Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Findings Of Fact On July 5, 1978, Gulfside applied to DER for the issuance of a permit to operate a wastewater treatment plant on property owned by it on Perdido Key in Escambia County, Florida. The proposed plant is designed to serve a condominium complex consisting of 64 units, with the expectation that 350 gallons of water per day per unit will be discharged into the system, thus requiring a minimum plant capacity of 22,400 gallons per day. The plant described in the application has a capacity to handle 24,000 gallons per day. The proposed plant will use an extended aeration process whereby effluent is routed from the individual units through a filter within the proposed plant and then discharged into two percolation ponds associated with the facility. The plant is designed to remove 90 percent of B.O.D. and suspended solids. In addition, the plant is designed with duplex blowers and pumps to insure continued operation in the event of failure of one of the units. An emergency generator is included to provide back-up power for the entire plant, including blowers, pumps and chlorinators. Perdido Key, where the proposed plant is to be located, is a barrier island located off the coast of Escambia County, Florida, near the Florida- Alabama border. There is substantial residential development presently on Perdido Key, but no central sewer system exists to service the area. Currently, only septic tanks and package sewer plants are available for waste treatment purposes on the island. Adjacent to Perdido Key is Old River, which has been classified a Class III water. Soils on Perdido Key are primarily sandy, and as a result, have a high percolation rate. The problem of high percolation rate through the soils of Perdido Key was adequately addressed by Gulfside in the design of percolation ponds associated with the proposed plant. The two percolation ponds are designed to be located at a minimum of four feet elevation above maximum high ground water level. In fact, during DER's review of this application, Gulfside agreed to raise the bottom elevation of these percolation ponds in response to a concern regarding their initial location in close proximity to the water table. The problem of the expected fast percolation rate was addressed in designing the size of these percolation ponds, and also taken into consideration in designing the method of distributing effluent across the bottom surface of the ponds. With regard to the latter consideration, initial design of the project contemplated a single point for discharge of effluent into each percolation pond. However, Gulfside has agreed to redesign these percolation ponds in such a fashion to discharge effluent more evenly throughout the bottom area of the ponds too combat the problem of the excess percolation rate. The proposed percolation ponds are designed with surface areas in excess of 15,000 square feet. The ponds were initially designed utilizing a six-to-one slope, which would have given twice the bottom surface area of the three-to-one slope eventually required by DER in the process of reviewing the application. The three-to-one slope shown in the plans and specifications results in a bottom surface area of 2,974 square feet. However, the engineering report submitted with the application indicates that percolation ponds will have a bottom surface area of 4,480 square feet. From the evidence, it would appear appropriate for the ponds to have a minimum bottom surface area of 4,480 square feet. From the evidence, this problem can easily be rectified by raising the bottom elevation of the percolation ponds by approximately one foot. This requirement should be imposed as a condition to the granting of the requested permit. The proposed plant, although designed to remove 90 percent of B.O.D. and suspended solids, is not designed to remove nutrients from the effluent. However, the evidence establishes that these nutrients. Will be removed by a combination of filtration through soil substrata and biological action in the percolation ponds. Gulfside has also agreed to install a spartina marsh waterward of the percolation ponds to act as a final nutrient scrubber. The system design is reasonably calculated to assure removal of harmful quantities of nutrients, and no competent evidence was adduced to indicate that the system design was not sufficient for this purpose. Thus, although the treatment plant is proposed to be located only 50 feet from Old River, there is no indication that it will, in fact, result in any adverse impacts to that water body. In addition, DER has no rules or guidelines regulating distances from which package sewer plants, such as that proposed in this application, should be located from bodies of water such as Old River. It should be noted here that the application which is the subject of this proceeding is solely for the purpose of construction of the proposed facility. DER has imposed a permit condition requiring an initial four months operation for appropriate testing to determine compliance with the rules and regulations promulgated by DER before issuance of an operation permit. If testing demonstrates noncompliance with DER's rules and regulations, the operating permit for the facility can be denied. Testimony adduced at the hearing established that members of Petitioner, Southest Escambia Improvement Association, Inc., own property in the vicinity of the proposed facility, and that they utilize waters surrounding Perdido Key for sailing, swimming, crabbing and other recreational uses. Both Petitioner and Gulfside have submitted Proposed Findings of Fact. Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4 and 8 have been substantially adopted in this Recommended Order. Gulfside's Proposed Findings of Fact numbered 1 through 5 have also been substantially adopted in this Recommended Order. To the extent that Proposed Findings of Fact submitted by either Petitioner or Gulfside are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues under consideration in this cause, or as not having been supported by the evidence.
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 to be determined in this case is whether the Administrative Order issued by DEP on December 23, 2014, is a reasonable exercise of its enforcement authority.
Findings Of Fact Parties FPL is a subsidiary of NextEra Energy. It is a regulated Florida Utility providing electric service to 4.7 million customers in 35 counties. FPL owns and operates the Turkey Point Power Plant, which includes a cooling canal system (“CCS”) that is the subject of the AO at issue in this proceeding. DEP is the state agency charged with administering the Florida Electric Power Plant Siting Act (“PPSA”), chapter 403, Part II, Florida Statutes. DEP has the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules adopted and promulgated by it. § 403.061, Fla. Stat. (2015). ACI is a Florida corporation and the owner of 2,598 acres of land in southeast Miami-Dade County approximately four miles west of the Turkey Point CCS. ACI is engaged in agriculture and limerock mining on the land. ACI withdraws and uses water from the Biscayne Aquifer pursuant to two SFWMD water use permits. ACI also has a Life- of-the-Mine Environmental Resource Permit issued by DEP for its mining activities. The Life-of-the-Mine permit requires that mining be terminated if monitoring data indicate the occurrence of chloride concentrations greater than 250 milligrams per liter (“mg/L”) in the mine pit. The City of Miami is a municipal corporation located about 25-miles north of Turkey Point. The City purchases water from Miami-Dade County, which withdraws the water from the Biscayne Aquifer. Turkey Point FPL’s Turkey Point property covers approximately 9,400 acres in unincorporated Miami-Dade County, along the coastline adjacent to Biscayne Bay. Five electrical generating units were built at Turkey Point. Units 1 and 2 were built in the 1960s. Unit 2 ceased operating in 2010. Units 3 and 4 are Florida’s first nuclear generating units, which FPL constructed in the 1970s. Unit 5 is