aquifers adjacent to the injection zone that may be used for other purposes. This is accomplished by requiring underground injection wells to be designed, constructed, and operated in accordance with applicable DEP rule requirements and standards. Fla. Admin. Code R. 62- 528.100(1). The Wastewater Facility or Activity Permit Application Form 1, General Information, and Application Form 2A, Permit for Domestic Wastewater Treatment and Reuse or Disposal Facility, which are adopted by rule, are the forms that must be completed and submitted to DEP to receive authorization to modify existing wastewater facilities or construct new wastewater facilities. This form includes a list of requirements, some (but not necessarily all) of which apply to proposed modification of an existing wastewater facility. The form requires that a Florida- licensed P.E. certify that the engineering features of the project have been designed by the engineer in conformance with the sound engineering principles applicable to such projects, and that, in his or her professional judgment, the facility, when properly constructed, operated, and maintained, will comply with all applicable statutes and the rules. The Application to Construct/Operate/Abandon Class I, III, or V Injection Well System, which is adopted by rule, is the application form that must be completed and submitted to DEP to receive authorization to construct and operate a Class V Injection Well System. This application form includes a list of requirements, some (but not necessarily all) of which apply to a specific underground injection well construction project. The form requires that a Florida-licensed P.E. certify that the engineering features of the injection well have been designed and examined by the engineer and found to conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application. By signing and sealing the application, the P.E. certifies that, in his or her professional judgment, there is reasonable assurance that the injection well, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules. Once the application forms are submitted, DEP permitting staff reviews the applications and determines whether items on the forms and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a Request for Additional Information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to review the application for issuance or denial of the permit, DEP determines the applications complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as it may direct, if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, the applicant is legally entitled to issuance of the permit. Engineering Design of the Project KWRU retained Weiler Engineering Corporation to design the proposed modifications to the Existing Wastewater Facility and the new underground injection well (again, collectively referred to as the "Project") and to prepare and submit the applications for the Permit at Issue to DEP. Edward Castle and Christopher Johnson prepared the applications for the Permit at Issue. As the applicant, Johnson signed the application documents as required pursuant to the application form. As the engineer of record, Castle signed and sealed the certifications in the application forms, representing that he was the engineer in responsible charge of preparing the Project's engineering documents. Castle's signature and seal on the application forms for the wastewater treatment facility expansion portion of the Project constitute his representation that he designed and examined the engineering features of the wastewater treatment facility expansion; that these features conform to sound engineering principles applicable to the Project; and that, in his professional judgment, the wastewater treatment facility expansion portion of the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. Similarly, Castle's signature and seal on the application to construct the new underground injection wells constitute his representation that he designed the engineering features of these injection wells; that the injection wells conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that in his professional judgment, there is reasonable assurance that the wells, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules, including the requirement that the effluent discharged through the injection wells meet AWT standards as of January 1, 2016. As previously noted, the design capacity of wastewater treatment portion of the Expanded Wastewater Facility is proposed to be .849 MGD AADF. Castle selected this design capacity based on historic wastewater flows at the Existing Wastewater Facility and foreseeable projected wastewater treatment capacity demand in the future.11/ Specifically, to estimate future capacity demand, Castle considered development agreements, requests for utility service, the existence of scarified property and applicable development density, wetslips, recent property sales, and estimated and proposed in-fill development on Stock Island. He projected residential development wastewater treatment demand based on historic actual flow data from the Monroe County Sanitary Wastewater Master Plan ("Master Plan"), in conformance with the Recommended Standards for Wastewater Facilities, the so- called "Ten States Standards," a wastewater systems design and planning guidance document incorporated by reference in rule 62- 600.300(4). Additionally, Castle applied the estimated sewage flows codified in Florida Department of Health rule 64E-6.008, Table I, System Design Estimated Sewage Flows ("DOH Table I"), to estimate wastewater treatment demand for projected commercial and hotel development uses. Once Castle had projected wastewater capacity demand for residential and hotel/commercial uses at buildout on Stock Island, he factored in an additional 15 percent capacity safety factor to derive the .849 MGD AADF design capacity for the Expanded Wastewater Facility. Castle chose AADF, rather than the maximum monthly average daily flow or three-month average daily flow, as the timeframe for the design capacity based on historical flow amounts to the Existing Wastewater Facility and because of insignificant seasonal variations in historical flows to the Facility.12/ This is because the population on Stock Island contributing flow to the Existing Wastewater Facility is largely comprised of non-seasonal residents and commercial operations.13/ Nonetheless, to ensure the Expanded Wastewater Facility will have adequate capacity to effectively treat wastewater to the required standards during higher flow periods that may result from non- residential seasonal occupancy in the future, Castle assumed year-round, 100 percent occupancy for the projected hotel and commercial development on Stock Island in determining the design capacity for the Expanded Wastewater Facility. Castle estimated a peak hourly flow of 1.273 MGD for the Expanded Wastewater Facility. This figure estimates the maximum flow through the facility on an hourly basis specifically to take into account the diurnal variability of wastewater flow entering the facility. By definition, the peak hourly flow is a maximum hourly flow rather than the sustained flow or volume into or through the facility. The projected maximum hourly flow of 1.273 MGD, which was determined by multiplying the annual average daily flow by a peaking factor of 1.5, is an estimate of the maximum hourly flow wastewater coming into the Expanded Wastewater Facility's equalization tanks. Importantly, it is not the volume of wastewater flow, on an annual average daily basis, that will leave the facility's equalization tanks and flow through the facility's treatment process. Put another way, the 1.273 MGD peak hourly flow is not the Expanded Wastewater Facility's design capacity. As previously noted, the permitted capacity of the wastewater treatment portion of the Expanded Facility also would be .849 MGD AADF. The permitted capacity is the amount, on an annual average daily flow basis, that the wastewater treatment portion of the Expanded Wastewater Facility is authorized to treat and discharge. This metric establishes an absolute limit, on an annual average daily basis, on the quantity of wastewater that can be treated by, and discharged from, the Expanded Wastewater Facility. Also as discussed above, once the two new underground injection wells are installed, the total design capacity of the four wells at the Expanded Wastewater Facility will be .998 MGD AADF. The two new injection wells are being added to ensure adequate disposal capacity for the .849 MGD permitted capacity and, importantly, to accommodate the peak hourly flow. The reclaimed water reuse system currently has an authorized design capacity of 1 MGD AADF, and this is not being changed by the Project, although the permitted capacity is being increased to .849 MGD AADF. As discussed in greater detail below, neither the design capacity nor the permitted capacity of the reuse system is a function of the irrigation application rate per acre of the golf course, and neither represent the amount of irrigation applied to the golf course per day. In determining the design capacity for the Expanded Wastewater Facility, Castle considered wastewater capacity demand for the facility through the year 2020, rather than over a 20- year period. This is because buildout of the properties on Stock Island that will contribute flow to the facility is reasonably projected to occur between 2018 and 2020. After buildout, there will be no additional properties being developed to contribute additional wastewater flows to the Expanded Wastewater Facility. The credible, persuasive evidence establishes that the proposed design capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62-600.200(19) and other pertinent provisions in chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence also establishes that the proposed permitted capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62- 600.200(62) and other pertinent provisions of chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence further establishes that the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. The credible, persuasive evidence also establishes that the underground injection wells, as designed, conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that there is reasonable assurance that the wells, when properly constructed, maintained, and operated, will discharge effluent in compliance with all pertinent statutes and rules, including the requirement that the effluent discharged down the injection wells meet AWT standards as of January 1, 2016. DEP Review and Proposed Issuance of the Permit at Issue The wastewater treatment facility and underground injection well applications for the Project were submitted to DEP on April 15, 2014. During DEP's review of the applications for the Project, the question arose whether the 1.273 MGD peak hourly flow stated in the permit application would trigger the so-called "deep well" requirement in section 403.086(10)(e)2. that the underground injection wells be cased to a minimum depth of 2,000 feet. DEP ultimately concluded that the term "design capacity," as used in the statute, referred to an average daily flow rate14/ over a specified period of time——here, a year——for the Expanded Wastewater Facility, rather than the transient peak hourly flow for the facility. Thus, the Expanded Wastewater Facility does not have a design capacity exceeding 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Expanded Wastewater Facility. DEP permit review staff issued one RAI, and KWRU timely provided the requested information. Upon receipt and review of KWRU's response to the RAI, DEP deemed the application for the Permit at Issue complete. DEP staff reviewed the permit applications for compliance with applicable statutory and rule requirements and standards. DEP's review does not entail re-designing or re- engineering the project or questioning the design engineer's reasonable exercise of judgment on design matters, as long as the project is accurately designed based on sound engineering principles and will operate in accordance with the applicable permitting requirements and standards. Thus, as a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to sound engineering principles——as is appropriate and authorized pursuant to the certification provisions on the application forms, rule 62-4.050(3), and chapter 471 and Florida Board of Engineering rules.15/ Gary Maier, P.E., professional engineer supervisor III and supervisor of DEP's domestic wastewater facility permit review staff, also reviewed the applications, the Intent to Issue, and the draft Permit at Issue to ensure that the Project complied with all applicable rules and standards and that KWRU had provided reasonable assurances such that the Project should be approved. Ultimately, DEP determined that KWRU provided reasonable assurances that the relevant permit applications met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to issue the Permit at Issue. Establishment of Prima Facie Entitlement to Permit at Issue The relevant portions of the permit file, including the permit applications, supporting information, and Notice of Intent to Issue for the Permit at Issue, were admitted into evidence at the final hearing. With the admission of these documents into evidence, KWRU established its prima facie case demonstrating entitlement to the Permit at Issue. See § 120.569(2)(p), Fla. Stat. Challenge to the Permit at Issue Once KWRU demonstrated prima facie entitlement to the Permit at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permit at Issue. See