Findings Of Fact The Petitioner is a special tax district created by special act of the Florida Legislature. Chapter 71-822, Laws of Florida. The district covers approximately seventy-two square miles in northern Palm Beach County and southern Martin County, Florida. Petitioner's purpose is to provide water, sewer, drainage and solid waste services within the district. In conformity with its powers, the Petitioner operates an advanced waste water treatment plant on property which it owns in northern Palm Beach County. Petitioner has secured appropriate permits from DER in order to construct and operate the treatment plant. The treatment plant is among the most advanced in southeastern Florida. It has a four million gallon daily capacity, which could be increased to an eight million gallon capacity. In treating waste water the plant utilizes filtration, disinfection, retention in a holding pond, and discharge into a remote off-site area. The present discharge system is to pump effluent from the retaining pond through a canal or drainage system to a recharge or discharge lake which is located approximately three miles north and west of the treatment plant. This is known as the western discharge system, and was installed at a cost of approximately one million dollars. Due to the large amounts of pumping activity, it is an expensive system to utilize. Through its instant application, the Petitioner is seeking a permit allowing it to discharge effluent on-site. Effluent would flow into percolation ponds that have already been constructed. Effluent would settle in the ponds, and eventually would percolate through the soil. This system would he less expensive to operate than the western discharge system. Petitioner is interested in experimenting with the amount of waste water treatment that can be obtained through action of vegetation in the percolation ponds upon the effluent. Such a natural system, if it operated effectively, could save the Petitioner additional money in treating waste water by reducing the need for chemical treatment. Petitioner's waste water treatment presently results in a discharge of effluent which within some parameters meets even drinking water standards. The Petitioner's system very effectively treats bio-chemical oxygen demand ("bod"), suspended solids, nitrogen, and phosphorus in the effluent. Reports have been submitted by the Petitioner to DER which indicate that the system does not meet DER's standards for advanced waste water treatment. Samples upon which these reports were based were taken at a point in the system before the effluent was subjected to the action of the retention pond and the subsequent bumping into the western discharge system. Samples taken beyond the retention pond indicate that DER's standards are met for "bed", suspended solids, total nitrogen, and total phosphorus. The Intervenor owns property adjacent to the Petitioner's waste water treatment plant. The Intervenor operates a well field and drinking water treatment plant on the property, and provides drinking water to residents of the Town of Jupiter and surrounding communities from the well field. The Intervenor acquired its treatment plant, and surrounding well fields from a private utility company. The Petitioner was aware of the well field when it purchased the property upon which it presently operates its waste water treatment plant. While the Petitioner's plant adequately treats waste water in terms of "bod", suspended solids, total nitrogen, and total phosphorus it does not treat the waste water for heavy metals, pesticides, or viruses. These are common elements found in waste water effluent in the south Florida area. The Petitioner's proposal is to discharge its effluent into on-site ponds. The effluent would then percolate into the ground. The retention ponds are located at a distance from 1200 to 1600 feet from the nearest of the Intervenor's wells. Water which percolates from these ponds would flow directly toward the wells, and would eventually find its way into the wells. The flow from the retention ponds to the wells would be increased due to the draw-down effect that the wells have on the surrounding water table. As water is drawn from the wells, the adjoining water table becomes depressed in the area of the wells, and water from the surrounding area flows more rapidly into the area of the wells. Heavy metals will not be filtered out as a result of retention or percolation. Heavy metals in the effluent would eventually find their way into the Intervenor's well fields. Estimates as to the amount of time that it would take for water from the percolation ponds to reach the wells varied from four months to six years. The longer estimate appears the more reasonable; however, the evidence is conclusive that eventually waters from the percolation ponds would reach the wells, and that heavy metals in the water would not be filtered out. The Petitioner proposes to obviate any problems with heavy metals reaching the well fields by operating testing wells between the percolation ponds and the well fields. If any heavy metals were detected in the ground water, Petitioner would again use the western discharge system rather than the percolation ponds. While this would prevent increased contamination of the wells, contamination that had already reached the test wells would reach the Intervenor's wells. It was suggested that the percolation ponds could be drawn down in order to reverse the flow of ground water back into the percolation ponds, thence to be pumped through the western discharge system. In order to accomplish this, however, the percolation ponds would have to be more than forty feet deep, which they are not. The effect of heavy metals intruding into the Intervenor's water supply could be to increase the cost of treatment, or to render the wells unfit for use. Uncontaminated drinking water supplies are rare in the northern Palm Beach County area, and the expense of finding a new water supply is difficult to calculate.
The Issue The issues set forth in DOAH Case No. 84-3810 concern the question of whether the State of Florida, Department of Environmental Regulation (DER) should issue a permit to Homer Smith d/b/a Homer Smith Seafood (Homer Smith) to construct a wastewater treatment facility which is constituted of a screening mechanism, dissolved air flotation treatment system, sludge drying bed, pumping station and subaqueous pipeline. In the related action, DOAH Case No. 84-3811, the question is raised whether DER should issue a dredge and fill permit to Homer Smith for the installation of the aforementioned pipeline along submerged lands in Trout Creek, Palmo Cove and the St. Johns River.
Findings Of Fact Introduction and Background In 1982, Homer Smith, under the name of Homer Smith Seafood, established a calico scallop processing facility in the vicinity of the intersection of State Road 13 and Trout Creek in St. Johns County, Florida. From that point forward, Smith has owned and operated the processing plant. His plant adjoins Trout Creek, which is a tributary to the St. Johns River. Both Trout Creek and the St. Johns River are tidally influenced waters that are classified as Class III surface waters under Rule 17-3.161, Florida Administrative Code. The processing undertaken by Smith's operation at Trout Creek contemplates the preparation of the scallops for human consumption. In particular, it involves the purchase of calico scallops from Port Canaveral, Florida, after which the scallops are transported by refrigerated trucks to the processing plant. They are then unloaded into metal hoppers and directed into rotating tumblers which separate out the scallops from sand, mud and other extraneous material. The scallops are placed in a steam tumbler that removes the shells and then passed through a flow tank that washes away sand, grit and shell particles. The scallops are next passed through eviscerators. These eviscerators are long tubes of aluminum with roughened surfaces that pull the viscera off of the scallops. The detached scallops are then sent along a conveyor belt, with scallops in need of further cleaning being picked out and sent to a second eviscerator. The eviscerated scallops are then chilled and packed for marketing. It is the viscera and wastewater associated with this material that is the subject of permitting. Homer Smith is one of about six automated scallop processing plants located in Florida. Two other plants are within St. Johns County, on the San Sebastian River in St. Augustine, Florida. Three other plants are located in Port Canaveral, Florida. When Smith commenced his operation of the scallop processing plant in the summer of 1982, he discharged the scallop processing wastewater into an area described as a swamp with an associated canal which connected to Trout Creek. By the fall of 1982, Smith had been told by representatives of the Department of Environmental Regulation that to operate his facility with the discharge would require a permit(s) from DER. At the time of this discussion, automatic scallop processing was an industry for which appropriate wastewater treatment alternatives had not been specifically identified by the Department of Environmental Regulation or the United States Environmental Protection Agency. This was and continues to be the case as it relates to the promulgation of technology-based effluent limitations designed for calico scallop processors. This circumstance is unlike the situation for most other industries for which DER has established technology-based effluent limitations. To rectify this situation, Florida Laws 85-231 at Section 403.0861, Florida Statutes, requires DER to promulgate technology-based effluent limitations for calico scallop processors by December 1986. In the interim, consideration of any permits that might be afforded the calico scallop processors by the exercise of DER's regulatory authority must be done on a case-by-case basis, when examining the question of technology-based effluent limitations. DER sent a warning letter to Smith on April 20, 1983, informing the processor that discarding its wastewater into Trout Creek without a DER permit constituted a violation of state law. After the warning letter, scallop harvesting declined to the point that by mid-June of 1983 the plant had closed down, and it did not reopen until the middle part of September 1983. Upon the recommencement of operations, DER issued a cease and desist notice and ordered Smith to quit the discharge of wastewater from the facility into Trout Creek. On the topic of the cease and desist, through litigation, Smith has been allowed the right to conduct interim operation of his business which involves direct discharge of wastewater into Trout Creek, pending assessment of wastewater treatment alternatives and pursuit of appropriate DER permits. 1/ When Smith filed for permits on April 10, 1984, he asked for permission to dredge and fill and for construction rights pertaining to industrial wastewater discharge into the St. Johns River. The application of April 10, 1984, involved the installation of a wastewater treatment system and an associated outfall pipeline to transport treated wastewater to the St. Johns River from the plant location. This system would utilize a series of settling tanks and a shell-filter lagoon as the principal wastewater treatment. DER, following evaluation, gave notice in October 1984 of its intent to issue permits related to dredge and fill and the construction of the wastewater treatment facility. In the face of that notification, the present Petitioners offered a timely challenge to the issuance of any DER permits. In considering treatment alternatives, Homer Smith had employed various consultants and discovered that treatment beyond coarse screening had not been attempted in processing calico scallop wastewater. Those consultants were of the opinion that conventional treatment methods such as clarification, sand filtration, vortex separation, breakpoint chlorination, polymers and spray irrigation were of limited viability due to the inability to remove key constituents within the waste stream or based upon certain operational difficulties that they thought would be experienced in attempting those methods of treatment. As envisioned by the April 10, 1984, application for permit, interim treatment of the wastewater was provided by the use of a series of settling tanks and a shell-filter lagoon, within which system adjustments were made to the delivery of wastewater treatment. The April 10, 1984, permit application by Smith did not envision any chemical treatment of the wastewater aside from that which might occur in association with the settling and filtration through the shell-filter lagoon. Following DER's statement of intent to issue a permit for construction of the wastewater treatment facility as described in the April 10, 1984, application by Smith, DER became concerned about the potential toxicity of calico scallop wastewater, based upon its own studies. As a consequence, Smith amended the application for wastewater treatment facility to include use of chemical coagulation and flotation. This amendment occurred in March 1985, and the wastewater treatment process in that application envisioned the use of an electroflotation wastewater system. In view of toxicity problems experienced with the testing related to the use of an electroflotation wastewater treatment system, this treatment alternative was discarded in favor of a dissolved air flotation (DAF) system. This system was pursuant to an amendment to the application effective May 31, 1985. This amendment of May 1985 was in furtherance of the order of the hearing officer setting a deadline for amendments to the application. DER issued an amended intent to grant permits for the DAF unit and the associated pipeline and that action dates from June 28, 1985. The Petitioners oppose the grant of these permits for the DAF unit and pipeline, and under the auspices of their initial petition have made a timely challenge to the grant of a permit for the installation of the DAF wastewater treatment unit and associated pipeline. It is the DAF unit and pipeline that will be considered in substance in the course of this recommended order. On July 6, 1984, Smith sought an easement from the State of Florida, Department of Natural Resources (DNR) for the installation of the pipeline. This was necessary in view of the fact that the pipeline would traverse sovereignty lands which were located beneath Trout Creek, Palmo Cove and the St. Johns River. On December 17, 1984, DNR issued a notice of intent to submit that application to the Board of Trustees of the Internal Improvement Trust Fund with a recommendation of approval. This action was challenged by the Petitioners on January 7, 1985, in a petition for formal hearing challenging the grant of the easement. DOAH Case No. 85-0277 concerns this challenge to grant of an easement. Originally, by action of January 28, 1985, the easement case was consolidated with the present DER permit actions. At the instigation of DNR, the easement case was severed from consideration with the present action. The order of severance was entered on July 31, 1985. The DNR case will be heard on a future date yet to be established. The DNR case was severed because that agency preferred to see test results of treatment efficiencies following the construction of the DAF unit. By contrast, the present DER cases contemplate a decision being reached on the acceptability of the construction of the DAF unit and attendant features, together with the