a natural gas combined cycle generating unit brought into service in 2007. Units 1 through 4 pre-date the PPSA and were not certified when they were built. However, Units 3 and 4 were certified pursuant to the PPSA in 2008 when FPL applied to increase their power output, referred to as an “uprate.” Unit 5 was built after the PPSA and was certified under the Act. The CCS The Turkey Point CCS is a 5,900-acre network of canals, which provides a heat removal function for Units 1, 3, and 4, and receives cooling tower blowdown from Unit 5. FPL constructed the CCS pursuant to satisfy a 1971 consent judgment with the U.S. Department of Justice which required FPL to terminate its direct discharges of heated water into Biscayne Bay. The CCS is not a certified facility under the PPSA, but it is an “associated facility,” which means it directly supports the operation of the power plant. The CCS functions like a radiator, using evaporation, convective heat transfer, and radiated heat loss to lower the water temperature. When cooling water enters the plant, heat is transferred to the water by flow-through heat exchangers and then discharged to the “top” or northeast corner of the CCS. Circulating water pumps provide counter-clockwise flow of water from the discharge point, down (south) through the 32 westernmost canals, across the southern end of the CCS, and then back up the seven easternmost canals to the power plant intake. The full circuit through the CCS from discharge to intake takes about 48 hours and results in a reduction in water temperature of about 10 to 15 degrees Fahrenheit. The CCS canals are unlined, so they have a direct connection to the groundwater. Makeup water for the CCS to replace water lost by evaporation and seepage comes from process water, rainfall, stormwater runoff, and groundwater infiltration. When the CCS was first constructed, FPL and SFWMD’s predecessor, the Central and Southern Florida Flood Control District, entered into an agreement to address the operation and management of the CCS. The agreement has been updated from time to time. The original agreement and updates called for monitoring the potential impacts of the CCS. Operation of the CCS is also subject to a combined state industrial wastewater permit and National Pollution Discharge Elimination System (“NPDES”) permit administered by DEP. The industrial wastewater/NPDES permit is incorporated into the Conditions of Certification. Hypersaline Conditions The original salinity levels in the CCS were probably the same as Biscayne Bay. However, because the salt in saltwater is left behind when the water evaporates, and higher water temperature causes more evaporation, the water in the CCS becomes saltier. Salinity levels in the CCS are also affected by rainfall, air temperature, the volume of flow from the power plant, and the rate of water circulation. In 2008, when FPL applied for certification of the uprate of Units 3 and 4, it reported average salinity to be 50 to 60 Practical Salinity Units (“PSU”). This is a “hypersaline” condition, which means the salinity level is higher than is typical for seawater, which is about 35 PSU. Higher salinity makes water denser, so the hypersaline water in the CCS sinks beneath the canals and to the bottom of the Biscayne Aquifer, which is about 90 feet beneath the CCS. At this depth, there is a confining layer that separates the Biscayne Aquifer from the deeper Upper Floridan Aquifer. The confining layer stops the downward movement of the hypersaline “plume” and it spreads out in all directions. FPL estimated that the average daily loading of salt moving from the CCS into the Biscayne Aquifer is 600,000 pounds per day. In late 2013, salinity levels in the CCS began to spike, reaching a high of 92 PSU in the summer of 2014. FPL believes the salinity spikes in recent years are attributable in part to lower than normal rainfall and to higher turbidity in the CCS caused by algal blooms. Reductions in flow and circulation during this period associated with the retirement of Unit 2 and the uprate of Units 3 and 4 could also have contributed to increased temperatures in the CCS, more evaporation, and higher salinity. ACI presented evidence suggesting that the uprate of Units 3 and 4 could be the primary cause of recent, higher water temperatures and higher salinity. The analyses that have been conducted to date are not comprehensive or meticulous enough to eliminate reasonable disagreement about the relative influence of the factors that affect salinity in the CCS. FPL has taken action to reduce salinity within the CCS by adding stormwater from the L-31E Canal (pursuant to emergency orders), adding water from shallow saline water wells, and removing sediment build-up in the canals to improve flow. These actions, combined with more normal rainfall, have decreased salinity levels in the CCS to about 45 PSU at the time of the final hearing. Saltwater Intrusion Historical data show that when the CCS was constructed in the 1970s, saltwater had already intruded inland along the coast due to water withdrawals, drainage and flood control structures, and other human activities. The “front” or westernmost line of saltwater intrusion is referred to as the saline water interface. More specifically, the saline water interface is where groundwater with total dissolved solids (“TDS”) of 10,000 mg/L or greater meets groundwater with a lower chloride concentration. DEP classifies groundwater with a TDS concentration less than 10,000 mg/L as G-II groundwater, and groundwater with a TDS concentration equal to or greater than 10,000 mg/L as G-III groundwater, so the saline water interface can be described as the interface between Class G-II groundwater and Class G-III groundwater. In the 1980s, the saline water interface was just west of the interceptor ditch, which runs generally along the western boundary of the CCS. The interceptor ditch was installed when the CCS was first constructed as a means to prevent saline waters from the CCS from moving west of the ditch. Now, the saline water interface is four or five miles west of the CCS, and it is still moving west. The groundwater that comes from the CCS can be identified by its tritium content because tritium occurs in greater concentrations in CCS process water than occurs naturally in groundwater. CCS water has been detected four miles west of the CCS. Saline waters from the CCS have been detected northwest of the CCS, moving in the direction of Miami-Dade County’s public water supply wellfields. The hypersaline plume from the CCS is pushing the saline water interface further west. Respondents identified factors that contributed to the saltwater intrusion that occurred before the CCS was constructed. However, while saltwater intrusion has stabilized in other parts of Miami-Dade County, it continues to worsen in the area west of the CCS. Respondents made no effort to show how any factor other than the CCS is currently contributing to the continuing westward movement of the saline water interface in this area of the County. The preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saline water interface. Fresh groundwater in the Biscayne Aquifer in southeast Miami-Dade County is an important natural resource that supports marsh wetland communities and is utilized by numerous existing legal water uses including irrigation, domestic self-supply, and public water supply. The Biscayne Aquifer is the main source of potable water in Miami-Dade County and is designated by the federal government as a sole source aquifer under the Safe Drinking Water Act. Saltwater intrusion into the area west of the CCS is reducing the amount of fresh groundwater in the Biscayne Aquifer available for natural resources and water uses. Water Quality Violations At the final hearing, a DEP administrator testified that DEP was unable to identify a specific violation of state groundwater or surface water quality standards attributable to the CCS, but DEP’s position cannot be reconciled with the undisputed evidence that the CCS has a groundwater discharge of hypersaline water that is contributing to