id. To prevail in this proceeding, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. Petitioners have raised numerous grounds in the Second Amended Verified Petition for Formal Administrative Hearing16/ that they contend mandate denial of the Permit at Issue. Each of these grounds is addressed below. Alleged Permit Application Deficiencies Petitioners contend that the Permit at Issue should be denied due to alleged deficiencies in the applications submitted for the Project. Capacity Analysis Report Petitioners allege that, under rule 62-600.405, KWRU was required to submit a Capacity Analysis Report ("CAR") as part of its application for the Permit at Issue and that its failure to do so renders the applications incomplete, thus requiring denial of the Permit at Issue. The purpose of a CAR is to analyze capacity at an existing wastewater facility and to apprise DEP when it becomes evident that expansion of the wastewater facility may be needed. Specifically, the CAR is performed and submitted on a periodic basis, or when certain contingencies occur, to apprise DEP of the actual flows through the facility. If the actual flows are approaching the facility's permitted capacity, the CAR serves to notify DEP that expansion of the facility may be warranted. Thus, the CAR helps ensure that the permittee recognizes the need for, and properly plans for, future expansion of the facility. In support of their contention, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who has experience in the planning and design of wastewater treatment facilities in Florida, including the Florida Keys. Lynch testified that the most recent three-month average daily flows reported to the DEP by KWRU repeatedly exceeded 50 percent of the permitted capacity of the Existing Wastewater Facility, thereby triggering the requirement in rule 62-600.40517/ that a CAR be submitted. KWRU previously submitted an initial CAR when the Existing Wastewater Facility historically exceeded 50 percent of its permitted capacity. Thereafter, KWRU submitted an updated CAR in April 2012, as part of the renewal application for the Existing Permit that KWRU filed in October 2011. The April 2012 CAR indicated that permitted flows would not be exceeded for ten years. Thus, under rule 62-600.405(5), a subsequent updated CAR would be due at five year intervals or when the applicant applied for an operation permit or renewal of an operation permit, whichever occurred first.18/ The persuasive evidence establishes that during the period between issuance of the Existing Permit in February 2012 and submittal of the applications for the Permit at Issue in 2014, the three-month average daily flows for the Existing Facility had not exceeded 50 percent of the treatment plant's capacity and the five-year interval CAR submittal interval (which would have expired in 2017) had not yet expired, so an updated CAR was neither required nor submitted. When development on Stock Island resumed in the 2012 through 2014 timeframe following an economic recession, it became apparent from actual flow data that the Existing Wastewater Facility would need to be expanded to accommodate the wastewater flow from new development, as well as to accommodate wastewater flow from existing development being required by law to connect to a central wastewater system. Accordingly, in April 2014, KWRU submitted the applications for the Permit at Issue. As part of KWRU's applications, the design and permitted capacity of the Existing Wastewater Facility were analyzed, and future wastewater flows for the facility were projected, taking into account all relevant factors, including projected development over an appropriate planning period, new connections from existing development, and the lack of seasonal variation in historic flows. Based on this information, the proposed design and permitted capacities for the Expanded Wastewater Facility were determined. This information is precisely that which would have been required in an updated CAR. Because all pertinent information necessary to determine the design and permitted capacities for the Expanded Wastewater Facility was submitted as part of the applications for the Permit at Issue, a separate CAR was not required and, indeed, would have been redundant and pointless. It should be noted that the Permit at Issue specifically requires submittal of a CAR upon renewal, which is five years from the date of issuance. Further, the Expanded Wastewater Facility is subject to chapter 62-600, including rule 62-600.405, so KWRU would be required to submit a CAR if circumstances specified in the rule were to occur.19/ Thus, Petitioners failed to demonstrate, by a preponderance of the competent substantial evidence, that a CAR was required to be submitted as part of applications for the Permit at Issue. Accordingly, the absence of a CAR as part of the applications is not a basis for denying the Permit at Issue. Deep Injection Well Requirement Petitioners contend that the design capacity for KWRU's wells exceeds 1 MGD, so KWRU was required under section 403.086(10)(e)2. to apply for approval to install deep injection wells——i.e., wells that are cased to a minimum depth of 2,000 feet. Petitioners further contend that KWRU's failure to include an application for deep injection wells in its applications thus mandates denial of the Permit at Issue. Under section 403.086(10)(e)1., injection wells serving wastewater facilities that have a design capacity of less than 1 MGD are required to be at least 90 feet deep and cased to a minimum depth of 60 feet. Under section 403.086(1)(e)2., injection wells serving wastewater facilities having a design capacity equal to or greater than 1 MGD must be cased to a minimum depth of 2,000 feet or such greater depth as may be required by DEP rule. As previously discussed, rule 62-600.200(19) defines "design capacity" as "the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities." The rule states that the design capacity is established by the permit applicant, and that the timeframe associated with the design capacity——such as annual average daily flow, maximum monthly average daily flow, or three- month average daily flow——also is specified by the applicant. Additionally, rule 62-600.400(3)(a), which is part of DEP's Design Requirements rule for domestic wastewater facilities, reiterates that the applicant establishes both the design capacity and the timeframe used to define its selected design capacity, with the caveat that the timeframe selected must reflect seasonal variations in flow, if any. As discussed above, the credible, persuasive evidence establishes that KWRU's selected design capacity and timeframe ——here, .849 MGD AADF——accurately and appropriately addresses the projected wastewater flows that will be treated by the Expanded Wastewater Facility. As Castle credibly testified, historical flows to the Existing Wastewater Facility do not indicate substantial seasonal residential flow, consistent with the workforce population residing year-round on Stock Island. Moreover, to the extent there may be some seasonal flow variation associated with projected hotel and commercial development, Castle took that into account in determining the design capacity for the Expanded Wastewater Facility. For these reasons, Castle's selection of AADF as the design capacity metric is appropriate, conforms to sound engineering principles, and complies with applicable DEP rules. Further, as previously discussed, the 1.273 MGD peak hourly flow is exactly that——the peak or maximum flow expressed on an hourly basis——that can be processed by the Expanded Wastewater Facility. It does not constitute the design capacity of the Expanded Wastewater Facility, which, by definition, is the average flow over a specified period of time. The persuasive evidence in the record shows that the proposed design capacity of the Expanded Wastewater Facility is .849 MGD AADF, and this design capacity is appropriate and based on sound engineering principles. As such, the design capacity of the facility is less than 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Project. Thus, Petitioners failed to demonstrate, by a preponderance of the evidence, that the deep well requirement in section 403.086(10)(e)2. applies to the Project. Accordingly, they did not establish that the Permit at Issue should be denied on the basis that KWRU did not apply for approval of deep injection wells as part of the applications for the Project. Identity of Permittee The Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, which is not an existing entity registered to do business in Florida or in any other state. Petitioners contend, and KWRU and DEP do not dispute, that a permit issued to an entity that does not legally exist cannot legally authorize any activities. Accordingly, to the extent the Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, Petitioners contend that this constitutes a basis for denying the Permit at Issue. At the hearing, DEP and KWRU presented credible evidence showing that the correct permittee is KW Resort Utilities Corp., not Key West Resort Utilities Corporation as was stated on the proposed Permit at Issue. Further, the permit applications correctly identify KWRU as the applicant for the Permit at Issue. Thus, identification of Key West Resort Utilities Corporation as the permittee on the proposed Permit at Issue was a typographical error, and the evidence establishes that this error will be corrected when the Permit at Issue is issued. If this typographical error is corrected, then the Permit at Issue should not be denied on this basis. Alleged Project Design and Engineering Deficiencies Petitioners allege that KWRU failed to provide reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the Expanded Wastewater Facility will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules. Petitioners further allege that KWRU has undersized the design capacity of the Expanded Wastewater Facility and that the appropriate design capacity is greater than 1 MGD, thus triggering the deep well requirement in section 403.086(10)(e)2. Projected Flows to Expanded Wastewater Facility In support of their position, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who testified that the future wastewater flows to the Expanded Wastewater Facility projected by KWRU in its applications are incorrect because they do not accurately address planned development in KWRU's service area, as required by the Ten States Standards. Lynch took the position that pursuant to the Ten States Standards, the appropriate planning horizon for the Project is at least ten years, which would require KWRU to project wastewater flow to the Expanded Wastewater Facility through approximately 2025, rather than through 2020, as projected in the applications for the Project. However, the persuasive evidence shows that KWRU utilized an appropriate planning horizon in projecting future wastewater flows to the Expanded Wastewater Facility. KWRU's facility design engineer, Castle testified, persuasively, that although the graphic submitted in the application shows the projected wastewater flows only through the year 2020, the planning horizon he used actually was infinite. This is because the projected buildout of the service area20/ to maximum wastewater flow is anticipated to occur between 2018 and 2020, and after that point, wastewater flows to the facility would remain constant. Thus, it was pointless to depict projected flows out to the year 2025——particularly since the narrative in the application describing the Project makes clear that buildout of KWRU's service area is anticipated to occur by 2020. Because the wastewater flows projected for the year 2020 accurately represent the maximum flows that the Expanded Wastewater Facility can process, the projected planning horizon to the year 2020 is appropriate for the facility, complies with the Ten States Standards, and complies with DEP rules. Lynch also asserted that the projected wastewater flows to the Expanded Wastewater Facility from development identified in the application do not accurately apply the standards in DOH Table I and that this inaccuracy further contributed to underestimation of the design capacity of the Expanded Wastewater Facility. Lynch arrived at this position by applying Table I to all identified future development——both residential and nonresidential——and considering an additional development (Key West Harbor Yacht Club) not listed in the applications. He projected that the future wastewater flow from these developments would be approximately 146,110 gallons per day——approximately 46,000 gallons per day higher than the 100,000 gallons per day that Lynch claimed KWRU projected for the planned developments on Stock Island. Based on the addition of 46,000 gallons to KWRU's proposed design capacity of .849 MGD, Lynch opined that .895 MGD is the design capacity that should have been proposed for the Expanded Wastewater Facility. However, the credible, persuasive evidence establishes that, in determining the design capacity of .849 MGD for the Expanded Wastewater Facility, Castle accurately projected the wastewater flow quantities from future development on Stock Island. Castle described in detail the process he undertook to determine the projected wastewater flows from the various land uses and locations on Stock Island through projected buildout between 2018 and 2020. Specifically, he identified planned nonresidential development on Stock Island expected to begin producing wastewater flows in 2014 and applied the DOH Table I standards to determine the projected flows for each development. To