pipeline on the basis of theoretical viability of this entire system. This arrangement would be in phases in which the construction of the upland treatment system would occur within 90 days of the receipt of any construction permit from DER, followed by a second phase within which Smith would construct the pipeline within 60 days of receipt of any other necessary governmental approval, such as the DNR easement approval. Furthermore, DER would wish to see the results of an integrated treatment system involving the upland treatment by the DAF unit and its attendant features and the use of the pipeline and the availability of a mixing zone, that is to say the end of pipe discharge, before deciding on the ultimate question of the grant of an operating permit for the wastewater treatment system. The quandary presented by these arrangements concerns the fact that discharge from the DAF treatment unit would be temporarily introduced into Trout Creek, pending the decision by DNR to grant an easement for the pipeline and the necessary time to install that pipeline. Given the difficult circumstances of these actions, there is raised the question of the propriety of discharging wastewater into Trout Creek pending resolution of the question of whether DNR wishes to grant an easement to place the pipeline over sovereignty submerged lands. This is a perplexing question in view of the fact that DNR requested severance from the present action, thereby promoting further delay in the time between any installation of the upland treatment system and the pipeline. Finally, Trout Creek is an ecosystem which has undergone considerable stress in the past, and it is more susceptible to the influences of pollution than the St. Johns River would be as a point of ultimate discharge from the pipeline. This dilemma is addressed in greater detail in subsequent sections within the recommended order. Petitioner River Systems Preservation, Inc., is a nonprofit organization comprised of approximately seven hundred persons. The focus of the organization is to protect and enhance the environment of northeast Florida. The individual Petitioners, Pinkham E. Pacetti, Robert D. Maley, Ruth M. Whitman and others, are members of the corporation who own property or live near the scallop processing plant of Respondent Smith. In addition, Pacetti owns a marina and recreational fishing camp that is located across Trout Creek from Smith's plant. Pacetti's fish camp dates from 1929. On the occasion of the opportunity for the public to offer their comments about this project, a significant number of persons made presentations at the public hearing on August 29, 1985. Some members of the public favored the project and others were opposed to the grant of any permits. St. Johns County Board of County Commissioners, in the person of Commissioner Sarah Bailey, indicated opposition to the project, together with Bill Basford, President of the Jacksonville City Council. Warren Moody, the vice-chairman of the Jacksonville Waterways Authority spoke in opposition to the project. The Florida Wildlife Federation and the Jacksonville Audubon Society expressed opposition to the project. The officials related the fact of the expenditure of considerable amounts of public tax dollars to improve water quality in the St. Johns River and their concern that those expenditures not be squandered with the advent of some damage to the St. Johns River by allowing the permits in question to be issued. These officials considered the St. Johns River to be a significant resource which they are committed to protecting. The City of Jacksonville, Clay County, Green Cove Springs, the Jacksonville Waterways Authority, the Northeast Florida Regional Planning Council and St. Johns County expressed opposition to the project contemplated by the present permit application, through the adoption of certain resolutions. These broad-based statements of opposition were not spoken to in the course of the hearing by members of any technical staffs to these governmental institutions. Private members of the public, some of whom are affiliated with River Systems Preservation, Inc., expressed concern about water quality violations, harm to fish and other environmental degradations that have been caused by the Homer Smith operation in the past and their belief that these problems will persist if the permits at issue are granted. Those persons who favored the project, in terms of public discussion, primarily centered on the idea that, in the estimation of those witnesses, fairness demanded that Smith be afforded an opportunity to demonstrate that this proposed system of treatment was sound and the quality of the water being discharged from the Homer Smith plant was not as bothersome as had been portrayed by the persons who opposed the grant of environmental permits. Industrial Wastewater Construction Permit Treatment System Description of Homer Smith's Plant and Its Operation. The source of water used for the processing of the scallops at the Homer Smith plant is a well which is located on that property. Homer Smith is allowed to withdraw 300,000 gallons of water per day in accordance with a consumptive use permit that has been issued by the St. Johns River Water Management District. To ensure Smith's compliance with this permit, a metering device is located on the well. Typically, the plant operates an eighteen-hour day, five days a week, using water at a rate of 200 gallons per minute. This would equate to 215,000 gallons per day over an eighteen-hour day. Prior to the imposition of restrictions by the Department of Environmental Regulation through the consent order, this facility had processed as much as 40,000 pounds of scallops each day, for a total of 36,000 gallons each week, at a gross revenue figure of $225,000 per week. Characteristics and Frequency of Effluent Discharge The wastewater generated by the scallop processing that is done at the Homer Smith plant is principally constituted of the well water used to clean the scallops, proteinaceous organic materials, and metals. The metals are introduced into the wastewater stream from the scallop tissue. The wastewater stream also has a certain amount of sand and grit, together with shell fragments. The concentrations of organic materials within the wastewater stream are at high levels. There is also an amount of fecal coliform bacteria and suspended solids. The pollution sources within the wastewater stream include total suspended solids (TSS), biochemical oxygen demand (BOD), nutrients (nitrogen and phosphorus) and the coliform bacteria. In the neighborhood of 30 percent of the BOD in the wastewater is soluble. The balance of the BOD is associated with the suspended solids. With time the organic materials in the wastewater stream will decompose and with the decomposition present certain organic decomposition products, which would include ammonia, amines and sulfides. Heavy metals in the wastewater have been in the scallop tissue and are released with the cleaning of the scallops. These metals include cadmium, copper, zinc, iron, manganese, silver and arsenic. The presence of these metals within the tissues of the scallops are there in view of the fact that the scallops are "filter-feeders" which have taken in these elements or metals that naturally occur in the ocean water. The permit application contemplates an average of five days a week of operation for eighteen hours a day. Notwithstanding the fact that in the past the Homer Smith Seafood operation had processed scallops seven day week, twenty- four hours per day, Smith does not desire to operate more than five and a half days a week in the future. That is perceived to mean five eighteen-hour days and a twelve-hour day on the sixth day. The treatment system contemplated here is for a flow volume of around 200 gallons per minute during normal operation. The system can operate as high as 300 gallons per minute. That latter figure approaches the design capabilities of the treatment system proposed. Wastewater is discharged only when scallops are being processed. There is basically 1:1 ratio between the volume of well water used to process the scallops and the amount of wastewater discharged. Proposed Treatment System and Alternatives As already stated, there is no specific industry standard set forth in the DER rules which would describe technology-based standards for the treatment of calico scallop wastewater. In those instances where the agency is confronted with an industry for which technology-based standards have not been established, DER examines the question of whether that effluent is amenable to biological treatment as contemplated in Rule 17-6.300(1)(n)1., Florida Administrative Code, as an alternative. Biological treatment is a treatment form normally associated with domestic waste and the imposition of this treatment technique is in furtherance of achieving a secondary treatment standard found in Chapter 17-6, Florida Administrative Code, which results in 20 mg/L of BOD and TSS, or 90 percent removal of those constituents, whichever is the greater performance in removal efficiency. In the absence of specific standards related to the calico scallop industry, and in the face of the interpretation of its rules in which DER calls for an examination of the possibility of biological treatment as an alternative to treatment specifically described for a given industry, it was incumbent upon this Applicant to examine the viability of biological treatment of the scallop wastewater product. The Applicant has considered biological treatment as an alternative and rejected that treatment form, in that Smith's consultants believe the wastewater is not amenable to biological treatment. By contrast, Petitioners' consultants believe that biological treatment should be the principal focus in treating the scallop wastewater and contend that biological treatment is a more viable choice when contrasted with the option chosen by the Applicant. If this waste is not amenable to biological treatment, Rule 17-6.300(1)(n)1., Florida Administrative Code, envisions an acceptable or minimum level of secondary treatment shall be determined on a case-by-case basis. In the instance where biological treatment is not a reasonable choice, the Applicant is expected to achieve treatment results which are comparable to those arrived at in treating domestic waste by the use of biological treatment techniques. On this occasion, DER had not established what they believe to be a comparable degree of treatment for calico scallop waste, assuming the unavailability of biological treatment. The present case is a matter of first impression. As a result, the idea of a comparable degree of treatment shall be defined in this hearing process, assuming the inefficacy of biological treatment. In that event, DER must be assured that the proposed treatment plan has an efficiency that rivals the success which biological treatment promotes with domestic waste, taking into account the quality of the effluent prior to treatment, available technology, other permitting criteria and the ambient conditions where the waste stream is being discharged. In arguing in favor of biological treatment, Petitioners pose the possibility of an integrated system in which primary settling tanks or clarifiers would be used together with a biological treatment step, which is referred to as a trickling filter, followed by final settling by the use of tanks or clarifiers in an effort to achieve BOD concentrations in the range of 200 mg/L to 400 mg/L. In this connection, the dissolved air flotation system is seen in the role of alternative to the initial stage of settling of the constituents within the wastewater stream. It is not regarded as the principal means of treatment of the waste. The trickling filter system as a biological treatment medium involves the use of a bacterial culture for the purpose of consuming the oxygen-demanding constituents, BOD. The trickling filter technique, if a viable choice, has the ability to remove 70 to 75 percent of BOD and TSS. Petitioners suggest further treatment of the waste beyond primary and final settling and trickling filter can be afforded by involving activated sludge, which according to their experts would end up with a biological oxygen demand in the 20 mg/L range. Although the constituents of the Smith plant's waste are of a highly organic nature, and, at first blush a candidate for biological treatment by use of the trickling filter, the problem with this form of treatment has to do with the intermittent flow in the Smith operation. This intermittent flow is caused by the fact that the plant does not operate throughout the year. The plant operations are seasonal, depending on calico scallop harvesting which does not occur on a routine basis. Therefore, the problem is presented of trying to keep the biological treatment system "alive" and operating at levels of efficiency which can be expected to maintain the percentage of removal of BOD and TSS that a healthy system can deliver. The bacteria colonies which are vital to the success of the biological treatment system must be fed on a continuous basis to maintain balance in the population of the colony. This would be a difficult undertaking with the Smith operation, given the interruptions in operations which could lead to the decline in the bacterial population and a poorer quality of treatment once the operations were resumed. This finding takes into account the fact that the colony can survive for a week or two by simply recirculating water over the filter. Obviously, in order to maintain necessary efficiencies within this biological treatment, the bacteria must do more than survive. The further suggestion that has been offered that the bacteria could be sustained for longer periods of time by feeding them seafood waste or dog food are not found to achieve the level of efficiency in the operation that would be necessary in posing biological treatment as an alternative. Again, it is more of an intervening measure designed to assure the survival of bacteria pending the continuation of the operations of the plant, as contrasted with a system which is continual and taking into account the uniformity of the waste product more efficient. Another problem with feeding the bacteria when the plant is not operating is that of disposing of the waste produced when this auxiliary feeding is occurring. Just as importantly, biological treatment is questionable given the long retention times necessary for that process and the build-up of toxic levels or concentrations of ammonia. The Applicant had employed an aerated lagoon in attempting to treat the waste and experienced problems with ammonia build up. Although this system did not call for the degree of treatment of the waste prior to the introduction into the lagoon that is contemplated by the present proposal of the Applicant, it does point to the fact of the problems with ammonia in the biological treatment system. Dr. Grantham, a witness whose testimony was presented by the Petitioner, conceded the difficulty of removing ammonia from the trickling filter. Moreover, the biological treatment system is not especially efficient in removing metals and phosphorus from the wastewater. Alternative treatment would be necessary to gain better efficiency in removals of those constituents. The trickling filter is expected to gain 50 percent metals removal, which is inadequate given the concentrations of heavy metals found in the scallop wastewater. Phosphorus could be removed after treatment by the trickling filter by the