saltwater intrusion. Florida Administrative Code Rule 62-520.400, entitled “Minimum Criteria for Ground Water,” prohibits a discharge in concentrations that “impair the reasonable and beneficial use of adjacent waters.” Saltwater intrusion into the area west of the CCS is impairing the reasonable and beneficial use of adjacent G-II groundwater and, therefore, is a violation of the minimum criteria for groundwater in rule 62-520.400. In addition, sodium levels detected in monitoring wells west of the CCS and beyond FPL’s zone of discharge are many times greater than the applicable G-II groundwater standard for sodium. The preponderance of the evidence shows that the CCS is contributing to a violation of the sodium standard. Agency Response The 2008 Conditions of Certification included a Section X, entitled “Surface Water, Ground Water, Ecological Monitoring,” which, among other things, required FPL and SFWMD to execute a Fifth Supplemental Agreement regarding the operation and management of the CCS. New monitoring was required and FPL was to “detect changes in the quantity and quality of surface and ground water over time due to the cooling canal system.” Section X.D. of the Conditions of Certification provides in pertinent part: If the DEP in consultation with SFWMD and [Miami-Dade County Department of Environmental Resources Management] determines that the pre- and post-Uprate monitoring data: is insufficient to evaluate changes as a result of this project; indicates harm or potential harm to the waters of the State including ecological resources; exceeds State or County water quality standards; or is inconsistent with the goals and objectives of the CERP Biscayne Bay Coastal Wetlands Project, then additional measures, including enhanced monitoring and/or modeling, shall be required to evaluate or to abate such impacts. Additional measures include but are not limited to: * * * 3. operational changes in the cooling canal system to reduce any such impacts; DEP determined that the monitoring data indicates harm to waters of the State because of the contribution of CCS waters to westward movement of the saline water interface. Under the procedures established in the Conditions of Certification, this determination triggered the requirement for “additional measures” to require FPL to “evaluate or abate” the impacts. Pursuant to the Conditions of Certification, a Fifth Supplemental Agreement was executed by FPL and SFWMD, which, among other things, requires FPL to operate the interceptor ditch to restrict movement of saline water from the CCS westward of Levee 31E “to those amounts which would occur without the existence of the cooling canal system.” The agreement provides that if the District determines that the interceptor ditch is ineffective, FPL and the District shall consult to identify measures to “mitigate, abate or remediate” impacts from the CCS and to promptly implement those approved measures. SFWMD determined that the interceptor ditch is ineffective in preventing saline waters from the CCS in deeper zones of the Biscayne Aquifer from moving west of the ditch, which triggered the requirement of the Fifth Supplemental Agreement for FPL to mitigate, abate, or remediate the impacts. Following consultation between DEP and SFWMD, the agencies decided that, rather than both agencies responding to address the harm caused by the CCS, DEP would take action. DEP then issued the AO for that purpose. The AO The AO begins with 36 Findings of Fact, many of which are undisputed background facts about the history of Turkey Point and the CCS. Also undisputed is the statement in Finding of Fact 25 that “the CCS is one of the contributing factors in the western migration of CCS saline Water” and “the western migration of the saline water must be abated to prevent further harm to the waters of the state.” Findings of Fact 16-19 and 25 indicate there is insufficient information to identify the causes and relative contributions of factors affecting saltwater intrusion in the area west of the CCS. However, as found above, the preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saltwater interface. In the “Ordered” section of the AO, FPL is required to submit to DEP for approval a detailed CCS Salinity Management Plan. The AO explains that “[t]he primary goal of the Management Plan shall be to reduce the hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II (<10,000 mg/L TDS) groundwaters of the State.” The goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II groundwaters is to be demonstrated by two success criteria: (1) reducing and maintaining the average annual salinity of the CCS at a practical salinity of 34 within 4 years of the effective date of the Salinity Management Plan; and (2) decreasing salinity trends in four monitoring wells located near the CCS. Although the AO states that FPL’s proposal to withdraw 14 mgd from the Upper Florida Aquifer and discharge it into the CCS might accomplish the goal of the AO, the AO does not require implementation of this particular proposal. It is just one of the options that could be proposed by FPL in its Salinity Management Plan.1/ If the success criteria in the AO are achieved, hypersaline water will no longer sink beneath the CCS, the rate of saltwater intrusion will be slowed, and the existing hypersaline plume would begin to “freshen.” Petitioners’ Objections ACI and the City object to the AO because the success criteria do not prevent further harm to water resources. Maintaining salinity in the CCS to 34 PSU will not halt the western movement of the saline water interface. They also contend the AO is vague, forecloses salinity management options that could be effective, and authorizes FPL’s continued violation of water quality standards. For ACI, it doesn’t matter when the saline water interface will reach its property because, advancing in front of the saltwater interface (10,000 mg/L TDS) is a line of less salty water that is still “too salty” for ACI’s mining operations. Years before the saline water interface reaches ACI’s property, ACI’s mining operations will be disrupted by the arrival of groundwater with a chloride concentration at or above 250 mg/L.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Environmental Protection rescind the AO or amend it as described above. DONE AND ENTERED this 15th day of February, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 February, 2016.
The Issue The issues to be considered in this Recommended Order relate to an Administrative Complaint which the Petitioner filed against Respondent. In particular, the Administrative Complaint calls for the revocation of Respondent's certificate to conduct laboratory analyses for various microbiological parameters, select chemical tests and turbidity studies. This disciplinary action is in keeping with the State Public Water Laboratory Certification Program, Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, which relates to that same subject. These alleged violations are set forth in the Administrative Complaint and those allegations are further refined through the attachments to the Administrative Complaint. They deal with certain alleged failures on the part of the Respondent in performing tests, analyses, recording functions, provision of materials, tabulations, and retention of records. He is also accused of making false statements through documents dealing with certification. All of these acts are in violation of provisions of Chapter 10D-41, Florida Administrative Code, according to the complaint. (The details of the Administrative Complaint are discussed in the Conclusions of Law section of this Recommended Order.) WITNESSES AND EXHIBITS The list of witnesses, in order of their appearance, may be found in the index to transcript. The list of exhibits, page of their identification and receipt may be found in the index to transcript, with the exception of those exhibits upon which ruling on their admissibility was reserved. Those exhibits which were not admitted in the course of the hearing are discussed in the Conclusions of Law section of this Recommended Order.