determine projected wastewater flow from future residential development on Stock Island, Castle identified approximately 40 acres of scarified or under-utilized property in KWRU's service area and applied a density of 12 equivalent dwelling units ("EDU") per acre,21/ with 167 gallons per day of wastewater flow attributable to each EDU, using actual historic wastewater flow data from the Master Plan. Additionally, for each scarified or under-utilized property having water frontage, he projected one boat slip per 35 feet of frontage and applied a 75-gallon-per-day flow for each boat slip using DOH Table I recreational vehicle flows. For years 2016 through 2019, Castle projected incremental increases in wastewater flows per year22/ to account for potential development of other currently occupied properties. The aggregate of all projected flows from the identified developments, the 40 acres and boat slips, and the incremental increases per year through buildout yielded a projected wastewater flow of .74 MGD to the Expanded Wastewater Facility by years 2018 through 2020, which represents buildout flow to the facility. Castle then added a "safety factor" of 15 percent to the projected .74 MGD wastewater flow to accommodate currently unknown future redevelopment of existing occupied properties, to reach the .849 MGD design capacity. The 46,000-gallon discrepancy between Lynch's .895 MGD design capacity calculation and Castle's .849 MGD design capacity calculation is attributable to four basic differences in how they each determined design capacity. First, Lynch used more recent development agreement and development order information that more precisely identified and quantified specific land uses than the information that KWRU had available to it at the time it prepared and submitted its application. However, the evidence did not establish that the flow information on which Lynch relied and that on which Castle relied were so appreciably different as to significantly affect the projected design capacity for the Expanded Wastewater Facility. Second, Lynch applied DOH Table I to project future wastewater flows from all future planned development on Stock Island, both residential and nonresidential, whereas Castle applied DOH Table I only to determine nonresidential development future flows, and used actual historic flow data from the Master Plan to determine residential development future flows. Castle's residential flow calculation using historical actual flow data conforms to the recommendation in section 11.242(a) of the Ten States Standards that actual flow data be used, to the extent possible, to predict future flows; thus, Castle's calculation likely more precisely projects future flow attributable to residential development on Stock Island.23/ Third, Lynch took into account the Key West Harbor Yacht Club flow into the Expanded Wastewater Facility, whereas KWRU did not consider this flow in projecting future flows to the facility. This omission constituted an oversight on KWRU's part, and the flow from this development should have been included in the wastewater flow projection for the facility. However, the persuasive evidence did not show that this omission constituted a significant error in KWRU's .849 MGD AADF design capacity projection.24/ Fourth, Lynch apparently misinterpreted a statement in the application referencing "such redevelopment" as referring to the known planned developments on Stock Island, which were specifically identified by name in the application, and, thus, interpreted the reference to 100,000 gallons as being the flow KWRU projected for those known, named developments. However, the persuasive evidence established that the 100,000 gallons that KWRU assigned to "such redevelopment" in its application referred not to the known, named developments identified in the application, but instead to presently unknown future development on Stock Island, which Castle took into account by including the 15 percent "safety factor" in determining design capacity. Pursuant to the foregoing, it is determined that KWRU demonstrated, by credible, persuasive evidence, that it accurately estimated future wastewater flows from projected development on Stock Island to determine an appropriate design capacity of .849 MGD AADF for the Expanded Wastewater Facility. Design Capacity Timeframe Petitioners allege that the timeframe associated with the design capacity specified by KWRU——the annual average daily flow, or AADF——is not appropriate for the Expanded Wastewater Facility because it fails to reflect seasonal flows to the facility as required by rules 62-600.200(16) and 62-600.400(3)(a). Petitioners assert that the design capacity for the facility should instead be expressed in maximum monthly average daily flow ("MMADF") to account for seasonal flows. In support, Petitioners presented the testimony of Lynch, who opined that the KWRU service area experiences seasonal flows driven by the influx of tourists to Stock Island during tourist season. Lynch based this opinion on the wastewater flow data for the Existing Wastewater Facility for the year 2014, and his calculations showing that the three-month average daily flow ("ADF") for October through December 2014 was 11 percent higher than the AADF and that the MMADF for that period was 16 percent higher than the AADF. Lynch considered this variation substantial enough to indicate seasonality, so that MMADF is the appropriate design capacity timeframe for the Expanded Wastewater Facility. Using MMADF as the design capacity timeframe, Lynch opined that the design capacity of the Expanded Wastewater Facility should be 1.04 MGD MMADF——which would trigger the deep well requirement in section 403.086(10)(e)2. Castle chose AADF as the timeframe for the Expanded Wastewater Facility design capacity because historical flow records over a period of years do not show significant seasonal variations in flow for Stock Island. Castle testified, credibly and persuasively, that while the historical flow data shows a consistent slight increase in flows from August to December, in his view, the variation is not significant enough to constitute a seasonal flow. This is consistent with the evidence establishing that Stock Island is a "bedroom community" having a mostly year- round workforce population. Lynch formulated his opinion regarding appropriate design capacity using 2014 flow data for the entire year, which was not available at the time KWRU filed its permit applications for the Project in April 2014. Although Lynch relied on more recent data, his opinion was based only on one year of data. By contrast, Castle selected AADF as the design capacity metric based on the previous five years of flow data, which showed variations in flow ranging between two percent and 12 percent on a three-month average daily flow basis. Castle credibly testified that these variations were not significant enough to indicate seasonal flows and did not closely correlate with tourist season in the Keys. Additionally, in calculating his flow projections for the Expanded Wastewater Facility, Castle assumed 100 percent year-round occupancy for residential units, so that his projected design capacity of .849 MGD necessarily took into account potential seasonal flows. Thus, to the extent there are seasonal flows, the facility simply will receive flows below the design capacity during off-season. The undersigned finds Castle's use of long-term historical flow data more reliable than Lynch's use of only one year of data in assessing whether there is flow seasonality.25/ DEP's wastewater permitting supervisor, Gary Maier, concurred that the variations in wastewater flow do not reflect a significant seasonal variation that would require the use of a smaller averaging period than AADF. Maier also observed that none of the wastewater facilities in the Florida Keys having a design capacity greater than 100,000 gallons per day has a design capacity based on MMADF. This evidences that Castle's selection of AADF as the timeframe metric conforms to the design capacity standard used for facilities of comparable size in the Florida Keys. Based on the foregoing, it is determined that KWRU's selection of AADF as the design capacity timeframe metric for the Expanded Wastewater Facility is appropriate and complies with DEP rules. Petitioners failed to demonstrate that KWRU's selection of AADF as the design capacity timeframe metric violates any applicable laws or rules. Accordingly, Petitioners did not demonstrate that the Permit at Issue should be denied on this basis. Ability of Expanded Wastewater Facility to Reliably Meet AWT Petitioners further allege that KWRU failed to provide a complete application demonstrating that the treatment processes for the Expanded Wastewater Facility will efficiently and reliably meet effluent limitations for design year flow. As discussed above, the evidence establishes that KWRU provided all of the information required for the applications for the Permit at Issue, so DEP correctly determined that the applications were complete before commencing its substantive review of the applications. Also as discussed above, Lynch opined that the proposed design capacity was undersized for the flows he projected for the Expanded Wastewater Facility. However, the persuasive evidence shows that KWRU's proposed design capacity of .849 MGD AADF is appropriate, conforms to sound engineering principles, and meets applicable statutory and rule requirements. In order to ensure that a wastewater facility functions effectively and reliably, it is important that the facility not be substantially oversized for the amount of wastewater flowing into the facility. In an over-sized facility, inconsistent timing of wastewater flow, lack of appropriate chemical environment for waste breakdown, and inadequate food supply for the microorganisms may lead to ineffective performance of the facility. A consequence of these imbalances is that undesirable microbes may populate the facility, causing incomplete solids settlement, overflow of solids downstream to the filters, and operational problems resulting in failure of the facility to treat wastewater to AWT standards. KWRU provided reasonable assurance, based on the proposed .849 MGD AADF design capacity and the other engineering features of the Project, that the Expanded Wastewater Facility is appropriately sized and will effectively and reliably treat the wastewater to AWT standards. Thus, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it is undersized and will not reliably meet AWT standards. Key West Golf Club Reuse System Issues Petitioners contend that as part of the applications for the Project, KWRU proposes to send 1 MGD of reclaimed water to the golf course. Petitioners claim that, given an irrigated area of 100.27 acres and an average irrigation rate of .73 inches per acre per day, only 300,000 gallons of reclaimed water per day is accounted for by reuse as irrigation. On that basis, Petitioners allege that KWRU has not demonstrated that the 700,000 gallon-per-day balance of reclaimed water sent to the golf course will be reused for a beneficial purpose rather than being disposed. This contention is based on a misunderstanding of the structure and function of the reuse system. The 1 MGD flow stated in the permit application is the design capacity of the reuse system, which is not being changed by the Permit at Issue. Importantly, this figure does not quantify the amount of water that is or actually will be sent to the golf course or applied as irrigation to the golf course irrigated area in a single day. Rather, it represents the flow capacity to which the reuse system is designed.26/ The applications for the Permit at Issue do not propose any changes to the quantity of reclaimed water being reused, which is governed by the irrigated acreage at the golf course and the irrigation rate. These parameters are not being changed. As previously discussed, KWRU sends reclaimed water to the golf course only on an as-needed basis, where it is stored in the ponds until needed for irrigation. If the course does not need reclaimed water sent to the ponds, KWRU does not send the water. Thus, the golf course controls the amount of reclaimed water that is sent to the storage ponds. Although the permitted capacity of the reuse system is being expanded from .499 MGD AADF to .849 MGD AADF, the actual amount of reclaimed water sent to the golf course by KWRU is not anticipated to change because, as discussed above, the amount being reused for irrigation is not being changed. Since the amount of reclaimed water being reused for irrigation is not increasing, the reuse system is not being expanded. Thus, the evidence does not show that 700,000 gallons per day of reclaimed water will be sent to the golf course for disposal, inconsistent with rule 62-610.810(2), rather than being reused for a beneficial purpose.27/ Petitioners also assert that the increased permitted capacity of the reuse system constitutes a "new or expanded reuse or land application project," so that an engineering report and reuse feasibility study were required as part of the applications for the Permit at Issue, pursuant to rule 62-610.310(1). KWRU previously provided these documents when it originally applied for authorization of the reuse system. The credible, persuasive evidence shows that increasing the permitted capacity of the reuse system does not trigger the requirement to submit another engineering report or reuse feasibility study. This is because no changes to the structural components or operation of the reuse system facilities are proposed. As