use of lime or alum. Assuming optimum conditions in the use of biological treatment after primary and final settling, thereby arriving at a BOD level of 200 mg/L, it would then be necessary to make further treatment by the use of activated sludge to see 20 mg/L BOD. The problem with activated sludge is related to the fact that this form of treatment is particularly sensitive to interruptions in flow, which are to be expected in this wastewater treatment setting. On balance, biological treatment does not present a viable choice in treating scallop waste. That leaves for consideration the question of whether the Applicant's proposal would afford a comparable degree of treatment to that expected in the use of biological treatment of domestic waste. The manufacturer of the dissolved air flotation unit or DAF system proposed, known as the Krofta "Supracell," offers another piece of equipment known as the "Sandcell" which in addition to the provision for dissolved air flotation provides sand filtration. The Sandcell might arrive at BOD levels of 400 mg/L. However, the testimony of the witness Lawrence K. Wang, who is intimately familiar with the Krofta products, in responding to questions about the use of the Sandcell system and suggestion that the system would arrive at 400 mg/L BOD responded "could be." This answer does not verify improvement through the contribution of sand filtration. For that reason inclusion of a Sandcell for filtration of BOD is not suggested in this fact finding and the system as proposed must be sufficient in its own right. Having realized the need to provide greater treatment than screening or filtering the waste stream, the Applicant attempted to design a treatment system using flotation technology together with chemical precipitation and coagulation. At first the Applicant examined the possibility of the use of electroflotation (EF). This involved the collection of wastewater in a retention tank and the generation of an electric current to create a series of bubbles to float insoluble flocs. Those flocs are caused by the use of ferric chloride, sodium hydroxide and various polymers which are added to the waste stream. The flocs are then pushed to the top of the chamber by the air bubbles, and this particulate matter is skimmed off by the use of a paddle. Pilot testing was done of the electroflotation technology and showed promising results, so promising that a full-scale electroflotation unit was installed and tested. The full-scale electroflotation showed reasonable removal of BOD, TSS, nutrients, coliform and trace metals. This technique was discarded, however, when bioassay testing of the treated effluent was not successful. In examining the explanation for the failure, the experts of the Applicant were of the opinion that certain chemical reactions were occurring as a result of the passage of the electrical current through the wastewater stream. When this problem with acute toxicity could not be overcome through a series of adjustments to the process, the Applicant decided to test another form of flotation, which is referred to as dissolved air flotation (DAF). This system employs the use of chemicals to create insoluble flocs. Unlike the electroflotation unit, though, it does not utilize electrical currents to create the air bubbles employed in the flotation. The dissolved air flotation thereby avoids problems of toxicity which might be attributed to the passage of electrical current through the water column. The present system as proposed by the Applicant has a number of components. The first component of treatment involves the passage of raw wastewater through a mechanical screening device, which is designed to remove a certain number of particulates by catching those materials on the screen. That material is then removed from the plant and disposed of off site. The balance of the wastewater after this first stage of treatment passes into a sump area and from there into a primary mix/ aeration tank. This water is then chemically treated to facilitate the formation of insoluble flocs. The chemically treated wastewater then enters a premanufactured Krofta Supracell 15 DAF unit which is designed to form bubbles by the use of pressurized air, with those bubbles floating the waste materials within the floc to the surface. Again, this method does not use electrolysis. The floated solid materials are then skimmed from the surface and directed to a holding tank and subsequently pumped to sludge drying beds. Some of the treated wastewater is recycled through the DAF unit after pressurization and in furtherance of forming the necessary bubbles for the DAF unit. The balance of the water is directed to a force main lift station. This water would then be transported through the eight-inch PVC pipe some 13,000 feet into the main channel of the St. Johns River where it is distributed through a five port diffuser. The screening mechanism spoken of had been installed in mid-December 1984 and has been used since that time to filter the wastewater. The screening mechanism is in substitution of settling tanks and shell pits. The shell pits which had been used before presented problems with odors as well as the ammonia build up which has been addressed in a prior paragraph. The removal efficiency of the screening mechanism is 30 percent of particulates associated with pollution parameters, as example BOD, total Kjeldahl nitrogen, total phosphorus and TSS. The frequency of the transport of these screened materials to the off site disposal is four to six times a day and the screen is decontaminated at the end of each day when the operations are closed. The application contemplates the same operating procedures of disposal and maintenance with the advent of any construction permit. The primary mix/aeration tank aerates the wastewater and through that process and the retention time contemplated, equalizes the flow regime and promotes a more balanced concentration of waste materials prior to the introduction of that wastewater for chemical coagulation and flotation. This step in the treatment process enhances the treatment efficiency. Some question was raised by the Petitioners on the size of the primary mix-aeration tank as to whether that tank was sufficient to equalize the flow, and conversely, the impacts of having too much retention time built into that tank, which would promote the build-up of toxic concentrations of ammonia in the wastewater. The retention time within the sump and the primary mix-aeration tank approximates one and one-half hours. The retention time and size of the primary mix-aeration tank are found to be acceptable. This design appropriately addresses concerns about the build-up of decomposition products and toxicity, to include ammonia. The sludge which collects in the primary mix-aeration tank will be pumped back to the sump pit by return flow. The sump pit itself will be pumped out in the fashion of cleaning a septic tank on the basis of once a week. The sump pit also receives the return flow of leachate from the sludge drying bed. Once equalization of flow is achieved in the primary mix-aeration tank, that wastewater is then treated by the use of alum, sodium aluminate and polymers. The purpose of this treatment is to convert soluble and insoluble organic matter such as TSS and BOD, trace elements and phosphorus into insoluble flocs that can be removed by flotation. These combinations of chemicals and dosage rates have been tested in electroflotation and dissolved air flotation bench and pilot scales for use associated with this project and a list of appropriate chemicals and ranges of dosage rates has been determined. It will be necessary for these chemicals and general dosages to be adjusted in the full- scale operation under terms of the construction permit. This facet of the treatment process must be closely monitored. Once the wastewater stream has received the chemical treatment, it is introduced into the Krofta Supracell 15 DAF unit. This unit is 15 feet in diameter, and within this cylinder bubbles are generated by pressurizing some of the chemically treated wastewater and potentially clean tap water. The use of clean tap water promotes dilution of the wastewater stream as well as greater efficiency in the production of the bubbles. Chemically treated wastewater is brought into the cylinder through the back of a revolving arm that moves around a center column of the DAF unit at the speed of the effluent flow. The purpose of this mechanical arrangement is to eliminate horizontal water velocity, to protect the integrity of the flocs that are being formed by the use of the chemicals. Those flocs float to the surface in a few minutes' time, given the normal turbulence and shallow depth of the DAF unit. This limited retention time also avoids ammonia build up. The floating material is then scooped and poured into a stationary center section and is discharged by gravity to the sludge holding tank. Wiper blades which are attached to the revolving arm scrape the bottom and sides of the tank and discharge any settled sludge to a built-in sump in the DAF unit. These materials which are settled in the bottom of the DAF cylinder are transported through the sludge holding tank and eventually placed in the sludge drying beds. The treated wastewater is removed by an extraction pipe associated with the center section of the DAF unit. It is then discharged. The use of clean tap water from the well and the ability to recycle the waste stream can promote greater treatment efficiency in terms of removal of undesirable constituents of the waste stream and the reduction of concentrations of those materials. As a measurement, approximately 8 percent of the wastewater flow will be removed as sludge. This sludge is sufficiently aerated to be reduced in volume by about one-half over a period of ten to thirty minutes in the sludge holding tank. It is then sent to the sludge drying beds. The sludge drying beds are designed to accommodate 30,000 gallons of sludge. They are 60 feet long, 25 feet wide and 4 feet deep. Those drying beds are of greater size than is necessary to accommodate the volume of sludge. The sludge drying beds have a sand and gravel bottom. The water drains from the sludge as leachate and returns to the sump pit in the treatment system at a rate of five to ten gallons a minute. Some concern has been expressed that the "gelatinous" nature of the sludge will make it very difficult to dewater or dry. This opinion is held by experts of the Petitioners, notwithstanding the fact that polymers are used in the treatment process. One expert in particular did not believe that the sludge would adequately dry. Having Considered the evidence, the opinion that the sludge will not dry sufficiently is rejected. Nonetheless, it is incumbent upon the Applicant to monitor drying conditions of the sludge very carefully and, if need be, to add some chemical such as calcium hydroxide to enhance the drying capacity of the sludge material. It is anticipated that the sludge will be removed once a day and this arrangement should be adhered to. With adequate drying, the sludge material can be removed with the use of shovels, rakes and a front-end loader as proposed by the Applicant. With frequent removal and adequate drying, problems with odors can be overcome, and problems with ammonia build up and the generation of unreasonable levels of bacteria can be avoided. Should problems with odors, ammonia and bacteria occur, it would be necessary for the Applicant to purge the drying beds, to include the sand and gravel which had been invested with the sludge materials that had caused the problems. Although Smith has not tested the drying bed leachate as to specific nature, the treatment process can be expected to deal with problems of any build-up of ammonia concentrations, fecal coliform bacteria and other organic decomposition products. This pertains to the ability to remove these offending substances from the site in terms of removal of the residual solids and the ability to treat those parameters within the leachate as the wastewater is cycled through the system. The treated wastewater will be transported to a pumping station by gravity flow and then pumped via the pipeline to the proposed point of discharge in the main channel of the St. Johns River. This pipeline is constituted of fabricated sections of pipe 20 feet in length, connected with bell and spigot joints, rubber gaskets and solvent welding. The treated wastewater is released into the river through a five point diffuser which has three-quarter inch openings angled at ten degrees from the horizontal bottom. The pipeline is anchored with prefilled 80-pound concrete bags attached with polypropelene straps which are placed at 8-foot intervals. These are placed to keep the pipe from floating. The diffuser is supported by four piles driven into the river bottom and surrounded by a series of concrete bags. The purpose of this arrangement is to hold the diffuser in place and to protect it against potential damage from anchors or other possible impact. The Applicant acquiesces in the choice to have the pipeline tested for leaks once a month in the period June through September and every other month during other parts of the year. If leaks are found, the Applicant would be responsible for repairing those leaks. As stated before, it is necessary for the Applicant to receive permission from the State of Florida to be granted an easement before the pipe can be installed. Prior to that permission being granted, the treated wastewater would be placed in Trout Creek, which is adjacent to the processing plant. Predicted End of Pipeline Quality of the Effluent In trying to predict the quality of effluent at the end of the pipeline, bench scale and pilot scale testing was done related to the DAF technology. This testing was done related to screened wastewater that was collected from the plant in April 1985. In this connection two series of DAF bench scale tests were performed. They related to samples collected on April 18 and 19, 1985, which were packed in ice and shipped directly to a research laboratory in Lenox, Massachusetts, where they were treated with chemicals and a laboratory size DAF unit. The concentration of the wastewater parameters were measured and recorded before and after treatment, and the results of those tests are set forth in the Applicant's Exhibit A-4(B)(3), at Table 2-1. The pilot scale testing that was done in this case related to a 4-foot diameter DAF unit which had been installed at the Homer Smith plant. This testing occurred in April 1985. The basis of the testing was samples taken on April 15 and 19, 1985. Again, wastewater parameters were measured before and after treatment and the results are set forth in Applicant's Exhibit A-4(B)(3), at Table 2-1. When the initial testing was done with the DAF, results for total coliform bacteria uniformly fell below a range of 35 organisms/100 ml. Subsequent pilot tests yielded higher bacterial counts which would indicate that there was a build-up of bacteria within the DAF unit. This verifies the need to require that the DAF unit contemplated by the application be routinely cleaned or sanitized to avoid the build-up problem. TSS in the pilot unit effluent was reduced to 40 mg/L and lower. The capacity for metals removal in the pilot scale testing was good pertaining to copper and zinc. The ability to remove cadmium showed a result of 0.013 and 0.015 mg/L. The best performance in the pilot scale testing related to BOD removal showed a value of 510 mg/L. It should be noted