Findings Of Fact In keeping with language in Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, Petitioner licensed Kamran Kahjeh- Noori, who does business as as Kahjeh-Noori Laboratory. The licensing was through a process of certification to allow Kahjeh-Noori to conduct water testing. In particular, the laboratory was certified in microbiology (membrane filters); microbiology (most probable number); chemistry, and those materials, arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver; chemistry (nitrates); chemistry (fluorides) and turbidity. Water testing laboratories test drinking water from community and non- community water distribution systems. At times relevant to this case, Respondent's laboratory performed microbiological and chemical tests of drinking water. On October 13, 1981, Petitioner filed an Administrative Complaint against the Respondent charging various violations related to Respondent's certification. The Respondent requested a Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on August 11, 1982. In connection with the aforementioned certification in the various categories which Respondent had applied for and been granted, Petitioner, through its employees, conducted surveys of the Kahjeh-Noori Laboratory on December 12, 1979; December 8, 1980, February 10 and 11, 1981, and June 9, 1981, to insure compliance with rules related to Respondent's certification. The inspection on December 12, 1979, revealed that the inhibitory residue test as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, had not been performed to demonstrate that the washing/rinsing processes provide glass free of toxic materials. This relates to microbiology. Respondent was made aware of this deficiency in writing and in responding to the statement of deficiencies, indicated that correction had been made or as Respondent stated that the correction had been "performed." A survey conducted by the Petitioner on December 8, 1980, revealed the same problem with the inhibitory residue test as had been described in the matters related to the December 12, 1979, visit, in that that test had not been performed in accordance with Rule 10D-41.55(6)(b)8., Florida Administrative Code. Respondent was again advised in writing of the deficiencies and in response to the deficiencies indicated that a correction had been "performed" on January 8, 1981. This response, as was the case in the December 12, 1979, incident, was a written response. A further survey was conducted on February 10 and 11, 1981, in which the laboratory was inspected and the problem with the inhibitory residue test, in that it was not performed, was discovered in the course of this inspection, again related to Rule 10D-41.55(6)(b)8., Florida Administrative Code. This statement of deficiencies or violation was made known in writing and in his written response, Respondent indicated "media have been ordered from FIFFCO and will be completed by week of 4/20/81." Finally, in an inspection on June 9, 1981, the problem with the inhibitory residue test, that is to say the fact that that test was not being performed to demonstrate that the washing/rinsing processes were providing glassware free of toxic material as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, was still observed in the inspection. The inhibitory residue test, which is designed to determine whether the washing of glassware is leaving residue on that container which might inhibit or enhance bacterial growth, was conducted subsequent to the last survey. In particular, it was conducted on June 17, 1981, and February 25, 1982, by an employee of the Respondent. The results of those tests may be found as Respondent's Exhibit Nos. 1 and 2. In the inspection of December 12, 1979, it was discovered by Petitioner that laboratory pure water had not been analyzed annually by the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code (microbiology). Respondent was made aware of this shortcoming by written notification and in replying to this deficiency, indicated that the matter had been "performed." Further inspection of the matter of laboratory pure water in the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code, was made during December 8, 1980, and a written notification was given to Respondent, indicating that this test had not been performed and requiring an explanation of that deficiency. In responding to the deficiency, Respondent indicated that it "had been analyzed only 2 parameters missing" and the date stated for the completion of that correction was January, 1981. The inspection of February 10 and 11, 1981, discovered the same difficulty on the topic of laboratory pure water, in that the water was found not to have been analyzed on an annual basis by the test for bacteriological properties as required by Rule 10D-41.55(6)(a)4., Florida Administrative Code. This violation or problem was made known to the Respondent by written communication and replying to the deficiencies, in writing, Respondent indicated that "water will be analyzed by end of April." The June 9, 1981, survey by the Petitioner of the Respondent's laboratory, established the same problem with testing related to laboratory pure water under the terms of Rule 10D-41.55(6)(a)4., Florida Administrative Code. Again written notification was made of this shortcoming. Subsequent to the inspection of June 9, 1981, and specifically on June 17, 1981, an employee of Respondent made the test required by Rule 10D- 41.55(6)(a)4., Florida Administrative Code, and the results of that test may be found in Respondent's Exhibit No. 2. The water tested was that water which had been used in the Respondent's laboratory as far back as May, 1981, the date of the initial employment of the employee conducting this test. The conclusion reached was that the water did not contain toxic substances. The survey of December 12, 1979, revealed that laboratory pure water had not been analyzed monthly for conductance, pH, chlorine residual and standard plate count as specified by Rule 10D-41.55(6)(a)5., Florida Administrative Code (microbiology). Surveys by the Petitioner of Respondent's laboratory conducted on December 8, 1980; February 10 and 11, 1981, and June 9, 1981, concerning Rule 10D-41.55(6)(a)5., Florida Administrative Code, revealed the same shortcomings on the matter of monthly analysis for conductance, pH, chlorine residual and standard plate count. The responses made to the written notification of the problems, which notification occurred following each survey, were the same as were related in the responses for violations of Rule 10D- 41.55(6)(a)4., Florida Administrative Code, discussed above. The inspection of Respondent's laboratory, by Petitioner's employee, which occurred on December 8, 1980, revealed that sample bottles were not being tested with lauryl tryptose broth as required by Rule 10D-41.55(6)(b)9., Florida Administrative Code (microbiology). This problem was announced to Respondent in writing. By written response, the Respondent indicated that this matter was "performed" on January 8, 1981. Further inspection of February 10 and 11, 1981, as conducted by Petitioner on Respondent's laboratory, revealed a lack of compliance with the rule related to testing of sample bottles with lauryl tryptose broth as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code. This deficiency was made known in writing from Petitioner to Respondent and in answering this shortcoming, Respondent indicated in writing that the matter was "completed," effective February 17, 1981. In the period beginning late December, 1980, through late May, 1981, some tests related to sample bottles by the lauryl tryptose broth technique were carried out by one of Respondent's employees; however, no record was kept. In the absence of that record, it was reported in the evaluation report of the June 9, 1981, survey, which report was made by Petitioner's employee, that the matter related to testing sample bottles with lauryl tryptose broth, as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code, was still a problem. Beginning June 13, 1981, written records were kept of bottles tested with lauryl tryptose broth, as may be seen through Respondent's Exhibit No. 4a, which is a record of those tests. That record reveals no growth of bacteria. The February 10 and 11, 1981, survey conducted by Petitioner's employee, revealed that Respondent's laboratory was not recording the time of water sample arrivals as specified by Rule 10D-41.55(5)(a)7., Florida Administrative Code (microbiology). This violation was made known to the Respondent in writing and in his written reply, Respondent indicated that the matter was being "performed" effective February 12, 1981. The inspection of June 9, 1981, conducted by Petitioner's employee found that Respondent and his laboratory personnel were still failing to record the time of sample arrival, as required by Rule 10D-41.55(5)(a)7., Florida Administrative Code. Petitioner had contended that Respondent, in his equipment, i.e., sample bottles with screw caps, had liners to those caps that could not withstand repeated sterilizations as required by Rule 10D-41.55(5)(a)6., Florida Administrative Code (microbiology). This notice of violation was made in the course of the June 9, 1981, survey conducted by Petitioner at Respondent's laboratory. The facts when considered do not reveal such a violation or problem. Moreover, the Respondent's laboratory used "whirlpacks" for purposes of collecting drinking water samples and that had been its process beginning June, 1980. During the June 9, 1981, survey, Petitioner discovered that the Respondent, in his laboratory operation, was not carrying out water sample incubations at 350 degrees Celsius +/- 0.5 degrees Celsius. This discovery in the June 9, 1951, survey is borne out by the record of temperature controls made by the Respondent in a period of April, May and June, 1981, prior to the inspection, and also following the inspection in June through December, 1981, Respondent's Exhibit Nos. 5a-c. This allegedly violates Standard Methods, 14th Edition, pages 916, 917, 918 and 931, and thereby contravenes Rule 10D- 41.55(4)(a), Florida Administrative Code (microbiology). Respondent admits that he had this text during pertinent times; however, this volume was not provided to the Hearing Officer. The inspection of December 8, 1980, conducted by Petitioner's employee, revealed that the Respondent, in his laboratory