Castle credibly explained, and Maier confirmed, the relevant question in determining whether an engineering report is required is whether the land application rate and/or the irrigated acreage is being changed, which would increase the amount of reclaimed water being reused and, thus, would require expansion of the reuse system. As discussed, neither the irrigated area nor the irrigation application rate is proposed to change under the Project. Thus, neither an engineering report nor a reuse feasibility study are required as part of the applications for the Permit at Issue. Therefore, Petitioners failed to demonstrate that the Permit at Issue should be denied on the basis that KWRU did not submit a reuse feasibility or engineering report as part of its applications for the Permit at Issue. Alleged Surface Water Quality Violations by Injection Wells Petitioners allege that disposing of the effluent from the Expanded Wastewater Facility through the injection wells will cause or contribute to violations of surface water quality standards codified in chapter 62-302. Petitioners further allege that, as a consequence, the discharge will violate antidegradation requirements in rules 62- 4.242, 62-302.300, and 62-302.700(1), and that the wells do not comply with the underground injection control rule requirement in rule 62-528.630(7), specific to Monroe County, that the wells not cause or contribute to surface water quality violations. Regulatory Status of Surface Waters in Stock Island Vicinity A significant portion of the surface waters in the Florida Keys, including those surrounding Stock Island and Key West, are classified as Class III surface waters pursuant to rule 62-302.400. Water quality criteria adopted by rule for Class III surface waters are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. As previously noted, certain portions of the Florida Keys, including the surface waters surrounding Stock Island and Key West, are designated an OFW. Fla. Admin. Code R. 62- 302.700(9)(i)13. No degradation of surface water quality, other than that allowed under rules 62-4.242(2) and (3), is permitted in an OFW. See Fla. Admin. Code R. 62-302.700(1). The narrative nutrient criterion codified at rule 62- 302.530(47)(a) states: "[t]he discharge of nutrients shall be limited as needed to prevent violations of other standards contained in this chapter. Man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Rules 62-302.300, 62-302.700, and 62-4.242, F.A.C." The narrative nutrient criterion codified at rule 62-302.530(47)(b) states: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." These criteria apply in Class III surface waters, including the surface waters in and around the Florida Keys. See Fla. Admin. Code R. 62-302.531(1). Rule 62-302.531(2) requires DEP to numerically interpret the narrative nutrient criterion for nutrients (nitrogen and phosphorus) and for nutrient response (chlorophyll- a). Where a site-specific numeric interpretation of rule 62- 302.530(47)(b) has been established, that numeric interpretation constitutes the primary standard applicable to that site. Fla. Admin. Code R. 62-302.531(2)(a). A range of natural factors affect nutrient loading for a given waterbody. Therefore, site- specific numeric interpretations of the narrative nutrient criteria generally are deemed more reliable than broadly applicable, non-site specific criteria. Estuary-specific numeric interpretations of the narrative nutrient criterion in rule 62-302.530(47)(b), consisting of nutrient values for nitrogen and phosphorus and a nutrient response value for chlorophyll-a have been adopted for many areas in the state of Florida, including the Florida Keys. These numeric interpretations——commonly referred to as "numeric nutrient criteria," or "NNCs"——are open water, area-wide averages. See Fla. Admin. Code R. 62-302.532(1). For the Florida Keys, seven Florida Keys Marine Nutrient Regions ("FKMNRs") have been identified and geographically delineated on a series of maps adopted by rule. For each of these FKMNRs, NNCs have been adopted for nitrogen, phosphorus, and chlorophyll-a. Fla. Admin. Code R. 62- 302.532(1)(g). The NNCs for the Lower Keys Region and the Back Bay Region are germane to this proceeding. For the Bay Back Region, the NNCs are .009 mg/L for phosphorus, .25 mg/L for nitrogen, and .3 µg/L for chlorophyll-a. For the Lower Keys Region, the NNCs are .008 mg/L for phosphorus, 0.21 mg/L for nitrogen, and 0.3 µg/L for chlorophyll-a. These NNCs are expressed as annual geometric means that are not to be exceeded more than once in a three-year period.28/ The area of water extending from the shoreline out to 500 meters offshore in the Florida Keys is referred to as the "Halo Zone." DEP has adopted by rule a map delineating the Halo Zone. The NNCs applicable to surface waters in each of the FKMNRs currently do not apply to the surface waters in the Halo Zone. Thus, only the narrative nutrient criteria codified at rules 62-302.530(47)(a) and (b) apply to surface waters in the Halo Zone at this time.29/ Additionally, pursuant to chapter 62-303, the Impaired Waters Rule, DEP has identified and delineated spatial assessment areas in waterbodies based on homogeneity for multiple water quality parameters.30/ These assessment areas, called "Waterbody IDs" or "WBIDs," are delineated for purposes of assessing, through water quality sampling, whether the surface waters within the WBID are impaired——that is, whether they fail to meet one or more of the applicable water quality standards due to pollutants.31/ DEP has delineated several WBIDs, identified by number, in the Halo Zone surrounding Key West and Stock Island. The Halo Zone surrounding Stock Island comprises WBID 6014B, and the Halo Zone surrounding Key West consists of WBIDs 6014A and 8073A through 8073H.32/ The Back Bay Region, which is located north of Stock Island and outside of the Halo Zone, is designated as WBID 8074. The Lower Keys Region consists of WBID 8073, which is located northwest of Stock Island and surrounding Key West outside of the Halo Zone, and WBID 8079, which is located south of Stock Island outside of the Halo Zone. Water quality monitoring, consisting of sampling for a range of parameters, is conducted at monitoring stations within each of these WBIDs. At least one monitoring station is located within each WBID. This water quality sampling is conducted according to DEP's applicable standard operating procedures. The monitoring stations have collected nutrient and nutrient response data spanning a period of years. The data collected in 1995 through 2013 are pertinent to this proceeding.33/ The Keys RAP, which was prepared in 2008 and updated in 2011, prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. As authorized under rule 62-303.600, DEP determined that the Keys RAP provides reasonable assurance that the restoration goals for the surface waters in the Florida Keys will be achieved by ensuring that all management activities specified in the Keys RAP would be implemented for specified waterbodies by 2015. Accordingly, in February 2012, DEP approved and adopted the Keys RAP by Secretarial Order. Current and historic water quality data show that all WBIDs in the Keys, including those in the Lower Keys Region, Back Bay Region, and Halo Zone for the surface waters surrounding Key West and Stock Island, are not impaired for nutrients——that is, that the NNCs and narrative nutrient criteria, as applicable, are being met. Pursuant to sections 403.061 and 403.067, Florida Statutes, and rule 62-303.600, DEP has classified the Florida Keys WBIDs as Category 2 under the waterbody use attainment classification scheme34/ for nutrients and nutrient response. The classification of the Keys WBIDs in this category means that sufficient water quality data are available to determine that at least one designated use is attained. Thus, as authorized by section 403.067 and rule 62-303.600(2), DEP has placed the Keys WBIDs on the "Delist List."35/ This "de-listing" action recognizes that the Florida Keys WBIDs, including those in the Halo Zone, are not impaired for nutrients and chlorophyll-a. Subsurface Geology in Vicinity of Stock Island The parties agree that, as a general proposition, the ground water and surface waters are connected to each other in the Florida Keys. However, no evidence was presented showing a specific location or locations where ground water connects to surface waters. Although it generally is undisputed that, at some point, ground water connects to surface waters, the parties disagree regarding whether, where, and how long it may take for the injected effluent to reach surface waters. Petitioners contend that due to the local geology, the injected effluent from the Existing Wastewater Facility rapidly reaches surface waters in the vicinity of Stock Island and that the increased discharge through the new injection wells will exacerbate and cause or contribute to surface water quality violations in the immediate vicinity of Stock Island and offshore. In support of this position, Petitioners presented the testimony of Scott Zednek, a Florida-licensed P.G. Zednek opined that due to the absence of subsurface sediments that would prevent upward flow to surface waters, the buoyant freshwater effluent injected down the wells will rapidly vertically migrate through the highly transmissive Key Largo Limestone and Miami Limestone to reach surface waters. To develop his opinion, Zednek reviewed a Florida Geological Survey boring log ("FGS Log") approximately one-third mile from the Existing Wastewater Treatment Facility and a Universal Engineering Services geotechnical study boring log ("UES Log") performed on the KWRU site. The FGS Log was prepared specifically to analyze the subsurface geology. The UES Log was performed as part of a geotechnical study to analyze subsurface conditions onsite specifically for the purpose of determining the load-bearing capability of the KWRU site to support a concrete water tank. As such, the FGS Log provides a more precise view of the subsurface geology in the vicinity of the KWRU site.36/ Based on the UES Log, Zednek opined that there are no confining layers underlying the KWRU site. The UES Log for the site shows N-values, generated using an ASTM-designated process for determining the resistivity or strength of the subsurface, of between two and 43 for the first 60 feet of sediment below the surface. According to Zednek, an N-value of less than 50 indicates lack of a confining layer. Further, his review of the UES Log did not show the presence of Q-layers, which may function as semi-confining layers, or aquitards, that would substantially restrict the movement of fluid, including the injected effluent.37/ Based on the UES Log, Zednek opined that the limestone underlying the site is fractured, creating vertical pathways for the injected effluent to migrate upward to the surface. Zednek testified that the Key Largo Limestone, into which the effluent is injected, is very porous and highly transmissive, facilitating rapid migration once the effluent is injected. Based on his review of the FGS Log, Zednek testified that a Q-layer first appears at approximately 62 feet below the ground surface——below the depth of the injection wells' casing—— so it would not act as a confining layer for the injected effluent. Zednek further observed that this Q-layer is only 1.5 centimeters thick. In his experience, this thickness is not sufficient to create a confining or semi-confining layer. Zednek thus opined that the subsurface geology at the KWRU site will enable and facilitate vertical migration of the injected effluent to surface waters. Zednek also noted the proximity of the Safe Harbor channel cut. He opined that the injected effluent likely would horizontally migrate through the highly transmissive Key Largo Limestone,38/ then vertically migrate to surface waters through the "path of least resistance" at the Safe Harbor channel cut. As further support for his opinion, Zednek cited an interim report summarizing results of a subsurface dye tracer study performed for the Florida Keys Aqueduct Authority regional wastewater treatment facility. The study's purpose was to determine whether the subsurface geology at the Cudjoe Key location was sufficiently confining to prevent vertical migration of the injected effluent from shallow injection wells proposed at that facility. According to Zednek, the interim report showed that the subsurface at the injection site was not sufficiently confining to prevent the injected effluent from rapidly vertically migrating to surface waters. Petitioners also presented the testimony of John Paul, Ph.D., in support of their contention that the injected effluent from the Expanded Wastewater Facility would rapidly rise through the subsurface limestone up into surface waters. Dr. Paul testified regarding viral tracer studies he had conducted at Long Key, approximately 65 miles east-northeast of Stock Island, and at the Saddlebunch Keys, located approximately 20 miles east- northeast of Stock Island. In conducting these studies, Paul injected bacteriophage viruses into Class V wells and tracked their movement into surface waters. In the Long Key study, the injected viruses moved through the subsurface limestone to the south-southeast and appeared in surface waters in deep canals on the ocean side of U.S. 1 approximately 53 hours after injection. In the Saddlebunch Keys study, the viruses also appeared in surface waters some distance south-southeast of the location at which they were injected.39/ Paul acknowledged that when the viruses appeared in surface