that the bench scale testing and pilot scale testing were in the face of significant variations in the amount of BOD presented by the screened wastewater. This identifies the need to pay close attention to the removal efficiency of the system related to the BOD parameter in order to achieve consistent levels of BOD following treatment. The system under review is referred to as full-scale treatment. This treatment can be expected to exceed the levels achieved in the DAF bench and pilot scale testing because: (a) As a general proposition, treatment efficiency improves as the scale of machinery increases from bench to pilot to full-scale; (b) The bench and pilot scale tests were run without the benefit of the primary mix-aeration tank and the benefits derived from that part of the treatment apparatus, that is to say, uniformity of the flow and better dispersion of the constituents of the wastewater stream, prior to chemical treatment; (c) The pilot DAF unit used exclusively recycled wastewater to undergo pressurization for the creation of the air bubbles. In the course of the hearing it was established that approximately 50 gallons per minute of clean tap water could be brought in to the treatment process resulting in the formation of more bubbles and the facilitation of up to 10 percent greater treatment efficiency based upon that change. The other contribution made by the use of clean tap water was the possibility of as much as a 20 percent dilution of the wastewater stream, in terms of concentration of constituents within the wastewater stream; (d) In a full-scale operation, the opportunity is presented to routinely adjust the chemical dosages as well as select among a range of chemicals in order to achieve the greatest treatment efficiency; (e) In employing routine sanitization of the DAF unit by use of a mild chlorine compound, the tendency to accumulate coliform bacteria can be overcome. Removal of this adverse influence improves the water quality. In traveling through the pipeline, the transit time is in the range of two to three hours. At a normal rate of 250 gallons per minute of discharge, the transit time in the pipeline is 2.25 hours. Given the constituents of the wastewater, bacterial populations can be expected and could conceivably consume sufficient amounts of oxygen to affect the dissolved oxygen levels within the wastewater as it exits the pipe at the diffuser ports. In addition, there is some possibility of ammonia build up within the pipeline. To avoid the build up of bacteria at harmful levels, sanitation of the DAF unit must be accomplished. In addition, the pipeline itself should be flushed with clean water at the close of operations each day and treated with small amounts of chlorine to address bacteria which may form within the pipeline. This avoids the increasing concentrations of ammonia and protects against lowered dissolved oxygen concentrations and the possibility of increased levels of toxic substances in the effluent which might be attributable to the proliferation of bacteria and the build-up of ammonia during the transport through the pipeline. Taking into the account the nature of this wastewater and the velocity associated with the transport and the sanitization of the pipeline, sedimentation associated with organic solids or other materials will not present a problem. The pollution parameters associated with the treated effluent at the point of discharge from the pipeline can be expected to meet Class III orders, excepting unionized ammonia, specific conductance, copper, cadmium, pH and zinc. In order to achieve satisfactory compliance with regulatory requirements related to those parameters, the Applicant has requested a two-meter mixing zone. The purpose of that mixing zone would be to afford an opportunity for dispersion and mixing in the ambient water before imposition of water quality standards. The implications of that mixing zone are discussed in a subsequent section to the fact finding within the Recommended Order. In effect use of the mixing zone will promote compliance with standards pertaining to the subject parameters. Petitioners point out the fact that the Applicant has based its assumptions on the results of treatment on the availability of four sets of data which were obtained from DAF effluent--two sets of data coming from the bench tests and two sets of data from the pilot plant. Further, there is an indication of the variation in quality of the effluent from one test to the next and the need to employ different dosage rates of chemicals in the face of those variations. The full-scale system utilizes a number of techniques to gain some uniformity in the quality of the effluent prior to chemical treatment and thereby some uniformity in the amount of chemicals necessary to treat the effluent. This overall system can then be expected to produce treated wastewater that is basically uniform in its constituents. Petitioners point out the limited amount of data in the testing related to BOD. There were, in fact, only two data points: one related to the bench system and one related to the pilot system pertaining to BOD, both of these the product of different chemical dosages for treatment. Again, the system that is at issue in this proceeding can be expected to arrive at a more consistent level of BOD than is depicted in the results pertaining to bench scale and pilot scale testing. In fact, those results were not remarkably disparate in that the bench sale test produced 560 mg/L and the pilot scale test produced 510 mg/L. While the data related to BOD is limited, it still gives sufficient insight as to the probability of successful full-scale treatment and the test data is found to be a reliable indication of success in achieving the goal of 510 mg/L BOD. Contrary to the Petitioners' perceptions, the treatment efficiency is improved with the system that is under review. Petitioners believe that the bench and pilot scale testing not only is unrepresentative of the full-size DAF system, they also believe that the full-size system represents a lesser quality of treatment. In this regard reference is made to features which would adversely affect the treatment efficiencies. The first of those pertains to leachate which drains from beneath the sludge drying beds and is recirculated to the existing sump pit and added to the waste stream. Sludge which sits in the drying bed does decompose and causes biochemical reactions to occur, as Petitioners suggest. Moreover, no specific testing has been done of the leachate to ascertain the ammonia concentrations, pH or other chemical characteristics. Nonetheless, given the intention to clean out the residual matter within the sump pit frequently, and the flexibility to make that cleanup more routinely, and the fact that this amount of leachate is comparatively small in its ratio to wastewater which is being sent through the system for treatment, the leachate is not found to be an unmanageable problem. Nor is the sludge a problem. Likewise, the amounts of heavy metals within the leachate can be accommodated. Concerns expressed by the Petitioners related to the organic materials in the primary mix-aeration tank that is being returned to the sump pit can also be dealt with by the evacuation of the materials in the bottom of the sump pit. This can be achieved more frequently than on a weekly basis if that becomes necessary, and in doing so avoid problems with concentrations of ammonia, bacteria, amines, sulfides and general organic decomposition products. These materials which are returned to the treatment process as wastewater reintroduced into the primary mix-aeration tank can be adequately addressed in the subsequent treatment that occurs by reaeration, the use of the chemicals and DAF flotation. The retention inherent in the sump pit, primary mix-aeration tank and sludge drying bed has a potential to cause problems with ammonia build-up; however, the problems can be satisfactorily addressed, as well as potential problems with other toxic substances in the effluent, by routinely taking the residual material in the sump pit and sludge drying bed out of the treatment system. While the specific chemicals and precise dosage rates to be used with a full-size DAF system remain open, the basic concept of chemical treatment has been identified sufficiently. The precaution that is necessary is to make certain that close monitoring is made of the results of changes in the chemicals and dosage rates. Likewise, special attention should be paid to the implications of adjustments in the pH of the effluent to make certain that compliance is achieved with the Class III water criterion related to changes in pH above background. Adjustments can be made without violating Class III water standards related to pH. In testing that was done pertaining to the electroflotation effluent, a number of other chemicals were observed, to include trimethylamine, dimethyl sulfide, chloroform and other hydrocarbons. There is some indication of the presence of dichleoroethane, ethylbenezene and other aromatics. The possibility exists that these substances may also be products within the DAF effluent. In that event, the critical question would be whether they have any adverse effect in the sense of influences on the ability of the effluent to pass bioassays and the ability of the effluent to comply with standards related to other parameters such as dissolved oxygen, BOD, and TSS. The routine testing which is called for by the draft permit, which is deemed to be appropriate, would create a satisfactory impression of the materials set forth in the paragraph in the sense of the implications of their presence and allow any necessary adjustments in treatment. While the effluent produced in the testing on the part of the Applicant is different, it is representative, and the treated effluent which will be produced in the full-scale system will be of a better quality and present less adverse impacts than shown in the past testing. Petitioners question whether the Applicant has given a conservative portrayal in analyzing the effluent. In particular, it is urged that the Applicant claimed to be vying for use of the bench scale testing as a conservative depiction of the results of treatment. In this connection, the impression given in the hearing was that of ascendancy in treatment efficiency beyond the use of bench scale, pilot scale and ending in full-scale treatment. As pointed out by Petitioners, in making his case the Applicant has used results of bench and pilot scale testing. As example, use was made of the results of testing in the pilot scale in describing the removal effioiencies related to cadmium, whereas in the measurements of nitrogen concentrations the bench scale result was better than that of the pilot testing and was utilized. The real question is whether the overall testing has given some reasonable indication of success in full-scale treatment. To that end, use of results from either the bench scale or pilot scale testing is appropriate, and those results point to success in the full-scale operation. The system that is proposed is designed to address fluctuations in flow and concentrations in the effluent, given the primary mix-aeration tank contribution and the ability to recycle flow within the DAF unit, with the use of clean tap water. This will allow the Applicant to deal with the remarkable differences in BOD that were seen in the test period, ranging from 900 to 3000 mg/L. COD data as well as BOD data is limited but is found to be an ample depiction of potential treatment efficiencies related to that former parameter. In addition to the aforementioned references to changes in chemicals in the treatment process, Petitioners characterize the use of clean tap water in the recycle flow as being "unsubstantiated speculation." While the use of tap water was discussed in a theoretical vein, that discussion is found to be an accurate assessment of the value of the contribution of clean tap water to the treatment system. Impacts on St. Johns River Ambient Water Quality and Conditions The St. Johns River and the area of the proposed discharge is a riverine estuary. It has a freshwater source flowing from the south and a tidal ocean boundary to the north. The confluence of freshwater flow and tidal influences causes the water movement within this area to be oscillatory. That is to say that at different times the water will flow downstream, to the north, and upstream, to the south. There are occasions in which the net flow over a given tidal cycle will be zero; however, the water is always moving. Conductivity and chloride data indicate that the freshwater flow is the dominant flow compared to tidal influences. The extrapolation of available flow data indicates that there is a net downstream flow of fresh water averaging approximately 6,000 CFS. The St. Johns River at the point of discharge is over one and a half miles wide and relatively shallow with maximum depth in the range of 3 to 3.5 meters. Given the fact of the width and depth in this segment of the river, and the imposition of wind conditions and tidal influence, the water is well mixed and flushed. There is no stratification in this portion of the river. The Applicant looked into the question of current bearing and velocity in depths between two to fourteen feet in the water column. Eleven sampling stations were utilized in arriving at information about current bearing. This observation was over an eleven-nautical-mile stretch of the main channel of the St. Johns River. These stations are depicted on Applicant's Exhibit 38. In this portion of the river the current at all measured depth was flowing up and down the main channel. Within these sections there is no indication of a pronounced subsurface water movement toward the east and west banks of the river. Current velocities within the three stations closest to the POD averaged in the range of 0.5 feet per second and velocities in the other stations found within the main channel were within that range of movement. By contrast current velocities within the embayment areas along the east bank of the river were substantially weaker. DER conducted two studies using tracing dyes poured into the St. Johns River at the approximate point of discharge and monitored the course of dispersement of that dye. During this observation the dye was constantly replenished while being carried on the currents. While the dye remained within the area of the main channel, it stayed on the east side of the river as it moved down river on the outgoing tide in the direction of Smith's Point and the Shands Bridge. As the tide was slowing before the change of tide, the dye drifted for approximately two hours in the immediate vicinity of the point of discharge. The DER dye study was a fairly gross measurement of the direction of water movement within the river beyond the point of discharge. It tended to confirm that the water flow was basically up and down river, depending on whether the tide is incoming or outgoing. The studies were not sufficiently refined to speak with any certainty on the possibility that some part of the flow regime would move toward the east or west bank of the river. Nonetheless, in examining the nature of the shallow embayment areas along the banks of the St. Johns River, they are not seen to be subject to the basic flow regime that is occurring in the main channel during tide events. The bathymetry in this area is such that if the main flow regime was having some influence on the embayment areas, the depths within those embayments would