operation, was not using quality control charts or a tabulation of mean and standard deviation to document data validity of silver and nitrate analyses as required by Rule 10D- 41.56(5)(1), Florida Administrative Code (chemistry). This problem was made known to the Respondent in writing and in answering the deficiencies Respondent indicated that the matter had been "performed" effective January 8, 1981. During the course of the February 10 and 11, 1981, inspection, the same problem was observed with the quality control charts on the topic of tabulation of mean and standard deviation set forth in Rule 10D-41.56(5)(1), Florida Administrative Code. In response to this written notification of violation, Respondent replied in writing "corrected and copy was mailed 2/20/81" and indicated a completion date of 2/18/81. Although certain charts had been received by the Petitioner prior to the June 9, 1981, survey (Petitioner's Exhibit No. 9c), that survey still revealed that quality control charts on silver and nitrate analyses as required by Rule 10D-41.56(5)(1), Florida Administrative Code, were missing. Respondent ultimately submitted charts on silver and nitrate, Respondent's Exhibit Nos. 10 through 13. Those exhibits from the Respondent are flawed in that the measurements of precision and accuracy related to the chemical substances are identical and that degree of exactitude makes the results unreliable. (Accuracy describes whether an average of a group of identical samples represents a true value of those samples and precision describes whether the individual test results of several identical samples are similar.) In the June 9, 1981, survey, it was discovered that the raw data and calculations related to quality control charts for the substances arsenic, barium, cadmium, chromium, lead, mercury, selenium and fluoride analyses had not been retained by Respondent's laboratory as specified by Rule 10D-41.59(1)(f)2., Florida Administrative Code. Respondent has made statements in answering stated deficiencies found in paragraphs 5a through 5h of the Administrative Complaint which did not prove to be accurate. These circumstances are reported in the findings of fact related above. Tests of sample bottles performed using lauryl tryptose broth during the period late December, 1980, through May, 1981, were not always recorded as specified by Rule 10D-41.59, Florida Administrative Code, in that on some occasions no record was made of the test.
The Issue Whether the applicants own the property in question? Whether the project would comply with the criteria of the South Florida Water Management District contained in Basis of Review for Surface Water Management Systems, specifically Sections 3.1.3 and 3.2? Whether flood protection would be inadequate or septic tanks unsuitable or whether the public health and safety would be compromised or the ultimate purchasers be deprived of usage of the property due to inundation in violation of Chapter 373, Florida Statutes (1981), or Rule 40E-4.301(1), Florida Administrative Code?
Findings Of Fact Ms. Williamson and Messrs. Leggett and Collins hold in fee simple a triangular 117.24-acre parcel in Okeechobee County as tenants in common under a warranty deed executed in their favor by one W. C. Sherman. They propose to develop the property as a trailer park (complete with airstrip) large enough to accommodate 109 trailers. To this end, soil would be dug up from the center of the property and used to raise the elevation of the surrounding land above the 100-year floodplain. (T. 47) The applicants have a dredging permit from the Department of Environmental Regulation authorizing them to excavate 629,889 cubic yards. They are proposing to dig to a depth of 76 feet below ground. This would create an 18-acre body of water ("Poe's Lake") which would overflow a V-notched weir into a county canal. The county canal would take the water to C- 38, one of the large canals to which the Kissimmee River has been relegated, at a point about 18 miles upstream from Lake Okeechobee. Runoff would wash over residential lots and roadways; the site would be graded to assure drainage into Poe's Lake. The minimum road crest elevation would be 30 feet NGVD ("[a]round twenty-nine feet" T.52), as compared to the control elevation for surface waters of 28.5 feet NGVD. WATER QUALITY The developers plan septic tanks for wastewater treatment. At the close of all the evidence, counsel for the applicants stated that sanitary sewers could be installed instead. Respondents' Proposed Recommended Order, p. With all the housing units in use, at least 10,900 gallons of effluent would seep into the ground from the tanks daily. There would be some evapotranspiration, but all the chemicals dissolved in the effluent would eventually end up in the groundwater. During the dry season, septic tank effluent would cause mounding of the groundwater and some groundwater movement toward, and eventual seepage into, Poe's Lake. The eventual result would be eutrophication and the growth of algae or macrophytes on the surface of Poe's Lake. This would cause dissolved oxygen violations in Poe's Lake. Discharges from the lake would inevitably occur, aggravating the situation in C-38, which already experiences dissolved oxygen levels below 5.0 milligrams per liter in the rainy summer months. Some fraction of the nutrients in the effluent from the septic tanks would ultimately reach Lake Okeechobee itself. The sheer depth of the excavation would create another water quality problem. Under the anaerobic conditions that would obtain at the bottom of Poe's Lake, bacteria acting on naturally occurring sulfates would produce hydrogen sulfide, ammonia and various other reduced organic nitrogen compounds. These substances are toxic to human beings and would, in some indeterminate quantity, enter the groundwater from Poe's Lake. This would affect the taste and perhaps the potability of water from any well nearby. It would be "possible to design a better system where there would be nutrient removal and a greatly reduced probability of violation of the dissolved oxygen criterion and obviation of the potential for ground water contamination." (T. 200) Installation of a baffle on the weir would serve to prevent buoyant debris from entering surface waters of the state. BASIS OF REVIEW Official recognition was taken of the "Basis of Review for Surface Water Management Permit Applications Within the South Florid Water Management District," parts of which all parties agree pertain in the present proceedings. Among the criteria stated in this document are: 3.1.3 Waste and Wastewater Service - Potable water and wastewater facilities must be identified. The Applicant for a Surface Water Management Permit must provide information on how these services are to be provided. If wastewater disposal is accomplished on-site, additional information will normally be requested regarding separation of waste and storm systems. 3.2.1.4 Flood protection - Building floors shall be above the 100 year flood elevations, as determined from the most appropriate information, including Federal Flood Insurance Rate Maps. Both tidal flooding and the 100 year, 3 day storm event shall be considered in determining elevations. b. Commercial and industrial projects to be subdivided for sale are required to have installed by the permittee, as a minimum, the required water quality system for one inch of runoff detention or one half inch of runoff retention from the total developed site. State standards - Projects shall be designed so that discharges will meet State water quality standards, as set forth in Chapter 17-3, Retention/detention criteria - Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof . . . Wet detention volume shall be provided for the first inch of runoff from the developed project, or the total runoff from a 3-year, 1-hour rainfall event, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. 3.2.4.1 Discharge structures should include gratings for safety and maintenance purposes. The use of trash collection screens is desirable. Discharge structures shall include a "baffle" system to encourage discharge from the center of the water column rather than the top or bottom. 3.2.4.4.2 b. Control elevations should be no higher than 2 feet below the minimum road centerline elevation in the area served by the control device in order to protect the road subgrade. Simply detaining runoff before discharging it offsite will not insure that the water quality standards set forth in Chapter 17-3 will be met. Whether the standards are met depends on, among other things, the composition of the runoff. FWF'S INTEREST Among the purposes of the FWF, as stated in its charter, Shall be to further advance the cause of conservation in environmental protection, to perpetuate and conserve fish and wildlife, oil, water, clean air, other resources of the State and so manage the use of all natural resources, that this generation and posterity will receive the maximum benefit from the same. (T. 248-9) Four or five thousand Floridians belong to FWF. FWF members "make use" (T. 250) of the waters of Lake Okeechobee, the Kissimmee River and specifically of the waters in C-38. PROPOSED FINDINGS CONSIDERED The applicants and FWF filed post hearing memoranda and proposed recommended orders including proposed findings of fact which have been considered in preparation of the foregoing findings of fact. They have been adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny the pending application for surface water management permit. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1983. COPIES FURNISHED: Dennis J. Powers, Esquire Gunster, Yoakley, Criser & Stewart 400 South County Road Palm Beach 33480 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, Florida 33401 Irene Kennedy Quincey, Esquire 3301 Gun Club Road West Palm Beach, Florida 33406 Charles P. Houston, Esquire 324 Datura Street, Suite 106 West Palm Beach, Florida 33401
The Issue The ultimate issue to be addressed in this proceeding is whether the Applicants should be granted a dredge and fill permit. Petitioner contends that the Applicants have failed to provide reasonable assurances that the short-term and long-term effects of their proposed activities will not result in violations of the Department's water quality standards for both surface water and groundwater. The Applicants and the Department contend that reasonable assurances have been provided.