waters, they were detected at a concentration of one trillionth (.0000000000001 or 1 x 10-12) less than the concentration in which they had been injected, indicating significant dilution by ground water and/or surface waters. He also acknowledged that canals dredged to depths shallower than the injected depth may not facilitate rapid migration of the injected effluent to surface waters. In rebuttal, KWRU presented the testimony of Michael Alfieri, a Florida-licensed P.G. who specializes in hydrogeology. Alfieri examined the FGS Log and UES Log, and also reviewed the detailed lithology logs and photographs for the FGS Log. Based on his review of this information, Alfieri opined that the FGS Log indicates the presence of semi-confining layers that function as aquitards in the first 60 feet of subsurface sediment. Alfieri noted that the existence of an aquitard depends on the nature of the geologic materials present at that location, so that N-values do not perfectly correlate with the presence or absence of confining layers. Thus, a carbonate silt or clay having an N-value of only two may better function as an aquitard than a porous, transmissive limestone having an N-value of 50, and silts or clays having a thickness as little as one centimeter may function as an aquitard to significantly impede fluid flow.40/ Based on his review of the FGS Log and the detailed lithology log descriptions and photographs for the FGS Log, Alfieri observed four laminated calcrete zones, six Q-zones, and chalky limestone within the first 60 feet——all of which would function as aquitards to impede the vertical movement of the effluent.41/ Thus, according to Alfieri, the effluent is anticipated to migrate laterally from the injection wells below these confining layers before migrating through a vertical pathway to reach surface waters at an unknown location. To predict the likely migration pathway for the effluent, Alfieri conducted hydrological modeling using a simplistic SEAWAT computer model. He used horizontal and vertical transmissivity values for the subsurface strata derived from geological studies previously conducted in the Florida Keys. Although these studies indicate greater horizontal than vertical transmissivity, Alfieri assumed equal vertical and horizontal transmissivity for modeling purposes——necessarily yielding more conservative results than would be anticipated to occur in real life. Accordingly, the modeling results showed more rapid vertical migration than would be anticipated in real life when the Q-zones and calcrete layers depicted in the FGS Log are considered. Even with these conservative assumptions, the modeling results showed the injected effluent migrating horizontally at least a mile offshore42/ before migrating upward to surface waters. The persuasive evidence shows that the injected effluent will be confined to the subsurface and will travel laterally a substantial distance before rising to surface waters at some unknown location or locations offshore. Thus, the credible, persuasive evidence does not support the conclusion that the effluent will rapidly rise to the surface waters in the nearshore area in the vicinity of the KWRU site.43/ Narrative Nutrient Criteria Petitioners allege that the effluent injected down the wells into the ground water will reach surface waters, causing or contributing to a violation of the narrative nutrient criteria for surface waters codified in rules 62-302.530(47)(a) and (b).44/ In support, Petitioners presented the testimony of James Fourqurean, Ph.D., who has extensive experience in research on Florida Keys aquatic ecosystems in their healthy and imbalanced states. Dr. Fourqurean described these ecosystems in their healthy state and in their nutrient-enriched state. Florida Keys nearshore ecosystems normally are oligotrophic, which means they are nutrient-limited. Thus, they do not normally exhibit high chlorophyll-a levels and microalgae counts. When nutrient levels in the Florida Keys ecosystems increase——whether by increasing the concentration of nutrients in discharges or by increasing the volume of water containing nutrients——primary production, i.e., plant growth, increases. Seagrass communities are phosphorus-limited, so that when these communities are exposed to phosphorus-enriched water, the phosphorus is rapidly absorbed from the water column and is stored in the benthos.45/ This phosphorus capture initially leads to increased seagrass abundance, but as phosphorus enrichment continues, the community species composition rapidly shifts to favoring seaweed and microscopic algae, ultimately damaging or destroying the seagrass community. Coral reef communities similarly are nitrogen-limited. Thus, when coral reef communities are exposed to nitrogen- enriched water, they shift to algae-dominated communities——again, damaging or destroying the coral reef communities. Based on historical aerial photographs of the area surrounding Safe Harbor and his experience studying seagrasses in the Florida Keys, Fourqurean concluded that the natural seagrass populations in the entire Florida Keys National Marine Sanctuary area, which includes the Stock Island area, are experiencing ecological imbalance. On the basis of the water quality sampling he conducted in and around Safe Harbor, Fourqurean opined that the imbalance is the result of man-induced nutrient enrichment. However, he did not engage in field studies in and around Safe Harbor, so could not cite specific examples where seagrasses had been replaced by algal-dominated communities in that area. Fourqurean noted that human waste contains high concentrations of phosphorus and nitrogen. In his view, because the effluent from the Existing Wastewater Facility contains phosphorous, it necessarily constitutes a source of phosphorous in the surface waters in Safe Harbor, even though it is injected into ground water. However, he acknowledged the existence of numerous other sources of nitrogen and phosphorus in the Safe Harbor vicinity, including septic tanks, boat cleaning operations and pump outs, and storm water runoff. He further acknowledged that he did not know where or when effluent from the Existing Wastewater Facility (and, by extension, the Expanded Wastewater Facility) may reach surface waters. Fourqurean acknowledged that the Permit at Issue would authorize the injection of effluent treated to AWT standards into ground water, rather than directly to surface waters, and he further acknowledged that the total phosphorus and nitrogen loading from the Expanded Wastewater Facility would substantially decrease as a result of conversion to AWT, even though the volume of effluent discharged down the wells may as much as double. He remained concerned that the Expanded Wastewater Facility may contribute phosphorus——even in very small quantities——to surface waters, causing imbalance to seagrass communities. He also opined that when saline ground water and the fresher effluent mix, the resulting brackish solution would dissolve the calcium carbonate comprising the subsurface limestone, releasing stored phosphorus that would eventually reach surface waters and negatively affect nearshore seagrass communities, However, he acknowledged that depending on subsurface physical conditions and flow paths of the effluent, phosphorous, nitrogen, or both, may be completely removed prior to the effluent reaching surface waters. He further acknowledged that seagrass community health in the Florida Keys National Marine Sanctuary has improved in the last two years and that water quality also has improved, reversing a ten-year decline. This is consistent with replacement of onsite septic tanks by central wastewater treatment systems in the Florida Keys. On rebuttal, KWRU presented the testimony of William Precht, who has extensive experience with Florida Keys geology and aquatic communities. Precht confirmed the existence of numerous sources of significant nutrient enrichment in the Safe Harbor vicinity other than the Existing Wastewater Facility, and noted that these sources must be taken into account when analyzing nutrient enrichment in Safe Harbor. He testified that raw wastewater is particularly deleterious to benthic communities. Thus, connecting wastewater generators that currently use septic tanks to central wastewater treatment systems can significantly improve water quality. Precht observed that Fourqurean's single-day sampling in the Safe Harbor area provided information regarding variability in nutrient concentrations, but characterized Fourqurean's conclusion that the Existing Wastewater Facility was the source of the nutrients as "unscientific" because it was based on supposition rather than on testing. He opined that the limited data set gathered over a one-day period could not reliably identify the source of nutrient enrichment in Safe Harbor. Precht testified that flushing capability is a key influence on nutrient concentration in surface waters. The further from a natural marine environment that water quality testing is performed, the more likely water quality will be poor due to nutrient enrichment from land-based sources. Given the configuration of Safe Harbor, water quality would be poorest in the interior dead-end canals and would steadily improve as one moved into more open water and flushing increased, with the highest water quality in open waters outside the canal system. Precht opined that the presence of noxious benthic plant life in the Safe Harbor vicinity may be attributable the destruction of seagrass communities in the area by historical dredging, rather than due to nutrient enrichment. Based on the reduction in total nitrogen and total phosphorus loading as a result of implementing AWT, Precht opined that the proposed discharge will not negatively affect the biological communities in the Safe Harbor vicinity. He further opined that due to the rapid uptake of phosphorus in the marine environment and due to denitrification that occurs in ground water and in marine surface waters, there is little chance that any nutrient loading that may result from the injected effluent would cause damage to the coral reef environment. Also on rebuttal, Alfieri persuasively testified that although phosphate release does occur when freshwater is injected into limestone that formed in a saline environment, this process gradually occurs over "geologic time"——that is, over millions of years. Therefore, he did not anticipate a significant release of phosphate from the subsurface limestone as a result of the effluent discharge. Also, limestone rapidly absorbs phosphorous, so phosphorus in the injected effluent would be absorbed quickly by the subsurface limestone.46/ Further, in any event, the effluent will be diluted by at least seven orders of magnitude——that is, one hundred millionth (.00000001)——of the injected concentration by the ground water, and/or by surface waters (assuming the effluent eventually reaches surface waters). As discussed above, the Keys RAP was prepared in 2008 and updated in 2011. The Keys RAP prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. Pursuant to the Impaired Waters Rule and DEP's adoption of the Keys RAP, activities that are consistent with the Keys RAP are considered to provide reasonable assurance that the narrative nutrient criterion in rule 62-302.530(47)(b) will be met. As discussed above, the Project will expand a centralized wastewater treatment plant that will accept, and treat to AWT standards, wastewater generated by development on Stock Island——including development that currently relies on onsite septic tanks for wastewater disposal. The Project is consistent with the Keys RAP, so there is reasonable assurance that the Project will meet the narrative nutrient criterion in rule 62-302.530(47)(b). The persuasive evidence shows that the Project will not cause or contribute to alterations of nutrient concentrations in water bodies so as to cause an imbalance in natural populations of aquatic flora or fauna. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the narrative nutrient criterion in rule 62-302.530(47)(b). Further, for the reasons discussed below, it also is determined that the Project will not violate the narrative nutrient criterion codified at rule 62-302.530(47)(a). Numeric Nutrient Criteria Petitioners also allege that the effluent will cause or contribute to violation of the estuary-specific numeric interpretations of the narrative nutrient criteria for the Back Bay nutrient region, codified at rule 62-302.532(1)(g)1., and the Lower Keys nutrient region, codified at rule 62-302.532(1)(g)3. In support, Petitioners cite the results of surface water sampling performed by Fourqurean in the Safe Harbor area showing high levels of nitrogen, phosphorus, and chlorophyll-a. Petitioners contend that these high nutrient levels evidence that the existing injection wells already are causing or contributing to surface water quality violations in the waters surrounding Stock Island, and that the increased effluent discharge from the proposed new injection wells will exacerbate this situation, further causing or contributing to violations of surface water quality standards. In preparing his opinion regarding the effect of the proposed injection wells on surface water quality, Fourqurean sampled surface water quality on one day at nine stations located in the vicinity of Stock Island, ranging from shallow waters inside the Safe Harbor basin to deeper waters offshore. Samples were collected at the surface and at a depth of one meter below the surface following the standard operating procedures for water quality sampling established by the Florida Keys Water Quality Protection Program. Fourqurean testified that the samples collected at the stations inside the Safe Harbor basin and near the shore of Stock Island showed very high levels of chlorophyll-a, evidencing that these areas are dominated by microalgae and, thus, are eutrophic. Additionally, the samples collected inside the Safe Harbor basin exhibited very high phosphorus concentrations—— almost three times greater than the estuary-specific numeric nutrient criterion for phosphorus. Phosphorus concentrations correspondingly decreased as samples were collected outside of the basin and offshore. Nitrogen concentrations followed a similar pattern in the sampling that Fourqurean conducted inside and outside of the Safe Harbor basin. According to Fourqurean, the high nutrient concentrations in the samples taken in Safe Harbor, when compared to the lower concentrations in samples taken outside of Safe Harbor, evidence the existence of a large source of phosphorous and nitrogen in Safe Harbor——in his view, the Existing Wastewater Facility. However, Fourqurean acknowledged that there are many potential nutrient enrichment sources on Stock Island, including fishing operations, boat sewage pump-outs, and direct discharges of storm water to surface waters. He further acknowledged that the specific source of phosphorus and nitrogen in the surface waters surrounding Stock Island cannot be identified. He did not opine as to the relative amounts of nutrients in surface waters that he believes are being contributed by the Existing Wastewater Facility or that will be contributed by the Expanded Wastewater Facility, as compared to other nutrient sources in the Safe Harbor area. He also acknowledged that a scientifically-valid water quality study would require more than a single day of sampling.47/ Kenneth Weaver, environmental administrator for DEP's Standards Development Section,48/ credibly and persuasively testified, and the water quality data for nutrients and chlorophyll-a collected in the WBIDs surrounding Key West and Stock Island show, that the surface waters in these WBIDs meet the applicable NNCs.49/ Historical water quality data also show that since 2008, the surface waters in these WBIDs continuously have met the baseline concentrations on which the NNCs were established and adopted. Even with the increased volume of wastewater treated by the Expanded Wastewater Facility, implementation of the AWT standard by the facility's wastewater treatment trains will substantially reduce the amount of total nitrogen and total phosphorus discharged into ground water through the injection wells. Specifically, for total nitrogen, the concentration will be reduced from 13.92 mg/L to 2.25 mg/L, and the total amount of nitrogen loading will be reduced from 58 to 15.9 pounds per day, representing a total net reduction of 72.4 percent in the discharge of total nitrogen. For total phosphorus, the concentration will be reduced from 3.47 mg/L to .75 mg/L, and the total amount of phosphorus loading will be reduced from 14.4 to 5.3 pounds per day, representing a total net reduction of 63.3 percent in the discharge of total phosphorus.50/ Weaver addressed the effects of these projected nutrient discharge concentrations on the surface waters in WBIDs 8074 and 8079, which comprise the portions of the Lower Keys Region and Back Bay Region closest to the KWRU site. He opined that, because these regions are currently meeting the applicable NNCs for nitrogen and phosphorus, and because KWRU's implementation of AWT will result in substantial reduction of total nitrogen and phosphorus loading, the NNCs will continue to be met in these regions——even in a "worst-case" scenario that assumes all of the treated effluent from the Expanded Wastewater Facility is disposed of through the injection wells and reaches the surface. The persuasive evidence shows that the Project will not cause or contribute to violations of the applicable numeric nutrient criteria. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the applicable numeric nutrient criteria in rule 62-302.532(1)(g)1. and 3. Surface Water "Free-From" Standards Petitioners allege that the effluent contains iron and copper above detection limits, as well as personal care products and pharmaceuticals, and that these constituents violate rules 62-302.500(1)(a)5. and 62-302.530(61). Rule 62- 302.500(1)(a)5. requires all surface waters of the state to be free from domestic, industrial, agricultural, or other man- induced non-thermal components of discharges which, alone or in combination with other components of discharges (whether thermal or non-thermal), are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species, unless specific standards for such components are established by rule. Rule 62-302.530(61) effectively requires surface waters to be free from substances in concentrations which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants. These rules collectively comprise the "free-from" standards for surface waters. Petitioners presented no evidence to substantiate the allegation that the effluent from the Expanded Wastewater Facility will contain pharmaceuticals or personal care products. However, even assuming these constituents were present in the effluent, Petitioners did not present evidence showing that they are carcinogenic; mutagenic; or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species; or that they are injurious or chronically toxic to, or produce adverse physiological or behavioral response, in humans, animals, or plants. Petitioners did not present evidence showing that the effluent contains copper and iron in quantities that violate any applicable surface water quality standards, including the surface water "free-from" standards. Paul testified, based on sampling he conducted at domestic wastewater outfalls discharging directly to surface waters, that effluent treated to AWT standards often contains pathogenic bacteria and viruses that constitute threats to human health. On this basis, he opined that even though the effluent from the Expanded Wastewater Facility is treated to AWT, it may contain pathogenic constituents that are harmful to human health. However, as previously discussed, the evidence shows that the effluent discharged through KWRU's injection wells will be substantially diluted by groundwater, and also by surface waters to the extent it reaches surface waters at some unknown location. Accordingly, the results of Paul's pathogen studies cannot be extrapolated to conclude that KWRU's effluent also will contain pathogenic bacteria and viruses in such amounts as to constitute a threat to human health. Petitioners failed to show that the effluent disposed of in the injection wells will cause or contribute to violations of the surface water quality standards in rules 62- 302.500(1)(a)5. and 62-302.530(61). Dilution to Meet Surface Water Quality Standards Petitioners allege that KWRU is relying on dilution of the effluent in order to meet surface water quality standards without having been permitted for a mixing zone, in violation of rule 62-302.500(1)(c).51/ This contention lacks merit. As discussed in detail above, the credible, persuasive evidence establishes that the effluent discharged through the injection wells will not violate water quality standards for and parameters, including for nutrients, and will not cause or contribute to the violation of water quality standards. The credible, persuasive evidence establishes that once injected, the effluent will horizontally migrate a considerable distance before it may migrate vertically to reach surface waters. The parties generally agree that ground water and surface waters are "connected" in the Florida Keys. To that point, although it appears likely that at some point the effluent will reach surface water, the evidence does not establish that is an absolute certainty. Nonetheless, even assuming the effluent would reach surface waters at some unknown location and time, the persuasive evidence shows that it would be so substantially diluted by the ground water that it would neither cause nor contribute to violations of surface water quality standards. Further, the persuasive evidence, consisting of Weaver's "worst case" analysis of nutrient loading from the effluent discharge, which assumed no dilution by ground water, establishes that even if the effluent——which will be treated to AWT standards——were discharged directly into surface waters, it would meet the applicable nutrient criteria. Finally, Petitioners' claim assumes that the effluent will be discharged into surface waters. However, as discussed above and in greater detail below, to the extent the effluent ultimately may be discharged to surface waters, such discharge would be indirect, so would not be subject to statutory and rule provisions requiring establishment of a mixing zone. For these reasons, Petitioners failed to prove that KWRU violated any applicable law or rule by not requesting and obtaining a mixing zone for the discharge of the effluent through the injection wells. Class V Injection Wells in Monroe County Petitioners also allege that issuance of the Permit at Issue violates rule 62-528.630(7), which requires all Class V Group 3 domestic wastewater injection wells in Monroe County to provide reasonable assurance that operation of the well will not cause or contribute to a violation of surface waters standards as defined in chapter 62-302. As discussed above, the credible, persuasive evidence establishes that the operation of the wells as authorized under the Permit at Issue will not cause or contribute to violations of surface water quality standards codified in chapter 62-302. Accordingly, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it violates rule 62-528.630(7). Antidegradation Petitioners contend that the Permit at Issue must be denied because KWRU failed to provide reasonable assurance that the injection of effluent will not violate the antidegradation requirements applicable to surface waters codified at rules 62- 4.242, 62-302.300, 62-302.530(47)(a), and 62-302.700(1). This contention lacks merit. As more fully discussed below, the antidegradation requirements in these rules apply only to a direct discharge to surface waters, which is not present in this case. Here, the evidence clearly establishes that the injection wells do not directly discharge effluent into surface waters. It is undisputed that the effluent will be injected from the wells into Class III ground water, where it will migrate through the subsurface strata. Although it is likely that, due to a "connection" between ground water and surface waters, the effluent ultimately will reach surface waters at some unknown location or locations at some unknown time, this constitutes an indirect discharge, which is specifically excluded from the term "discharge of a pollutant." Fla. Admin. Code R. 62-620.200(13). However, even if the antidegradation rules did apply to the discharge of the effluent through the injection wells, Petitioners failed to prove that the discharge would degrade surface waters. As discussed above, the credible, persuasive evidence establishes that the surface waters in the Florida Keys, including those in and around Stock Island and Key West, currently meet the narrative and/or nutrient criteria, as applicable, and that effluent discharged through the injection wells will be treated to AWT standards, substantially reducing the facility's total nutrient loading below current levels. Thus, the credible, persuasive evidence established that, even in a "worst-case" scenario, which assumes no dilution of the effluent by ground or surface waters, the effluent still would not cause or contribute to a violation of the narrative or numeric nutrient criteria. As discussed above, the credible, persuasive evidence showed that, in fact, the effluent will be very substantially diluted by the ground water into which it is injected, and will be further diluted if and when it ultimately reaches surface waters. For these reasons, Petitioners failed to prove that KWRU did not provide reasonable assurance that the disposal of the effluent through the injection wells would not degrade surface waters, in violation of rules 62-4.242, 62-302.300, 62- 302.530(47)(a), and 62-302.700(1). Alleged Violation of Ground Water Standards Petitioners allege that KWRU did not provide reasonable assurance that the injection wells would not violate applicable ground water standards. Petitioners further allege that there is an underground drinking water source under Stock Island. In that case, more stringent ground water quality and injection well rule standards would apply to operation of the injection wells. Petitioners did not present any credible, persuasive evidence to support these allegations. The persuasive evidence establishes that although there is a fresh water lens under Stock Island, it is not classified as an underground source of drinking water52/ due to its substantial variability in horizontal and vertical extent, which renders the salinity levels highly variable. Thus, the ground water at Stock Island is classified as Class G-III ground water which is non-potable ground water having a total dissolved solids content of 10,000 mg/L or greater, or having a total dissolved solids content of 3,000 to 10,000 mg/L and having been determined to have no reasonable potential as a future source of drinking water or designated by rule as an exempted aquifer. Only the minimum criteria for ground water, known as the "free-from" standards, apply to Class G-III ground water. Fla. Admin. Code R. 