be more similar to the depths found in the main channel of the river. Petitioners have employed a number of dye and drogue measurements to try to give a more accurate depiction of the influence of flow within the main channel upon the dispersion of effluent upon discharge and the possibility of those pollutants reaching the embayment areas. While there is no dispute over the fact that Trout Creek is a tributary to the St. Johns River with some tidal influences being shown in that Creek and there is no dispute that water from the St. Johns River flows in and out of Palmo Cove and Trout Creek, there does not appear to be a significant flow of water from the St. John River into the cove and creek from the main channel, in particular from the area of the point of discharge. One of the witnesses of the Petitioners, Sandy Young, did a dye procedure in which a plume was allowed to develop over a distance of approximately 1,000 feet. Although some slight lateral variation was shown in the dye plume, it did not identify a basic flow pattern toward the embayment areas on the east side of the river. The DER dye study was over a distance of some eight thousand feet and also showed some minor lateral variation. Both of these dye studies tend to show a basic flow pattern within the main channel. The dye study run by the Petitioners' witness White gave the same basic depiction as seen in the studies by DER and Young and did not identify a flow pattern out of the main channel toward the embayment areas. In the drogue studies run by Young three Chlorox bottles were filled to 95 percent of volume with water and released at the point of discharge. They were followed for a period of five hours. They moved initially with the outgoing tide toward Jack Wright Island and then when the tide slowed, the drogues slowed. When the tide changed with the incoming tide, the drogues moved toward the center of Palmo Cove. The drogue studies by Young do tend to indicate that some water was exchanged from the main channel at the point of discharge and the embayment areas. It is not a very exact measurement as it only deals with the surface area of the water column, given the wind and wave conditions existing on that occasion. It is in no way representative of the flow direction of the rest of the water column. Therefore, although it may tend to identify that some of the pollutants leaving the point of discharge may find their way to Palmo Cove, it does not establish that quantity of that pollution dispersion and the significance of that dispersion. Based upon this evidence it cannot be seen to be so revealing that the assumptions made by the applicant in trying to identify the dispersion characteristics of the effluent at point of discharge are negated based upon the results of the drogue study. The drogue study which Young did and the observation of the movement from Smith's Point to Little Florence Cove are no more compelling than the dye studies done at the point of discharge. When the Petitioners suggest that there is some influence by centrifugal force pushing the water to the outside of the curve toward the eastern bank, they are correct. However, the contention by the Petitioners that the incoming and outgoing tides sweep to the eastern shoreline of the St. Johns River moving toward Pacetti Point, Palmo Cove, Florence Cove and Smith Point is not accepted. Again, the general flow regime is up and down the main channel of the river and not primarily to the eastern bank. Finally, the fact that the Tetratech data produced for the benefit of the Applicant showing the flow pattern within the overall water column, which indicated that the general direction is the same at the top or bottom of the water column, did not tend to identify the fact that pollutants throughout the water column will be dispersed into the embayment areas from the point of discharge. The data collected in the main channel seem to establish that the water was flowing up and down the channel at depths below the surface. The question becomes whether the amount of pollutants that are being brought into the embayment areas is in such concentrations that they tend to cause problems along the shoreline, especially as it pertains to dissolved oxygen levels. From the facts presented, this outcome is not expected. Levels of dissolved oxygen in the St. Johns River can vary in the natural condition as much as 2 to 3 mg daily. These variations are influenced by algal activity and are not uncommon in Florida waters. Dissolved oxygen is essential to aquatic life. Optimum levels of dissolved oxygen for the fish population of the river are in the neighborhood of 6 to 8 mg/L. DER has established a minimum DO standard of 5 mg/L for Class III waters such as Trout Creek, Palmo Cove and the St. Johns River. This standard is designed to achieve uniform compliance throughout water column at whatever time the measurement may be made. DER, by the employment of this rule, is attempting to deal with those instances in which, in view of the dissolved oxygen level, aquatic organisms are placed under greater stress. The lowest DO concentration expected is normally seen in the summer in July, August and September. DO concentrations in the water column are expected to be highest at the surface area and lowest near the bottom. Measurements near the bottom are significant in this instance because the discharge will occur approximately one foot off the bottom of the river. The Applicant took DO measurements of the area in question during the spring of 1984 over a period of three days. These measurements were taken at a time when a better quality of dissolved oxygen might be expected as contrasted with circumstances in the summer. With the amount of wind involved impressive levels of reaeration were also occurring. These measurements showed that in all stations DO levels were at least 5.0 mg/L at all depths. A study by Applicant's consultant Environmental Science Engineering related to a diurnal event for dissolved oxygen was taken approximately one kilometer downstream from the point of discharge in August 1985 and did not reveal any measurements below 5.0 mg/L. The river was choppy on that day and this would improve the quality of dissolved oxygen. Historical data by DER related to water quality at Picolata, which is south of the POD in the St. Johns River, reveals average DO levels of approximately 6 mg/L. Historical water quality data collected by the Florida Game and Freshwater Fish Commission near Green Cove Springs, which is several kilometers north of the point of discharge, indicated average DO levels in compliance with water quality standards. Diurnal data from near Green Cove Springs did not show any history of DO values below the state standards. There is other historical data, however, which indicates that DO concentrations in the general vicinity of the point of discharge do go below 5.0 mg/L. Game and Freshwater Fish Commission data indicate that the readings below 5.0 mg/L could occur as much as 10 percent of the time. This relates to the study done at Green Cove Springs. There does not appear to be any particular pattern to these events of low DO violations other than the expectation of their occurring in the summer months, occurring more frequently in the lower depths of the water column and in areas which are shallow with limited flow. The summer circumstance is one in which there is a possibility of very heavy rainfall followed by hot weather with overcast skies and no wind, and the DO values go down in that set of conditions. The DO values are, in addition to being lower near the bottom of the water column, likely to be lowest in the evening or early morning hours and persist in length of time from eight to ten hours. Some of the Florida Game and Freshwater Fish Commission data from Green Cove Springs depicted some DO concentrations as low as 1.8 mg/L at the bottom and 2.1 mg/L at the surface. The low readings that were taken at Green Cove Springs occurred in September 1979 after Hurricane David had created unusual conditions in the upper St. Johns River as to effects on DO. The same report indicated DO concentrations at eleven stations in the lower St. Johns River in July and September 1982 were in the range to 4.0 to 4.5 mg/L respectively. This particular data is not particularly valuable in view of the location of those stations. There are occasions when the DO concentration at the point of discharge could go below 5 mg/L and could be as low as 2 mg/L on the bottom, but this is not a routine occurrence and would not persist. The Petitioners' consultant Young had taken certain dissolved oxygen readings at the point of discharge in April 1985 and found compliance with the 5 mg/L standard. At other times he and the consultant white measured substandard dissolved oxygen concentrations at the point of discharge. On July 20, 1985, white collected water samples at the surface and at two feet above the bottom and determined that the readings were 4 mg at the surface and 3 mg near the bottom. On August 10, 1985, Young measured DO concentrations of 4 mg/L near the bottom. On August 30, 1985, Young measured DO values of 4 mg/L at the point of discharge. Young had also measured DO concentrations at Green Cove Springs on August 10, 1985, and discovered readings as low as .5 mg/L and ranging up to 3.8 mg/L. A downstream measurement away from the point of discharge in the main channel made on August 10, 1985, by Young showed a dissolved oxygen reading of 4 mg/L. In these August measurements Young had discovered a number of readings that were in compliance with the 5 mg/L requirement. Again on September 5, 1985, Young made a measurement of dissolved oxygen near the bottom of the water column at the point of discharge which was 5.3 mg/L. Young's measurements of dissolved oxygen at the surface and in the intermediate depth, typically were above 5 mg/L. Bottom readings taken by Young in the main channel of the river and to some extent in the embayment areas were extracted from the soft detrital materials, the place of intersection of the river bottom and the water column. DO levels in these anoxic materials would tend to give lower dissolved oxygen readings and, to the extent that this anoxic material remains in the test probe while taking measurements toward the surface, would have an influence on the readings, making them appear lower than would be the case if the anoxic sediments were not present in the test device. These effects were not so dramatic as to cause the rejection of the data collected by this witness. Some explanation for lower DO readings at the point of discharge can be attributable to the fact that the anoxic material associated with high benthic oxygen demand on the bottom reduces the dissolved oxygen in the water column. Although Rangia clams were present at the point of discharge and they are capable of living in an environment of low salinity and low DO, they are likewise able to live in higher ranges of DO and their presence cannot be regarded as meaning that the dissolved oxygen levels are consistently below 5 mg/L. Petitioners' consultant White opined that there would be a very frequent violation of DO standards at the point of discharge, approaching 25 percent of the time. Considering the facts on the subject of dissolved oxygen in that area, this opinion is rejected, as is the opinion that DO concentrations will go below DER standards most of the time in July, August, and September. Young believes that a more involved study of worst case conditions would reveal DO violations throughout the column in the center of the river. The data that was presented was ample to demonstrate that violations would not be that widespread. Nor is the opinion of the consultant Parks on the subject of DO violations, to the effect that they will occur on many occasions accepted. In the Palmo Cove area it is not unusual to see some DO readings below the 5 mg/L standards. The E.S.E. group found substandard DO conditions in Palmo Cove at sampling Station 1 in September and October 1984 and some instances in April and May 1985. DO concentrations were found in the range of .4 and .6 mg/L in August 15 and 30, 1984, respectively, with DO concentrations of 1.8 and 2.1 mg/L reported on October 4 and October 29, 1984, respectively. DO violations in four out of eight checking periods between April 25 and May 24, 1985, were shown in the Palmo Cove area. Measurements taken by the consultant white showed 3 mg/L at the surface and 2 mg/L at the bottom on July 28, 1985. The consultant Young also made a measurement of 3.2 mg/L of dissolved oxygen on August 10, 1985, in a mid-depth reading in the Palmo Cove area. On September 5, 1985, he found a DO reading of 4.0 mg/L. At those places along the eastern shoreline of the St. Johns River and the relative vicinity of Florence Cove, Jack Wright Island, Little Florence Cove and Colee Cove, low dissolved oxygen readings were found, that is below 5 mg/L. These coves can be expected to have substandard readings frequently during the summer period, based upon measurements taken by the consultant Young. In the conduct of the drogue study related to the Chlorox bottle, the consultant Young in tracking the path of those bottles, found a couple of locations in the path of the drogue which were in the range 2.8 to 4.2 mg/L and 2.0 to 4.6 mg/L. The influences of the discharge will not reduce DO in the embayments. The ambient conditions for BOD in the area where the discharge is contemplated is relatively low and there is no thermal or saline stratification even in the summer months. Nutrient concentrations in this part of the St. Johns River are as indicated within the Applicants Exhibit A-4(B)(3) and at present are at such levels as to promote a healthy fish community. There is algae production that can be sufficient in some areas within this section to cause algae blooms. Algae blooms are not found to be a routine occurrence. Algae blooms reflect higher levels of nitrogen and phosphorus. The consultants Young and White have seen algae blooms in the St. Johns River away from the general area of concern, both upstream and downstream. Should those algae blooms occur, they would promote significant rises and falls in DO concentrations. In Palmo Cove and the St. Johns River, supersaturated DO concentrations have been detected and they are indications of high rates of primary algal productivity. The circumstance of supersaturated conditions, related to dissolved oxygen, can be the by-product of an algal bloom. The concentrations of nitrogen range from an average of 1.42 to a maximum of 2.54 mg/L. Nitrogen concentrations of 1.4 mg to 1.5 mg/L are optimally advantageous for fish production. Significant increases above those levels would cause the decline of the fish population. Total phosphorus concentrations in the ambient waters are high. Concentrations in excess of 0.1 mg/L of total phosphorus are regarded as a indication of eutrophication and the average concentration here is measured as 0.3 mg/L with a maximum ambient concentration found at 0.52 milligrams per liter. There is significant algal growth in the inshore areas and an indication of some eutrophication in the grass beds. The dominant species of algae found in that vicinity are blue-green, which are seen as being nuisance species. The grass beds along the shoreline are basically healthy. On the other hand, some of the public witnesses identified the fact that grass beds and other vegetation have died with the advent of discharge from the Applicant's plant into Trout Creek. This was under a system