Findings Of Fact The Applicants are the owners of a 1,248-acre parcel of land located at the intersection of State Road 710 and State Road 711 in northern Palm Beach County, Florida. The Applicants are proposing to develop an industrial park known as "Palm Beach Park of Commerce" (PBPC). PBPC will provide sites for tenants to carry on various commercial and industrial activities. In order to prepare the site for development, the Applicants have designed a surface water management system. In order to develop the system, the Applicants must conduct dredging and filling activities in areas where the Department of Environmental Regulation has permitting jurisdiction. The Petitioner is an association of home owners within a single family residential development known as "Caloosa." The development is located to the southeast of the proposed PBPC. Surface and ground water flows from the PBPC site are toward Caloosa. Residents of Caloosa and members of the Petitioner are entirely dependent on private individual wells for their drinking water. The surficial aquifer is the only viable source of drinking water. The proposed PBPC surface water management system would allow water to drain from the site into an excavated canal which would essentially follow the perimeter of the site. The canal would discharge at the southeast corner of the site into the Caloosa Canal, which runs through the Caloosa residential development. The Caloosa Canal is designated as a Class III water body. The Caloosa Canal drains into the "C-18 Canal," which is maintained by the South Florida Water Management District. The point at which the Caloosa Canal discharges into the C-18 Canal is approximately 2.4 miles from the PBPC site. The C-18 Canal is designated as a Class I water body. The C-18 Canal ultimately discharges into the Loxahatchee River Basin, a Class II water body, which is located approximately 12.9 miles from the PBPC site. It is possible that during some periods of the year, water from the PBPC site would ultimately find its way to the Jonathan Dickinson park, where water has been designated as "outstanding Florida waters." It is approximately 13.2 miles from the PBPC site to the Jonathan Dickinson Park. The PBPC site is a high, marginal, stressed Everglades system. It is a prairie or pine flatwood area. During periods of heavy rainfall, water covers most of the site. During dry periods, there is standing water only in depressions. Approximately 200 acres of the site are inundated with water during a sufficient portion of the year to support predominantly wetland vegetation. Approximately 24 acres of the wetlands on the site are directly connected to drainage ditches that presently rim the site. The ditches are connected to the Caloosa Canal so that these 24 acres are ultimately connected through canal systems to the Loxahatchee River. These wetland areas, which will be hereafter referenced as "jurisdictional wetlands," are the only wetland areas other than the existing drainage ditches over which the Department of Environmental Regulation asserts jurisdiction under its Rule 17-4.28, Florida Administrative Code. As a part of its surface water management system, the Applicants propose to maintain 133.7 acres of the wetlands on the site in their natural condition. These wetland areas would be incorporated into the surface water management system so that surface water would flow into the wetlands, then through culverts or drainage ditches into the perimeter canal. The remaining wetlands on the site, including all of the "jurisdictional wetlands," would be filled. The wetlands on the PBPC site perform a significant water quality function. The wetlands serve as a filtration system. Wetland vegetation removes nutrients and turbidity from surface water before it is discharged into the canals and ultimately into the Loxahatchee River. The wetlands that the Applicants propose to preserve on the site would continue to perform that beneficial function. In order to mitigate the loss of the wetlands that would be filled, the Applicants propose to create approximately 85 acres of new wetland areas and to vegetate these areas. These artificially created wetlands, if properly constructed, vegetated and maintained, would perform the same beneficial functions as the natural wetland communities. The Applicants have proposed to introduce several safeguards into their water management system to assure that the quality of surface and ground water in the area will not be adversely impacted. The preservation of 133 acres of natural wetland areas and the creation of approximately 85 acres of artificial wetland areas is one of these safeguards. In addition, the surface water management system includes the creation of swales around water bodies so that the first one inch of stormwater runoff on the site will not drain directly into surface water bodies. By retaining the first one inch of runoff, pollutants contained in stormwater runoff will be retained on the site and will not enter surface or ground waters. Each commercial or industrial site at PBPC will be required to retain an additional one inch of stormwater runoff on the individual site. This will serve to filter pollutants out of stormwater runoff even before the runoff reaches the overall surface water management system in which one inch of runoff will also be retained on site. The Applicants have also agreed to establish a surface water quality management program to prohibit the discharge of any industrial waste into the surface water management system and to have the surface water management system maintained by the Northern Palm Beach Water Control District. There are further safeguards proposed by the Applicants. The Applicants have agreed to prohibit the most potentially hazardous industrial activities from being undertaken on the site. Applicants have also agreed to require each individual site plan to be reviewed by local government, the South Florida Water Management District, and the Department of Environmental Regulation so that potential water quality problems connected with site-specific uses can be identified and, if necessary, prohibited. The Applicants have agreed to establish an environmental liaison officer whose function will be to monitor all development on the site and report routinely to local government, the South Florida Water Management District, and the Department of Environmental Regulation regarding environmental issues. In order that any potential groundwater pollution can be detected and, if necessary, steps taken to remove pollutants from the groundwater, the Applicants have agreed to establish well- monitoring systems for the project as a whole and for individual sites. Individual site plans have not yet been formulated. It is not practical or possible to design water monitoring programs for the individual sites at this time. Once the nature of activities at a site are known, monitoring programs can be effectively set up and maintained. In the event that surface or ground water contamination occurs, it can be detected through monitoring programs, and the contaminants can be removed. The Applicants have provided reasonable assurance that the short-term and long-term effects of the construction of the PBPC water management system will not result in violations of the Department's water quality standards for surface or ground water. By use of turbidity screens during construction, short-term impacts will be negligible. Absent any construction on the site beyond the creation of the surface water management system, it is likely that the quality of water leaving the PBPC site will be as good or better than at present. Since the Applicants have not yet located tenants or made individual site plans for commercial and industrial activities within PBPC, it is not possible to determine if some specific activity in the future could operate to cause violations of the Department's water quality standards. In order that there be such assurances, the Applicants have agreed to subject individual site plans to review by local government, the South Florida Water Management District, and the Department of Environmental Regulation. In the event that a future tenant is not able to provide required assurances, the use can and should be prohibited, and can be prohibited by regulatory agencies as a condition of permits issued to the Applicants. Water quality violations presently occur in the Caloosa Canal and the C-18 Canal. The safeguards proposed by Applicants reasonably assure that the implementation of the proposed water management system will not exacerbate or cotribute to these violations. There is approximately an 11-square-mile area which drains into the Caloosa Canal through the outfall at the southeast corner of the PBPC site. The PBPC site constitutes approximately two square miles of this area. The remaining nine square miles are