62-520.430(1). These criteria require that at all times and in all places, ground water be free from discharge components in concentrations that are carcinogenic, teratogenic, mutagenic, or toxic to humans; acutely toxic within surface waters affected by ground water; pose a serious danger to the public health, safety, or welfare; create or constitute a nuisance; or impair the reasonable and beneficial use of adjacent waters. Fla. Admin. Code R. 62-520.400. There is no evidentiary basis on which to infer that the effluent from Expanded Wastewater Facility that is disposed through the injection wells will violate the free-from standards KWRU's many years of effluent monitoring at the Existing Wastewater Facility show that the effluent does not violate these standards. Further, David Rhodes, a Florida-licensed P.G. employed by DEP, credibly testified that a violation of the free- from standards necessarily would entail the presence of toxic materials in KWRU's effluent and that there would be immediate and dramatic effects on the flora and fauna at the golf course, where reclaimed water is reused for irrigation. Since such effects never have occurred, it is reasonable to infer that the effluent from the Expanded Wastewater Facility will not violate the free-from standards.53/ Additionally, as previously addressed, the credible, persuasive evidence demonstrates that no surface water quality violations will result from installation and operation of the injection wells as part of the Expanded Wastewater Facility. Accordingly, the reasonable and beneficial use of adjacent waters will not be impaired due as a result of the injection wells. Petitioners also claim that due to inadequate treatment by the Expanded Wastewater Facility, the effluent disposed in the injection wells will contain unacceptably high levels of bacteria and viruses. The persuasive evidence establishes that KWRU provides high-level disinfection prior to injecting the effluent or sending the reclaimed water for reuse at the golf course. Historical monitoring data shows that KWRU's effluent complies with applicable microbial standards, and unrebutted evidence consisting of quality-related beach closure data for the Florida Keys, gathered as part of the Department of Health's Healthy Beaches monitoring program, indicates that no beach closings in the Florida Keys ever have been attributed to KWRU's Existing Wastewater Facility. Petitioners did not prove that KWRU failed to provide reasonable assurance that operation of the injection wells authorized as part of the Project will not result in violations of applicable ground water standards. To the contrary, KWRU provided reasonable assurance that the effluent from the Expanded Wastewater Facility disposed in the injection wells authorized as part of the Project will not violate any applicable ground water standards. Alleged Water Quality Violations Due to Reuse System Petitioners allege that KWRU did not provide reasonable assurance that the storage of up to 1 MGD of reclaimed water in the reuse system storage ponds on the Key West Golf Club golf course will not cause or contribute to a violation of surface water quality standards and ground water standards. Specifically, Petitioners posit that, because the ponds are unlined, reclaimed water from the Expanded Wastewater Facility will leach from the ponds into the ground water and reach surface waters, violating surface water quality standards and ground water standards and negatively impacting human health through high levels of microbial pathogens, pharmaceuticals, and personal care products. Petitioners further allege that discharge of reclaimed water from the ponds into the ground water could mobilize constituents of concern from the Key West Landfill and a closed waste-to-energy facility, both of which are near the golf course, ultimately resulting in surface water quality standards and ground water violations. In support of these contentions, Petitioners presented the testimony of Scott Zednek, who testified that the reclaimed water, which is fresher than the surrounding ground water, may leach from the ponds into the ground water, and thereafter potentially may reach surface waters. According to Zednek, this leaching could occur because the ponds are unlined. Additionally, Zednek opined that, because there is a closed landfill near the golf course, the reclaimed water leaching from the reuse system ponds could mobilize and spread contaminants from the landfill. The persuasive evidence demonstrates that storage of the reclaimed water in the reuse system ponds will not result in violations of ground water standards or surface water quality standards. Although the golf course ponds are unlined in the sense that a high-density polyethylene or impermeable clay liner has not been installed on the bottom and sides of the ponds, over the years, marl has formed on the bottom and sides of the ponds, creating an aquitard that substantially confines the reclaimed water to the ponds, rather than allowing it to readily leach into the ground water. Further, the reclaimed water generally is less saline than the ground water underlying the course, so tends to "float" on top of, rather than readily mixing with, the denser, more saline ground water. Additionally, the evidence shows that years of historical ground water monitoring data obtained through monitoring wells on the golf course near the reuse system ponds showed no ground water standards violations as a result of storing reclaimed water from KWRU in the ponds.54/ Because the amount of reclaimed water being sent to the reuse storage ponds is not being changed by the Project, and the nutrient levels in the reclaimed water are being through AWT, there is no factual basis from which to infer that storage of the reclaimed water in the pond will result in violations of ground water standards or surface water quality standards. The persuasive evidence also does not support Zednek's view that reclaimed water leaching into the ground water from the storage ponds will mobilize pollutants under the nearby landfill. As discussed above, the persuasive evidence establishes that, due to the aquitard, there will be very little leaching of reclaimed water into the ground water, and even if such leaching did occur, there would be very little mixing of the reclaimed water with the more saline ground water. As such, there is no demonstrated factual basis on which to infer that reclaimed water will flow under, and mobilize and spread pollutants from, the landfill. Further, the evidence establishes that the predominant ground water flow direction under Stock Island is to the south- southeast. Since the landfill is located north of the reuse system ponds, any reclaimed water that did enter ground water would flow south-southeast, away from the landfill. Zednek also opined that if the storage ponds overflowed, the reclaimed water could run off into surface waters, resulting in surface water quality violations. However, the evidence establishes that KWRU will only send as much reclaimed water to the reuse storage ponds as the Key West Golf Club requests, so any assertion that the ponds will overflow is speculative. Further, even if the ponds were to overflow, Petitioners did not show that the reclaimed water would flow into surface waters, or that it would violate surface water quality standards if it were to flow into surface waters. Petitioners did not prove that KWRU failed to provide reasonable assurance that the storage of reclaimed water in the reuse system storage ponds at the Key West Golf Club will not violate any ground water standards. Stated another way, KWRU provided reasonable assurance that the storage of reclaimed water in the reuse system ponds at the Key West Golf Club golf course will not cause or contribute to violations of ground water standards or surface water quality standards. Applicability of AWT to Existing Wastewater Facility Commencing January 1, 2016, the two new treatment trains authorized by the Permit at Issue must meet the AWT standards. These treatment trains are authorized to treat wastewater to specified secondary standards through December 31, 2015. Petitioners assert that the Permit at Issue must be denied because the two new treatment trains should be required to meet AWT standards immediately upon operation, and that allowing the new treatment trains to meet secondary standards through December 31, 2015, violates section 403.806(10) and rule 62- 620.620(4). Sections 403.086(10)(c) and (d) expressly impose the AWT standards on all new or expanded domestic wastewater discharges after December 31, 2015. Accordingly, the Permit at Issue is completely consistent with the statute. Further, the Permit at Issue does not violate rule 62- 620.602(4). That rule requires a wastewater facility permit applicant to make certain specified demonstrations when a permit is renewed, revised, or reissued having a less stringent effluent limitation than contained in a previous permit. Although the Existing Permit states that the Existing Wastewater Facility has been modified to meet the AWT standards, it further states: "[t]he extended aeration process will be switched to the AWT nutrient removal system prior to January 1, 2016." The clear import of this statement is that the AWT standards are not required to be met until January 1, 2016, consistent with section 403.806(10). Because the Permit at Issue also requires the new treatment trains to meet the AWT standards commencing on January 1, 2016, the Permit at Issue does not impose a less stringent effluent limitation than that imposed by the Existing Permit; accordingly, KWRU is not required to make the so-called "anti-backsliding" demonstrations set forth in rule 62- 620.620(4). Furthermore, it is undisputed that the new treatment trains will not be constructed and operational before January 1, 2016; thus, as a practical matter, the new treatment trains must meet the AWT standards immediately upon going into operation. Thus, Petitioners have not shown that the Permit at Issue should be denied on the basis that it violates section 403.806(10) and rule 62-620.620(4). Petitioners' Standing As noted above, Petitioner Halloran, resides in Key West, Florida. His residence fronts on the water and he owns a boat. Halloran and his family use and enjoy the waters around Key West for swimming, fishing, kayaking, and other in-water recreational uses, eat local-caught seafood, and engage in nature photography. Halloran also owns rental properties that front on the water, and he owns and rents out dock space for houseboat mooring. He is a member of Last Stand. Halloran has challenged the Permit at Issue because he is concerned that the increased discharge of effluent from the Project down the injection wells will degrade the waters around Key West where he and his family engage in in-water recreational uses. He also is concerned that the increased effluent discharge, particularly nutrients, will harm the seagrasses, coral reefs, and the benthic communities in the waters around Key West. Halloran read the initial petition prepared and filed in this proceeding, and he skimmed the Amended Petition specifically to determine the changes from the initial Petition.55/ He acknowledges that he does not completely recall the entire contents of the initial petition or the Amended Petition. Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Naja Girard D'Albissin, a member of the Board of Directors of Last Stand, appeared on behalf of Last Stand. D'Albissin testified that Last Stand currently has approximately 105 members. Last Stand's mission is to promote, preserve, and protect the quality of life in Key West and the Florida Keys, with particular emphasis on protecting the natural environment. Last Stand historically has engaged in environmental advocacy directed toward governmental entities and engaged in litigation opposing activities that its members believe would harm the natural environment. In July 2014, Last Stand's Board of Directors voted to challenge the Permit at Issue. Respondent DEP stipulated that 52 members of Last Stand spend time or reside in Monroe County, 50 members enjoy the waters and natural environment of the Florida Keys, and 50 members believe that their use and enjoyment of the natural environment and economic interests in Monroe County will be adversely affected by the Project. Last Stand tendered, for admission into evidence, affidavits of some of its members attesting to the substantial interests they contend will be injured by the Project. However, Last Stand had refused to allow Respondents to engage in discovery regarding these members' alleged substantial interests; accordingly, the undersigned did not allow these members to testify at the final hearing.56/ The affidavits were excluded from admission into evidence as unsupported hearsay. See § 120.57(1)(c), Fla. Stat. Entitlement to Permit at Issue KWRU met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permit at Issue by entering into evidence the applications and supporting materials for the Permit at Issue for the Project. Additionally, KWRU presented persuasive, competent, and substantial evidence beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate its entitlement to the Permit at Issue. Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding to demonstrate that the Project does not meet all applicable statutory and rule requirements. Furthermore, on rebuttal, KWRU and DEP thoroughly addressed and rebutted the grounds that Petitioners allege justify denial of the Permit at Issue. The persuasive evidence demonstrates that the Project meets all applicable statutory and rule requirements. Accordingly, KWRU is entitled to issuance of the Permit at Issue.