in which little or no treatment was afforded the effluent. One other public witness indicated that his dock in the Florence Cove area had been covered with a slimy material and algae during the past two years. Significant grass beds are found along Jack Wright Island and in other areas along the eastern shoreline of the river. These grass beds are important as fish habitat to include nursery areas, areas for various juvenile species of fish and other organisms. Some of these grass beds are showing signs of environmental stress, and nutrient loading can contribute to that stress. Some of the grass beds are covered with higher amounts of algae, duckweed and periphyton than are desirable. The duckweed had floated into these areas from other locations and can be expected to move away. The presence of algae is an indication of nutrient loading. The presence of duckweed is not a product of nutrient loading in the sense of the production of the duckweed at the site where they were found along the shoreline. The area in question between Pacetti Point and Shands Bridge serves as a nursery in a sense of providing habitat for juvenile species of fish and other organisms. The grass beds along the shoreline provide habitat for feeding and breeding related to juvenile organisms, to include such species as bass and shrimp. Juvenile catfish are found within the deeper portions of the river as well as croaker and other marine species. There is a high number of juvenile blue crabs in this area of the river and this is a commercial resource. Shrimp are taken by recreational fisherman in the area of the North Shore Pacetti Point. Clam beds are also present near the point of discharge. Juvenile and adult manatee have been seen in the St. Johns River and in the area near Jack Wright Island. Manatee have also been observed in Trout Creek at a time before the operation of the Applicant's plant and at times following the cessation of operations in June 1985. During the course of the operation of the Applicant's plant, when raw effluent was discharged into Trout Creek, fish kills were observed. Those events had not been seen prior to the operation of the plant. Indications are that fish were killed in the creek due to the use by the Applicant of fly bait, which made its way into the water. Dispersion Modeling of Water Quality Impact In order to gain some impression of the influences caused by the dispersion of the pollutants within the effluent, the Applicant through its expert employed several modeling techniques. DER was made aware of this modeling as it developed. A far-field model was used to calculate what the long-term or steady state impacts of the treated effluent would be on the ambient water quality. In trying to identify the influence of the discharge, measurement of metals were taken based upon an assessment of long term increases. BOD, which breaks down and consumes oxygen over time, was examined in the sense of the long term effects as to DO deficits. In essence these projections were superimposed over the ambient condition to gain an impression of the adjusted ambient values, taking into account the influence of the discharge. The Applicant also ran a plume model which was designed to calculate spreading and dispersion of the treated effluent within the zone of initial dilution or mixing zone at the point of discharge. This model responds to the discharge configuration. Through the use of computer calculations, it was established that a five-point diffuser with port openings of 0.75 inches in diameter angled upward at ten degrees would result in an effluent dilution ratio of 28.5:1 within two meters of the point of discharge. The calculated impacts of the plume model were superimposed upon the adjusted ambient water quality conditions set forth in the far-field model in order to determine net impact upon the receiving waters within the mixing zone. A third model was used, referred to as the lateral diffusivity model. This model is designed to calculate the six-hour or short term water quality impacts of the treated effluent when it moves from the zone of initial dilution during flood and ebb tide conditions. By estimating dispersion rate, this model predicts what dilution would occur in the path of the effluent plume. These impacts were then superimposed upon the adjusted ambient water quality conditions to determine the total impact in the path of the plume. The modeling work by the Applicant's consultant is a reasonable depiction of the predicted impacts of the pollution on the ambient conditions. The calculations used in the far-field model assumed a freshwater flow of 2,000 CFS. This assumption in the far-field model satisfactorily addresses worst case flow conditions related to seven-day, 10-year low flow. The temperature utilized in depicting ambient water was 30 degrees centigrade when employed in the far-field and lateral diffusivity models. This corresponds to warm weather conditions, which are more profound in describing effects on water quality. The far-field and lateral diffusivity models assumed that the treated effluent discharged from the pipeline would have a BOD concentration of 665 mg/L. This is contrasted with the maximum concentration allowed by the draft permit, which is 510 mg/L, which is the expected amount of BOD. This tends to depict the impacts of the discharge more conservatively. The model assumes the BOD loading of 2,720 kg per week, equating to an average discharge concentration of 665 mg/L if the plant operates five days a week on an eighteen-hour day. The reaeration rate and NBOD and CBOD decay rates used in the far field and lateral diffusivity models are acceptable. Likewise, the longitudinal dispersion coefficient that was used in the far-field model is acceptable. The standard modeling methodology in this process calls for an assumption of a 1.33 growth rate of the plume in the lateral diffusivity model. The Applicant's consultant decided to use a lower constant diffusivity growth rate. As a consequence, less lateral spreading is depicted. With less lateral spreading, less dilution is shown, and the impacts predicted by the model are exaggerated. One of the parameters of the plume model has to do with river flow which causes some turbulence and also brings about dilution. In this instance the plume model calculations assume stagnant conditions which is a more conservative assessment. As the Petitioners have suggested, the modeling to explain the impacts of dispersion of the pollutants is not designed to give precise calculations of the DO deficit at each point in the river along the eastern shoreline. It is indeed an estimate. The estimate on this occasion is reasonable. Although DER performs mathematical analysis of dispersion of proposed discharge in some cases, it did not do so on this occasion. Nonetheless DER was satisfied with the present choice for modeling the dispersion characteristics of the discharge. Although the models utilized were not subject to exact calibration by measurement of the dispersion at the site, the information gained by the Applicant prior to the imposition of the modeling techniques was sufficient to develop the models and to give a theoretical verification of the expected impacts from the discharge. The Applicant's belief that the maximum DO deficit caused by the discharge will not exceed 0.1 mg/L is accepted. The dissolved oxygen level in the effluent at the point of discharge will be above 5 mg/L. The Applicant's choice of reaeration rates, CBOD decay rates, NBOD decay rates, discharge rate from the pipeline, hours of operation, average reversing current speed, net non- tidal flow, non-tidal velocity, time lag before NBOD decay, maximum tidal velocity, and other variables and assumptions within the models were acceptable choices. Although the possibility exists of an occasional 5 1/2 day operation in which 10 additional hours of operation are added, this would not be so significant as to set aside the predictions as to the pollutant dispersion. The Applicant's consultant who modeled the dispersion rates did not conduct dye studies to verify or calibrate the actual dispersion in the river. One of the dye studies indicated a lateral spreading rate which was less than that predicted by the model. Notwithstanding this revelation, the overall techniques used by the Applicant in predicting lateral spreading rate are sound and do not present a risk of a greater DO deficit than was predicted based upon incorrect assumptions as to lateral spreading rates. The Applicant's consultant's use of 2,000 CFS as the net non-tidal low flow was a more convincing estimate than the field data collected by the United States Geological Service, given the paucity of information about the flow conditions within the St. Johns River. The Applicant's choices in describing maximum tidal velocities and average velocity are accepted. The critique of the modeling efforts done by the Applicant that was made by Petitioners' consultant, Dr. Parks, in which he concludes that the DO deficit is considerably greater than 0.1 mg/L is not accepted. Comparison of Predicted Impacts of Discharge with Statutory and Regulatory Criteria Inside the Mixing Zone Applicant's assumptions about the increase in nutrient concentrations in the St. Johns caused by the discharge are accepted. This is based on the assumption of a nitrogen value of 52 mg/L which was achieved in bench scale testing of the effluent and which can be achieved in the full scale operation. As the effluent is discharged from the diffuser within the mixing zone, there will be some turbidity problems in that the bottom near the point of discharge. The soft silt there is easily resuspended. When the discharge is concluded, the material will settle back to the bottom. There will be further resuspension when the operation commences again and there is a discharge. The transport of these suspended materials is limited in that the water velocity associated with the discharge is quickly dissipated. This phenomenon will not cause adverse environmental impacts. The mixing zone does not include an area approved by the State of Florida, Department of Natural Resources for shellfish harvesting; it does not exceed the presumptive maximum size set forth in Rule 17-4.244, Florida Administrative Code. Nor does it include an existing drinking water supply intake or any other existing supply intake that would be significantly impaired by the proposed mixing zone. The water in this area is of sufficient depth that it will not support grass beds that are associated with a principal nursery area, such as pond weed, midgeon grass, manatee grass, turtle grass or eel grass which are used to support nursery activities. These grasses are normally found inshore. Although juvenile fish are found throughout this reach of the St. Johns River, and for that matter in the entire lower eighty miles of the St. Johns River, the mixing zone is not of such dimensions that it will preempt the health of juvenile fish. Most of the freshwater fish in this system use the littoral areas for reproduction. Marine and estuarine species do not reproduce in the St. Johns River. There is some reproduction that is occurring with some species, such as catfish. Given the size of the mixing zone, no significant adverse effects will occur with the established community of organisms in this portion of the river. The mixing zone will not otherwise impair designated uses of the St. Johns River. The treated effluent will not create a nuisance condition or violate any other DER standards that apply within the mixing zone. With the advent of the full scale facility, maximum, average and chronic toxicity criteria can be reasonably expected to be met at the point of discharge, within the mixing zone and at the boundary of the mixing zone. As described before, the effects of sediment transport upon discharge are localized. The proposal for a mixing zone takes into account Rule 17-4.244, Florida Administrative Code, in the sense of addressing present and future sources of pollutants and the combined effects with other pollutants or substances which may be present in the ambient waters. One of the concerns which DER has about wastewater is the effect which that pollutant has on organisms within the environment. To gain an impression of that influence, testing is required to establish whether the wastewater is acutely toxic. The testing is known as bioassay assessment. While this assessment is normally done after the grant of a construction permit, when confronted with uncertainty about the quality of the effluent, some testing is beneficial prior to the grant of a construction permit. This is especially true given DER's experiences in dealing with raw effluent of several of the scallop processors, to include Homer Smith, which showed that the raw effluent was acutely toxic. This acute toxicity testing is done by placing test organisms into aquaria containing the effluent and measuring survival of those species over time. Results are described in terms of a measurement of the concentration of the effluent at which 50 percent of the organisms are killed during a prescribed test period. In static testing the organisms are simply exposed to the effluent for the requisite period of time. By contrast, a static renewal test calls for the effluent to be replaced with another sample of the effluent at various intervals within the test period. Finally, a flow through bioassay test calls for a continuous stream of fresh effluent to be introduced in prescribed concentrations over the duration of the test. A bioassay assessment in the static condition was performed related to DAF pilot scale effluent that was collected on April 19, 1985. In this instance Daphnia magna were used as test organisms and demonstrated a survival rate of greater than 50 percent in a 100 percent concentration of effluent over a period of 96 hours in the setting of static and static renewal tests. That survival rate was also shown in lesser concentrations of effluent as well. The April 19, 1985, sample was also used in testing the response of Pimephales promelas. These test organisms did not survive either in the static or static renewal tests. While an hypothesis has been made that acute toxicity was experienced in this test organism attributable to build-ups of ammonia, which is greater with this type of organism than with the Daphnia, due to larger biomass which allows for a greater number of ammonia generating bacteria to be presented in the test aquaria and the fact that the Pimethales excrete more ammonia, these differences do not definitely explain why the Daphnia survived and the Pimephales did not. In the series of static renewal bioassays performed on the wastewater that was collected at the plant on April 29, 1985, and shipped to Lenox, Massachusetts, for bench scale treatment, the test organisms of both types failed to survive for 96 hours. It was discovered that during the course of the test period, levels of ammonia rose rapidly. Trace metals in the treated effluent are principally in the form of stable species, as opposed to free ions. These constituents standing alone are not likely to have caused the mortality in the test organisms. The effect of decomposition of the organic constituents in the waste stream is the most likely explanation of why the bioassays of pilot and bench scale treated effluent did not lead to a satisfactory result. Unionized ammonia, a by-product of organic decomposition, is found to be a principle player in the explanation of why the treated effluent was acutely toxic to the