located to the north and west of the PBPC site. These off-site areas are undeveloped and have an ecology very similar to the presently undeveloped PBPC site. The evidence would not establish a finding that development of these off-site parcels together with development of the PBPC site would cumulatively result in water quality violations of surface or ground waters. The Applicants will be required to obtain permits to construct a wastewater treatment facility on the PBPC site. Whether any proposed wastewater treatment system will meet the standards of regulatory agencies would appropriately be considered in later proceedings. Similarly, individual tenants will, in some cases, be required to operate wastewater treatment systems that pretreat industrial waste before it is introduced into the system-wide wastewater treatment system or before it is otherwise removed from the site. These systems would also be subject to future permitting proceedings. Some of the potential activities that could be carried on by tenants at the PBPC involve the use of volatile organic compounds and other hazardous toxic substances. If proper techniques are not followed for the handling of such substances, or if some accident occurs, the substances could be introduced into the surface and ground waters. Review of each individual site plan and the establishing of systems for properly handling toxic substances can reduce the possibility of incidents occurring. Human frailties existing as they do, however, it is not unlikely that such an incident will occur. If such an incident occurs, it is vitally important that the contamination of surface or ground water be quickly detected and that steps be taken to remove the contaminant. The establishing of proper monitoring systems can reasonably assure that the contamination is identified. Techniques do exist for removing contaminants from surface and ground waters. Since individual tenants and site plans have not yet been established, it is not possible to make any finding as to whether any individual tenant or site plan might operate in such a manner as to cause violations of the Department's water quality standards. It is therefore appropriate that individual tenants and site plans be subjected to further review by appropriate regulatory agencies before they are permitted to operate on the PBPC site. The Applicants have agreed to such a review process. Since surface water flows into the Caloosa Canal can be controlled through the outfall structure at the southeast corner of the PBPC site, it appears practical to isolate any contaminant that might enter the surface water and to remove it. Groundwater flows in the aquifer lying below the PBPC site are very slow--less than one-tenth of one foot per day. Given such flow rates, it is likely that any contaminants that enter the groundwater can be detected and effectively removed. Even given the implementation of the best procedures for handling toxic substances, the best monitoring program for detecting accidental releases of the substances, and the best systems for removing the substances from surface and ground waters, there is some possibility that an accident could occur, that a contaminant would not be detected, and that violations of the Department's water quality standards could occur as a result in the Caloosa Canal or in the groundwater which underlies the Caloosa development and provides drinking water to residents there. The result of such an incident could have very serious impacts. The introduction of toxic substances into the surface waters could cause a substantial damage as far downstream as the Loxahatchee River Basin. Contamination of the groundwater could result in a loss of water supply to residents or in serious public health consequences. While such possibilities exist, they appear unlikely given the safeguards that have been proposed for PBPC. The Applicants do not propose to undertake any dredging or filling activities in any navigable waters.
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 issuing a permit to Caleffe Investment, Ltd., Worthington Enterprises, Inc., to conduct the dredging and filling activities proposed by the Applicants. To ensure that state water quality standards will not be violated, the conditions cited in the Department's Intent to Issue notice dated October 22, 1982, should be made a part of the permit. In addition, the following conditions should be made a part of the permit: All individual site plans within PBPC should be subject to the Department's permitting processes in accordance with Rule 17-4.28, Florida Administrative Code, and other provisions of Chapter 17, Florida Administrative Code, and Chapter 403, Florida Statutes, as may apply. The Applicants should be required to post bond in a sufficient amount to assure proper implementation and operation of monitoring systems for individual sites and to assure that adequate funds are available to remove and properly treat contaminants that might enter surface or ground waters as a result of accidents. RECOMMENDED this 19th day of May, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1983. COPIES FURNISHED: Randall E. Denker, Esquire Lehrman & Denker Post Office Box 1736 Tallahassee, Florida 32302 Dennis R. Erdley, Esquire Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Robert M. Rhodes, Esquire Terry E. Lewis, Esquire James Hauser, Esquire Messer, Rhodes & Vickers Post Office Box 1876 Tallahassee, Florida 32302 Alan J. Ciklin, Esquire Boose & Ciklin 8th Floor - The Concourse 2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Tracy Sharpe, Esquire Farish, Farish & Romani 316 First Street West Palm Beach, Florida 33402 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Liz Cloud, Chief Administrative Code Bureau Department of State The Capitol, Suite 1802 Tallahassee, Florida 32301 Carroll Webb, Esquire Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Findings Of Fact Petitioner, Kamran Khajeh-Noori, who does business as Khajeh-Noori Laboratory, transacts that business at 2742 North Florida Avenue, Tampa, Florida. Respondent, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government whose principal business is at 1323 Winewood Boulevard, Tallahassee, Florida. The Department of Health and Rehabilitative Services has promulgated a Rule 10D-41.60, Florida Administrative Code, which allows the revocation, suspension, limitation, annulment or denial of renewal of the certification of various laboratories based upon certain stated reasons. In particular, the rule states: Denial or Revocation of Certification. A laboratory certification may be denied, revoked, suspended, limited, annulled or renewal denied for any or all of the following reasons: Making false statements on an application or on any document associated with certification. Demonstrating incompetence or making consistent errors in analyses. Permitting unauthorized personnel to perform analyses. Falsifying the results of analyses. Failure to employ approved labora- tory methodology in the performance of analyses required by the Act. Failure to properly maintain facilities and equipment. Failure to properly report analytical test results or to maintain required records of test results. Failure to participate success- fully in the DHRS performance evaluation and/or quality control program. Violating or aiding and abetting in the violation of any provision of these regulations or the rules promulgated here- under. The stated specific authority for this rule is Section 403.863, Florida Statutes, and the rule purports to implement that same provision of law. Section 403.863, Florida Statutes, is part of the Florida Safe Drinking Water Act. Petitioner, through his laboratory, was engaged in the business of analyzing water samples prior to the enactment of the Florida Safe Drinking Water Act. Following that enactment and the adoption of certification rules by the Department, he received a certificate from HRS to continue the operation of his water testing laboratory. In keeping with the various provisions found in Chapter 10D-41, Florida Administrative Code, the Department of Health and Rehabilitative Services has conducted surveys of the Khajeh-Noori Laboratory and subsequent to those surveys has filed an Administrative Complaint under the authority of Rule 10D-41.60, Florida Administrative Code. This Administrative Complaint has been the subject of a formal hearing in State of Florida, Department of Health and Rehabilitative Services v. Kamran Khajeh-Noori d/b/a Khajeh-Noori Laboratory, DOAH Case No. 81- 2979. That hearing was held on the same date as the present matter, that is August 11, 1982. The possible outcome of that proceeding might lead to the revocation, suspension, or annulment of the certification granted Khajeh-Noori Laboratory, thereby prohibiting the performance of those activities allowed by his certificate.