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 approving the issuance of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 15th day of January, 2016.
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 The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ·9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and 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 denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
Findings Of Fact This hearing was occasioned by the Respondent's denial of (an) environmental permit(s) requested by the Petitioner, Baker Cut Point Company, a corporation owned by James C. Dougherty. The Respondent has asserted permit jurisdiction pursuant to Chapters 253 and 403, Florida Statutes, and attending regulatory provisions of Chapter 17, Florida Administrative Code. The Petitioner requested a formal hearing to consider the matters in dispute, and that hearing was conducted on the dates indicated before and in keeping with Subsection 120.57(1), Florida Statutes. The Petitioner owns land in Monroe County, Florida, identified as Buccaneer Point. This parcel of land is a peninsula which extends from the west side of Key Largo, Florida, and has as its essential features two interior lakes and well-defined mangrove stands to include red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinans). This parcel of land is bordered on the north by Buttonwood Sound and on the south by Florida Bay, navigable water bodies. Respondent's Exhibit No. 1, admitted into evidence, depicts the present condition of the parcel of land, with the exception of proposals involved in the permit review process, which are the subject of this Recommended Order and the companion case of James C. Dougherty v. State of Florida, Department of Environmental Regulation, DOAH Case No. 80-1055. At present, the two lakes do not offer normal access to Buttonwood Sound and Florida Bay, nor do they offer an interior water connection between the two lakes. The southernmost lake does have intermittent water exchange with Florida Bay. Those lakes are identified as North Lake and South Lake. The Petitioner had initially applied for permission to place 75,000 cubic yards of clean limerock fill at the project site and indicated that the fill would be placed landward of the mean high water line. That fill would have covered approximately 17.56 acres in the residential subdivision. The application was made on October 27, 1978. See Petitioner's Exhibit No. 20, admitted into evidence. The Respondent issued an Intent to Deny the permit connected with that request, and that Intent to Deny was issued on April 3, 1980, asserting permit jurisdiction by the Respondent under the provisions of Chapters 253 and 403, Florida Statutes. See Petitioner's Exhibit No. 5, admitted into evidence. The Petitioner modified the permit application effective April 24, 1981. Under the terms of the revised permit application, the Petitioner would place limerock fill over 5.7 acres, including mangroves, constituting approximately 30,000 cubic yards of fill. Additionally, the applicant modified the permit request to include filling the exterior rim of the interior lakes to create a littoral zone and the placement of a berm at that exterior. See Petitioner's Exhibit No. 6, admitted into evidence. The project, as contemplated, allows for a preserve area of mangroves along the northern end of the peninsula and also employs a "pad" concept to preserve the mangrove acreage where fill is to be placed. Those "pads" for houses would be bordered by six- inch dikes to divert upland runoff which might find its way into the interior lakes on the property. The fill material to be placed in those areas, other than the lakes, would be placed above or landward of the line of mean high water, as determined by the mean high water line survey found in Petitioner's Exhibit No. 1, admitted into evidence, dating from December, 1975, and whose methodology was approved on January 15, 1980, for purposes of Chapter 177, Florida Statutes, through the offices of the State of Florida, Department of Natural Resources. This factual determination is also borne out by a review of the Petitioner's Exhibit No. 6, in pari materia with Respondent's Exhibit No. 1 and Petitioner's Exhibit No. 1. As the lakes are now constituted, the placement of the limerock fill at the fringe of the lakes would not be waterward of the line of mean high water; however, when the placement of this fill material is considered in view of the permit request made in Division of Administrative Hearings' Case No. 80-1055, which permit request attempts to open up the lakes by direct water connection to the aforementioned navigable water bodies, then the placement of the fill would be below the line of mean high water. See Petitioner's Exhibit No. 6. Therefore, treatment of the placement of fill for purposes of this case will be considered on a basis that the lakes remain landlocked and the matter of the placement of this fill will be a matter assumed in the Division of Administrative Hearings' Case No. 80-1055, dealing with an attempt to open those lakes by direct water connection to navigable waters of the State. Although the mangrove areas to be filled by the project are landward of the mean high water line, those mangroves are inundated by water at times and considered to be "submerged lands" adjacent to the State water bodies, Buttonwood Sound and Florida Bay. If the mangroves are removed, part of the ecosystem's ability to filter sediments and nutrients contained in stormwater runoff of adjacent upland areas and from tidal flows will be destroyed and will affect water quality considerations for adjacent open bay estuarine or marine systems. The extensive root system of the mangroves and associated vegetation assist in stabilization of estuarine shoreline sediments and attenuation of storm generated tides. Even though some of the mangroves in the proposed area for fill are in a stressed condition, i.e., a condition in which their growth is stunted, if left alone, those mangroves would flourish and provide the same water quality functions as healthy mangroves. A biologist presented by the Petitioner identified the number of mangrove species, the number of mangroves, the diameter of those mangroves and the height of canopies of the mangroves in areas of the project site. These items were summarized through the use of the Holdridge Complexity Index, which measures structural complexity of mangroves within the sites. See Petitioner's Exhibit No. 17, admitted into evidence. In particular, four such station pairs were studied and the pairs were constituted of a station within the basin of the mangrove stand and a station at the fringe of the mangroves. There was a site at each proposed waterway and a site at the northeastern and western points of the peninsula, the area of the proposed mangrove preserve. See Petitioner's Exhibit No. 6, admitted into evidence. This study indicated that fringe mangroves are more developed than the ones in the heart of the basins. This study also revealed that the upland fill would remove primarily black mangroves. The removal of the mangroves and placement of fill would be in furtherance of the creation of twelve to fourteen residential lots, the majority of which would be located on Florida Bay. See Petitioner's Exhibit No. 6. In furtherance of the intention to offer these lots for sale, the Petitioner has sold one of the lots on Florida Bay for $95,000 on or about June 2, 1981. If the proposed utilization of the property in question was not allowed, the Petitioner stands to lose money in his investment in the face of preliminary developmental expenses which, at present, exceed monetary returns from the sale of lots. The area in which the upland fill would be placed is porous limerock, which allows water to seep through and be transported underground to adjoining water bodies, both on site and off site, in addition to the runoff from the upland areas. To address these concerns, the Petitioner has planned for the installation of dikes in the various upland areas which are to be built to prohibit drainage into the remaining mangrove areas and ambient waters. The littoral zones around the edge of the inland lakes would promote marine and wetland vegetation which assists in the function of filtration of sediments and nutrients. On the subject of water quality considerations, the use of the clean limerock fill, which is calcium carbonate, would tend to stabilize seawater at its natural PH level, thereby allowing the specific conductance (measurement of salinity) of the lakes and surrounding ambient waters to remain in a natural state in terms of direct effects of the fill material. On the subject of contamination of water by copper, normally, seawater contains 3 micrograms per liter of copper. In a project such as this one, it is not expected that higher amounts of copper would be found, and the limerock contains only trace amounts of copper, if any. Specific testing done at the project site reveals less than 1 microgram per liter of copper in the North Lake and 4 micrograms per liter in the South Lake. Therefore, the activity is not expected to increase the levels of copper to the extent that measurements exceed 500 micrograms per liter in either the lakes or surrounding waters. In dealing with the substance of zinc, seawater contains as much as 30 micrograms per liter of zinc. Sampling by the Petitioner indicated 2 micrograms per liter in the North Lake and 8 micrograms per liter in the South Lake of that substance. The activity and the development is not expected to increase the levels of zinc to the extent that measurements exceed 1,000 micrograms per liter in either the lakes or surrounding waters. In sampling for lead content, the samples revealed less than 50 micrograms per liter of lead and the placement of limerock fill will not cause the amounts of lead in the lakes and surrounding waters to exceed 50 micrograms per liter. Testing for phenolic compounds at the site revealed that these materials were below established standards of the Respondent, and it is not expected that those standards will be exceeded through activities proposed in this permit process. The testing for oils and greases indicated less than 1 milligram per liter of oils and greases, which is below the State's standard of 15 milligrams per liter, and the activities proposed at the project site are not anticipated to exceed 15 milligrams per liter of oils and greases. Normal PH for coastal waters is 6 to 8.5, and the PH levels of the lakes and ambient waters in the area were in the range of 8, except for measurements done in the winter at the North Lake, where they were shown to be 7.5. The placement of limerock fill will not cause an imbalance in the pH readings. The activity as proposed will not add substances which are created by industrial or agricultural means or cause other discharges, colors or odors, or otherwise promote a nuisance condition in the ambient waters or the lakes. Measurement was made to toxic materials in the way of synthetics, organics or heavy metals. Those tests in the lakes and ambient waters showed heavy metals to be at low levels. There were no sources revealed of synthetics or organics. (The calcium carbonate found in the limerock fill would assist in breaking down lawn pesticides into phosphate.) In summary, the filling, as proposed, is not expected to promote the introduction of toxic substances into the lakes or surrounding waters. The placement of the clean limerock fill in the upland area is not expected to cause problems with turbidity in the lakes or ambient waters, which turbidity would exceed 50 Jackson Units above background. The filling will not affect dissolved, oxygen levels of the surrounding waters. Biochemical oxygen demand, the measurement of demand for oxygen of organic and chemical materials in the water, will not be influenced by the placement of the clean limerock fill related to surrounding waters. The limerock fill is not expected to introduce other oxygen demanding materials into the subject waters, such that dissolved oxygen levels would be lowered by BOD loading. There will be no problem with dissolved solids, in this instance, salts, due to the fact that calcium carbonate fill would not affect the dissolved solids in the ambient waters or in the lakes. Coastal water PH normally measures 6 to 8.5 and PH for open waters in the range of 1. Placement of calcium carbonate fill on the uplands would not cause the PH in the Class II waters in Everglades National Park, which is 300 feet east of Baker Cut Point, to vary above or below normal levels for either coastal or open waters. In addition, there would be no discharge of toxic substances from the calcium carbonate fill into the Class II waters herein described. Tests conducted in the vicinity of homesites utilizing septic tanks, and specifically as sampled in waters adjacent to Buccaneer Point and the subject lakes in a development known as Private Park and Buttonwood Sound , indicated less than one fecal coliform bacterium per 100 milliliters. See Petitioner's Exhibit No. 14, admitted into evidence. Anticipated setbacks for additional septic tanks to be associated with the buildup at the project site would be in keeping with the requirements of Monroe County, Florida, and harmful septic tank leachate is not expected to be a problem.
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 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.