test organisms. The exact cause of toxicity has not been precisely identified. Given the complex nature of the effluent, other potentially toxic substances such as sulfides, amines, and other organic compounds could have contributed to the demise of the test organisms. Moreover, toxicity can increase with combinations of chemicals acting in a synergistic fashion, making their combined effects more devastating than the effect of any single substance. Having in mind the fact that ammonia is a major problem in the survival of test organisms subjected to a bioassay, the question becomes one of what may be done to remove ammonia. The production of ammonia in wastewater would depend upon the presence of bacteria. The proposed DAF system removes substantial numbers of bacteria, thereby limiting the possibility of ammonia build-up, if bacteria are not allowed to recolonize in some part of the system prior to discharge. As discussed before, reduction of bacterial activity can be achieved within the proposed treatment system. This is unlike the experience with the bench scale and pilot scale testing that was done on the effluent in which a substantial amount of time transpired before subjecting the test organisms to the effluent and in which a substantial amount of time transpired while the test organisms were being subjected to static and static renewal procedures with the same effluent. The time intervals contributed to the build- up of toxic levels of ammonia in the effluent. The system which is proposed in this instance can avoid the problem of time as it relates to the build-up of levels of ammonia. To further reduce the influence of retention of the waste product, flow through bioassay testing would be the most appropriate measurement of the survivability of the test organism in that it would be responding to real case conditions pertaining to the quality of effluent and its potential toxicity. Under these circumstances, it is reasonable to believe that in a flow through bioassay test of the full scale treatment system, the test organisms could survive. This determination is reached given the reduction in retention time compared to the bench and pilot scale testing, which reduces ammonia, with further ability to reduce ammonia by frequent removal of residual materials from the sludge drying bed and sump pit and taking into account basic improvements in treatment efficiency associated with the full scale system. In addition, the pH of the effluent can be regulated to avoid toxicity in the ammonia which is associated with inappropriate balance within the pH. While a 96-hour LC-50 cannot be calculated with the results of bench scale and pilot scale testing, a reasonable possibility exists for the establishment of that measurement with the advent of a flow through bioassay. There is sufficient similarity between the effluent in the pilot and bench scale testing and the expected effluent in the full-size system for the bioassay testing that was done in those limited systems to give a meaningful indication of the probability that the Applicant can pass a flow through bioassay. Applicant can be reasonably expected to produce an effluent in the mixing zone which will not exceed the 96 hour LC-50 for acute toxicity. As with the circumstance of ammonia, pH can be controlled within the system to address the implications of changes in pH as it pertains to other pollutants in the wastewater. Ammonia production can be influenced by the amount of alkalinity in the effluent and the receiving waters. Alkalinity has not been measured thus far. Alkalinity could be established for the effluent and receiving waters and dealt with if it was suspected as being an explanation of problems with the build up of ammonia which might exceed DER standards. The discharge from the Applicant's plant will not cause long-term problems with low DO, high nutrients, algal imbalances, and chronic toxicity. Outside the Mixing Zone Those constituents within the waste stream, to include those for which a mixing zone was sought, will comply with applicable water quality standards at the boundary of the mixing zone. The dissolved oxygen deficit at its maximum can be expected to be in the neighborhood of 0.1 mg/L and will be exerted somewhere in the range between 1 and 2.5 km downstream of the point of discharge across the width of the plume in worst case conditions. This deficit is not of a dimension which is easily detectable. The implications of that deficit are difficult to perceive in terms of tangible environmental consequences. While a deficit in the range of 0.1 mg/L has some relevance in the DER permitting decision, that deficit as it is dispersed is not expected to cause or contribute to violations of water quality standards in the main channel of the river or in the inshore and embayment areas. While it is true that there are periodic fluctuations of dissolved oxygen below 5 mg/L, DER, as a matter of present policy and professional judgment believes that in this system which evidences characteristics of a clean well-flushed, unstratified water body occasional readings of low DO are not regarded as an indication of violation of water quality standards. This speaks to the main channel area of the river where the only quantifiable influence is expected. The facts presented in this case support the soundness of this policy choice. Petitioners presented the testimony of former officials within DER, namely Parks and Young, who stated that dissolved oxygen standards of 5 mg/L are applied at all times and at all places. They felt that the DER policy was to the effect that permits would not be granted for discharge in any circumstance where the DO concentrations are substandard in the ambient waters, regardless of the amount of decrease or deficit that would be promoted. Parks spoke of the availability of site specific alternative criteria, variances, exceptions or exemptions from the terms of the water quality rule. Having considered these remarks, the present DER policy of allowing the permit to be granted in the instance where occasional violations of ambient water quality standards related to 5 mg/L occur, in the face of the small deficit which is involved in this case, is the better choice. Further, it is a choice that is not so inconsistent with prior practices as to be arbitrary in nature. Finally, DER's position that it would be unadvisable to require a request for site specific alternative criteria, variances, exceptions or exemptions in circumstances such as this case is accepted, when taking into account the problems which would be presented to the agency in administering the permit program, should each Applicant who is confronted with occasional violations below standards for dissolved oxygen have to seek extraordinary relief. While the facts do identify that some pollutants can reach the embayment areas on the eastern shore, the facts do not depict a circumstance in which the amount and quality of that effluent will be such that it will cause or contribute to dissolved oxygen violations in those areas. The water quality in the embayment areas is lower than that in the main area of the river due to inadequate flushing. The areas inshore do not interact with the main channel in a way that would take advantage of the faster moving currents found in the main channel as this interaction might promote a better quality of water. In view of the situation in the embayment areas, the Applicant, on advice of his consultants, moved the proposed location of the discharge into the main channel away from the areas which were under greater stress in terms of dissolved oxygen values and in doing so avoided damage to these areas. The current velocities in the area east of the main channel are weak. There is a substantial distance from the point of discharge to the inshore areas. As the effluent moves toward the inshore or nearshore areas it will become so diluted it will not have an adverse influence on dissolved oxygen. Not only the distances involved, but also the fact that water flowing near the surface is well aerated contributes to the dilution of the effluent as it approaches the shore. Although it has been shown that some stress in the grasses along the eastern shoreline has occurred and the existence of blue-green algae has been shown, together with indications of undesirable algal production, the nutrients which are part of the effluent at the point of discharge are not expected to cause an imbalance in the natural populations of flora and fauna or create nuisance conditions or violations of transparency standards. The nitrogen increase could cause an increase in algal production in the order of one percent, which is inconsequential. The treated effluent will not adversely effect biological integrity of the St. Johns River. The benthic microinvertebrate community in this part of the river is fairly low density due to the fluctuations in salinity levels and predation by fish and blue crabs and given the nature of this substrate which is unstable with low levels of dissolved oxygen. The organisms that are predominant have a tolerance to siltation and fluctuations in dissolved oxygen. The treated effluent will not adversely effect the microinvertebrate community. Petitioners point out the fact that when DO concentrations decrease below optimum levels, fish and other organisms suffer. The fish reduce their movement, feeding and reproduction and they are less disease resistant. They are placed in a position of having to leave the area or risk death if the impacts of the decrease in dissolved oxygen are severe. The influence of the effluent at the point of discharge in this project is not expected to have significant impact on fish and other organisms within these topics of concern expressed in the paragraph. Even though the dissolved oxygen deficit extends in amounts below 0.1 mg/L as far as 2.1 km upstream and 4.5 km downstream and within a wide breadth of the center portion of the river, those deficits will not be significant to the water quality. The BOD associated with the discharge, allowing for mixing will not depress dissolved oxygen levels below DER standards of 5 mg/L. The combination of BOD and nutrient discharge will not cause an imbalance of algal production in the river, nor will it contribute to the dominance of nuisance algal species. The BOD nutrient loading associated with the discharge into the St. Johns will not promote significant ecological impacts on the St. Johns River, to include the possibility of more frequent and severe algae blooms, increase in benthic oxygen demand, risk of increase eutrophication, destruction of grass beds or decline in the fishery. With the advent of discharge in the St. Johns DO fluctuations in the river will not be greater nor will there be an occurrence of a swing from substandard dissolved oxygen levels to supersaturated dissolved oxygen. While the discharge from the Applicant's plant contains pollutants such as cadmium, zinc, arsenic, copper and organic decomposition products, the treatment provided the wastewater is expected to overcome any acute toxicity associated with these materials individually or in combination. Chronic toxicity is not expected related to these materials. The effects of these materials are not expected to cause physiological and behavioral responses which are abnormal in organisms such as reduced locomotion and reproduction or increase susceptibility to diseases to include ulceration and increased mortality. Treatment contemplated and provision of a mixing zone will allow compliance with the standards related to cadmium. Reference has been made to a development known as St. Johns Harbor which is in the vicinity of the proposed discharge and can be expected to promote some pollution in Palmo Cove and the St. Johns River. Although St. Johns Harbor development is proceeding through stages of permit review, it does not appear that it has reached a place in which exact information about its implications as a pollution source can be set out. In discussing the St. Johns Harbor Development, Petitioners emphasized that this eventuality and other matters which deal with cumulative impact have not been satisfactorily addressed. There is no indication than any other substantial development or activity other that St. Johns Harbor is contemplated in this area associated with the permit review at hand. St. Johns Harbor eventually hopes to develop 3000 residential units. It has received the approval of the Northeast Florida Regional Planning Council for the initial phase of development. It has been reviewed by the Florida Fresh Water Game and Fish Commission. The developers are proceeding with the project to include the sale of lots. Nonetheless, that development has not reached the phase where its implications would form the basis of a denial of this project based upon the theory of cumulative impact. While Petitioners contend that stormwater runoff from the St. Johns Harbor project will be a problem, assuming an inadequacy in the design which that developer employs to deal with that matter, this eventuality is not expected based on a review on the facts presented. Reference is made to the Ulcer Disease Syndrome which fish in the St. Johns have suffered from. The principal area in which this event has occurred is north of the area expected to be influenced by this discharge. Nonetheless, diseased fish have been found in Palmo Cove. This Ulcer Disease Syndrome is caused by heavy metals and hydrocarbons, and these materials act in league. The advent of additional heavy metals and other pollutants, such as those being discharged from the Applicant's plant could cause further deterioration in the condition of fish suffering from Ulcer Disease Syndrome. Having considered the facts, this outcome is not expected. Ambient levels of 18 other pertinent pollution constituents in the vicinity of the point of discharge were ascertained by the Applicant's consultants on the basis of field observations and historical United States Geological Survey and Florida Game and Fresh Water Fish Commission data. This formed a basis of an assessment of average and worst case values. This information indicates compliance with those parameters for purposes of water quality standards at the point of discharge. Implementation of Construction Permit Permit Conditions Applicant's Exhibit A-10 is a copy of the DER intent to issue the construction permit. It sets forth seventeen specific permit conditions, and these conditions should be imposed in the permit. The following are additional conditions that should be set forth in the construction permit: The operation and maintenance manual required by original Condition 10 shall provide that the DAF treatment system be cleaned regularly with a mild chlorine solution and that the wastewater from this maintenance be placed in a vehicle and carried off the premises for disposal at an appropriate location. This wastewater from the cleanup shall not be discharged from the plant into state waters. The operation and maintenance manual shall provide that a dosage level of chlorine to clean the pipeline that will result in comp- liance with all water quality standards at the end of the pipeline be added to a fraction of fresh water used to flush the system at the cessation of discharges each day. DER must approve this dosage amount before it becomes part of the operation and maintenance manual. The operation and maintenance manual shall set forth a regular schedule for pumping the accumulated sludge or solid materials from the sump pit. The operation and maintenance