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
Findings Of Fact Respondent is a well-drilling contractor, holding WWC License #7015. Ridge Properties, Inc., which is the developer of Sundance Ridge, hired Respondent to construct private water wells on lots as they were developed in preparation for the construction of residences. On December 5, 1991, Respondent prepared a completion report for a well that he constructed at lot 64 of Sundance Ridge. The report indicates that Respondent installed well casing to a depth of 63 feet, which was two feet into "hard brown rock," as described on the report. The report discloses that the static water table was encountered 78 feet below the top of the well casing. As indicated in the report, Respondent sent no cuttings to Petitioner for this well-drilling job. On April 24, 1992, Respondent prepared a completion report for a well that he constructed at lot 51 of Sundance Ridge. The report indicates that Respondent installed well casing to a depth of 67 feet, which was 12 feet into "bedrock," as described on the report. The report discloses that the static water level was encountered 76 feet below the top of the well casing. As indicated in the report, Respondent sent no cuttings to Petitioner for this well-drilling job. There is no completion report for the well that Respondent constructed at lot 62 of Sundance Ridge. However, based on information from the well tag, Respondent constructed this well on December 5, 1991, and its casing depth does not reach the static water level. There is no completion report for another well on Marshal Road that Respondent constructed for Shamrock Construction. However, Petitioner admits that Respondent has corrected any problems that may have existed regarding this well. The three wells that Respondent drilled for Ridge Properties, Inc. produced water with a substantial amount of particulate matter. The presence of particulate matter, which was largely sand, was attributable to the fact that Respondent failed to drive the well casings below the static water level in these three wells. Contrary to his claims, Respondent did not encounter chert in drilling these three wells or driving the casings for them. Chert is a dense consolidated mass of rock, often silica. It is more typically found in Alachua and Marion Counties than it is in the Sorrento area of Lake County, which is the location of these three wells. Respondent never repaired the three wells in question. Repair would have required driving the casing deeper until it extends below the static water table. Respondent never obtained a variance for driving the casings to a depth shallower than the depth of the static water level. On April 1, 1993, Petitioner issued warning notices for the three Sundance Ridge wells, plus the Shamrock Construction well. When Respondent failed to make the necessary repairs within the time allowed by the warning notices, Petitioner issued a Notice of Violation on August 13, 1993. The Notice of Violation alleges that the casings do not extend to or below the static water level in the four wells and that Respondent has received four warning notices over the "recommended repetitive total." The Notice of Violation seeks an administrative penalty of $2000, costs and attorneys' fees of $186.40, and correction of the violations within 30 days of entry of a final order and filing of completion reports within 15 additional days. Paragraph 15 of the Notice of Violation explains: This Notice of Violation (NOV) will become a Final Order of [Petitioner] and may be used in further disciplinary actions against your water well contractor's license if you do not comply with it, or do not timely request a hearing pursuant to Section 373.333, F.S., and Rule 17-531.400, F.A.C., as explained in this Notice of Rights. The Notice of Violation warns: [Petitioner] is not barred by the issuance of this NOV from maintaining an independent action in circuit court with respect to the alleged violations. Ten days after issuing the Notice of Violation, Petitioner issued a Technical Staff Report, which states that Respondent's water well contractor's license had been placed on six months' probation in 1991 and again in 1992. After Respondent completed repairs, the probationary status was removed in October 1992. The Technical Staff Report states that, since October 1992, Petitioner has cited Respondent for six additional violations of Chapter 40C-3. Two violations were reportedly "resolved." According to the report, Respondent "has attempted to correct the violations at the other four sites, but has been unable to drive the well casing any deeper.. The Technical Staff Report acknowledges that a Notice of Violation was mailed Respondent on August 13, 1993, due to noncompliance with the four warning notices. The Technical Staff Report mentions that Respondent has been issued 23 citations for violations of Chapter 40C-3, including 13 for not extending the casing to or below the static water level. The Technical Staff Report recommends that Respondent be placed on six months' suspension, during which time Respondent shall correct the deficient wells. If repaired by the end of the six months' suspension, then Respondent's license would be placed on six months' probation. During the term of probation, Respondent would be required to notify Petitioner's staff 48 hours in advance of beginning construction of any well so that staff could be present to ensure that the wells were lawfully constructed. The Technical Staff Report, which was mailed to Respondent on or about August 23, 1993, gives him an opportunity to request a formal hearing. On September 10, 1993, Respondent demanded a hearing by letter, which Petitioner received September 13. The demand references a "request for a formal hearing on notice of violation and order for corrective action," which is a reference to the Notice of Violation. The demand states that Respondent received notice of Petitioner's action by certified letter on "August 13, 1993." The demand adds: [Petitioner's] determination in the above matter can destroy [Respondent's] ability to earn a living in his profession, cause [Respondent] to lose his current employment, cause to continue extensive physical and emotional stress exerted on the above [Respondent] by [Petitioner], and cause the unjust ruination of his reputation in the community that he resides. Treating the demand for hearing as applicable to the Notice of Violation, but not the Technical Staff Report, Petitioner referred only the Notice of Violation to the Division of Administrative Hearings and immediately proceeded to suspend Respondent's license, based on his failure to file a separate demand for a hearing on the Technical Staff Report.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the St. Johns River Water Management District enter a final order suspending Respondent's license commencing from the effective date of the suspension imposed pursuant to the Technical Staff Report and ending six months thereafter, without regard to whether Respondent has repaired the three Sundance Ridge wells or ever repairs them. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 20, 1994. COPIES FURNISHED: Henry Dean Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Attorney Clare E. Gray St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 C. L. Hicks 1935 CR 470 W. Okahumpka, FL 34762