manual shall provide that as much as 50 gallons per minute of fresh tapwater may be added to recycled wastewater for pressurization. Any discharge created with this addition may not exceed 250 gallons per minute. Any discharge created above 200 gallons per minute shall be consti- tuted only of tap water. Two machine scallop processing operations at the plant will be limited to an average of 18 hours per day and no more than 90 hours in a week. Monitoring in Trout Creek shall continue as specified in paragraph 17(E) of the Consent Order as long as discharges into Trout Creek continue. On each occasion when the DAF treatment system is in operation, the Applicant shall have a fully trained operator on site. The terms of the construction permit shall expire on December 31, 1986. The constructed pipeline shall be leak tested once a month from June to September and every other month during other months of the year. If a leak in the pipeline is detected it shall be repaired within 20 days and retested for leaks within 15 days thereafter. The carrying out of any leak testing and repairs shall hereunder shall be certified by a professional engineer. Pre-pipeline Operations Petitioners have pointed out the fact that when two or more pollutants are present, as in the instance of the effluent discharged by the Applicant's plant, those pollutants tend to act in a synergistio manner. That can exacerbate the circumstance where you find low dissolved oxygen. This is particularly a matter of concern when discussing Trout Creek. This is unlike the impacts of the discharge into the St. Johns River which are not expected to exceed standards or promote adverse effects. The implications of operation within Trout Creek to allow necessary permit review by DER and the State of Florida, Department of Natural Resources can be overcome once the discharge is withdrawn from Trout Creek and may be addressed by DER more immediately if the dissolved air flotation unit, after a reasonable period of adjustment, does not perform in the fashion that it appears to be capable of. In the instance of discharge into Trout Creek, the material discharged tends to remain in that area for a relatively long period in that the creek is small and has very little flow and poor flushing characteristics. DO levels will be depressed, the presence of a deficit in dissolved oxygen caused by the discharge from the DAF unit would increase the probability of fish kills when contrasted with a circumstance where there is no further deficit of dissolved oxygen. Given the explanation of why a fish kill occurred based upon the past use of fly bait by the Applicant and the fact that there is no indication of fly bait in the present plans, a fish kill in Trout Creek in the time of interim discharged does not seem probable. With the advent of discharge into Trout Creek, the possibility is enhanced for algae blooms and increased eutrophication. There would also be some accumulation of toxic substances. Additionally, there would be some influence on juvenile fish which are more sensitive to pollutants and the possibility exists that it could reach levels that are lethal to bass larvae and juvenile sports fish. The creek would lose some of its viability as a nursery and some fish would leave the creek. These events are not irreversible and can be reasonably remedied with the cessation of discharge into the creek. Moreover, as in the instance with the problem with fish kills, if some set of circumstances attributable to the discharge were to occur in such dimensions as to cause long term impacts in Trout Creek, DER could take action against the construction permit. Dissolved oxygen in Trout Creek can be below the 5 mg/L standard. Data of the E.S.E. group showed that at Highway 13 bridge, approximately fifty yards from the plant in December 1984 and January 1985, values were as low as 0.1 and 0.2 mg/L, and readings could be frequently below 2 mg/L at Highway 13. In April through June 1985, periodic surface dissolved oxygen concentrations were in the range of 3 mg/L and as low as 2.4 mg/L. DO concentrations generally found at the bottom of Trout Creek could be as little or lower than 1 mg/L at times. In July 24, 1985, at the time when the plant had not been operating for approximately a month, the DO concentrations were 2.9 mg/L at mid-depth and 0.8 mg at the bottom. Within Trout Creek in the area of the Pacetti marina, Consultant White measured DO concentrations in the range 1-3 mg/L. On August 10, 1985, six weeks after operations had stopped at the Smith facility, DO concentrations were found to be 3 mg at the surface, less at mid-depth and 0 near the bottom. Computer modeling was not done to ascertain the impacts of a discharge directly into Trout Creek from the DAF unit. The modeling done by the Petitioner's consultant, Parks, using some of the concepts considered in the Applicant's modeling for the St. Johns River is inapplicable to the circumstances in Trout Creek. Trout Creek has also served as a nursing ground for reproduction and habitat for young fish. During the course of the operations by the Applicant in the discharge of essentially untreated effluent, the beds of bass and sun fish have not been seen within the creek. Water quality improves with the DAF unit and sediment loading by heavy metals decreases. Trout Creek is a stressed system at present. It has low levels of dissolved oxygen, high nutrient concentrations and the presence of heavy metals in undesirable amounts. The low numbers of pytoplankton species give some indication of a highly stressed ecosystem. The present officials of DER, Palmer, Owen and Fox, expressed their concerns about dissolved oxygen in those instances where there would be a decrease in ambient DO concentrations. This has particular importance in discussing the problems associated with the discharge into Trout Creek, as opposed to the point of discharge contemplated in the St. Johns River, which risk is minimized given the characteristics of that area and the higher readings of ambient dissolved oxygen in that water, as contrasted with low readings within Trout Creek. A literal interpretation of the position of the agency officials would lead to the conclusion suggested by the Petitioners that no discharge should be allowed into Trout Creek, even on an interim basis. However, such a position would be inherently unfair considering the fact that some discharge would occur into the creek before the installation of the pipeline, whether based upon simultaneous permit review by DER and the State of Florida, Department of Natural Resources in the easement case or sequential review as is contemplated in this instance. Admittedly, the amount of time involved in the discharge into Trout Creek increases in view of the severance of the easement case from the present proceedings. This circumstance occurred in view of the desire on the part of the DNR to see the actual treatment efficiencies involved with the dissolved air flotation unit as opposed to the theoretical possibilities of that equipment. In the present situation, it would be a reasonable policy choice for DER to allow an interim discharge into Trout Creek pending the opportunity for DNR to monitor the quality of the effluent produced by the DAF unit and make a decision about the easement, thus allowing installation of the pipeline if the easement is granted. This arrangement contemplates that DER should closely monitor the quality of the effluent produced by the DAF unit, to make certain, after the Applicant has been given the opportunity to make necessary adjustments to that unit, that the Applicant is not allowed to continue to discharge into Trout Creek following this period of adjustment, when it is shown that the Applicant's equipment is not performing as expected. In any event, the discharge of effluent into Trout Creek will continue over a limited period of time and the system can be expected to quickly return to its healthier state after the removal of the discharge from Trout Creek. This has occurred in the past when the operations of the plant ceased and occurred at a time when the wastewater was of a more damaging quality than contemplated by that associated with the DAF unit. In summary, it would be a reasonable policy choice to allow the interim discharge into Trout Creek on this occasion. Dredge and Fill Permit Characteristics of Pipeline Corridor The pipeline corridor encompasses portions of Trout Creek, Palmo Cove and the St. Johns River. The bottom sediments where the pipeline is to be installed are constituted of soft, and sometimes extremely soft, flocculent silt. Although these sediments are easily resuspended, dispersement of these sediments will only occur while the pipeline is being installed. In placing the pipeline, it is the intention of the Applicant to simply allow the pipe to sink into the sediment. The soft substrate is several feet deep in some places within the proposed corridor. Nonetheless, the pipe is expected to stabilize as it sinks into the material. There are places within the corridor where a crusty material may be found on the surface of or just beneath the substrate. These are locations where jetting or mechanical excavation may be necessary. Jetting may also be necessary along the approximately 155 foot stretch of the corridor that crosses the State of Florida, Department of Transportation right-of-way. This requirement would occur in view of the fact that the Department of Transportation mandates that the pipeline be at a minimum of 30 inches below the creek bottom. In those instances where jetting or other mechanical excavation might be utilized, silt screens would be used to control the short term turbidity. In the areas within the pipeline corridor where tree trunks and branches have been found, these obstructions can be removed without incident. Taking into account the nature of the substrate, at the location where the diffuser will be placed at the end of the pipeline, special attention will be given to that installation to avoid having the diffuser settle into the soft silty material. Given the fact that the silty material is several feet deep and the related fact that the Applicant has not done specific testing of the depth, density and compressibility of this silty material, careful attention should be given to anchoring the diffuser and making certain that the exhaust ports within that device are correctly positioned. The need for this close attention is borne out by the fact that a test pipe which was placed in the silty material settled approximately two and a half feet within several weeks. The matter of the security of the diffuser is also critical, given the fact that the diffuser will be located within one foot of the bottom. Through proper installation, the Applicant can avoid having the diffuser settle into the silty material over time. The installation techniques satisfactorily address the potential problems. Projected Impacts (1) Environmental The icthyological and macroinvertebrate communities within the pipeline corridor have been examined by the Applicant in the person of his consultants. It was found that there are a variety of freshwater fishes within Trout Creek, such as large-mouth bass and sun fish, and a moderate density of macroinvertebrates. The St. Johns River proper is dominated by estuarine and marine aquatic organisms. Infaunal macroinvertebrate densities in the area of the pipeline corridor in the St. Johns River are not high. In placing the pipeline, the effects on aquatic and benthic communities within the corridor or upon water quality do not pose a threat to those communities or to water quality. During the installation of the pipeline, some disturbance of the benthic organisms can be expected; however, those organisms will be able to recolonize quickly. The mere presence of the pipeline is not expected to cause long-term impacts on biological resources or water quality. (b) Navigation In the area of the intended placement of the pipeline related to Trout Creek, boating clubs utilize that vicinity for purposes of anchorage. Those clubs have as many as twenty to thirty boats whose size varies from twenty to fifty-five feet in length. Some of those boats carry anchors which can weigh forty-five pounds or more. Typically, in anchoring one of these craft, the anchor rope is tied down and the engines reversed to set the anchor. Although testimony was given to the effect that the anchors being set might puncture the pipeline, given the explanation about the placement of the pipeline and the nature of the pipe itself, problems with puncturing the pipeline as it might interfere with navigation or environmental concerns such as turbidity plumes due to a puncture of the pipeline are not expected. Nor are the activities associated with retrieval of the anchors via the use of electric winches or hoists seen to be a problem in the sense of snagging the pipeline and rupturing the pipeline when the anchors are brought aboard the vessels. In summary, the pipeline will not be an interference to navigation in the sense of boat anchorage or other aspects of navigation associated with boating. Moreover, the Applicant is willing to indicate the location of the pipeline on navigational charts to assist boaters in avoiding potential problems with anchorage. This is a desirable arrangement and should be done. Comparison of Projected Impacts with Statutory and Regulatory Criteria The dredge and fill activities associated with the pipeline are not expected to cause long-term or short-term adverse impact on biological resources or water quality, or are they expected to interfere with the conservation of natural resources or marine productivity or interfere with navigation to such an extent to be contrary to public interest. The placement of the pipeline will not promote unacceptable interference with fish and other natural resources or destroy clam beds or grass flats, such as would be contrary to the public interest. Permit Conditions Appropriate permit conditions are as follows: Installation of the pipeline shall be conducted within Trout Creek only during weekdays. Pipeline installation activities within Trout Creek shall not block navigation. The pipeline shall be constructed within 60 days following the receipt of all necessary approval, to include the grant of an easement by the State of Florida, Department of Natural Resources for the placement of the pipeline over submerged sovereignty lands. All conditions set forth in the DER draft permit. See Applicant's Exhibit A-57.
Findings Of Fact On September 16, 1983, respondent/applicant, Brevard County (County), filed an application for a permit with respondent, Department of Environmental Regulation (DER), seeking authorization to modify and expand its Fortenberry Road wastewater treatment plant from 0.80 million gallons per day (MGD) to 1.40 MGD, which is designed to provide treatment necessary to meet effluent limits based on receiving water quality. The facility is located on Fortenberry Road in Merrit Island, Florida, and is classified as a Class B, Level II treatment plant. On October 14, 1983, DER acknowledged receipt of the application, plans and related material and requested certain additional items to be filed within 30 days. These items were subsequently submitted by the County. On or about January 11, 1984 DER issued its proposed agency action in the form of a draft permit wherein it gave notice that it intended to issue Permit/Certification No. DC0S-75483 and authorize the proposed activity subject to fifteen general and ten specific conditions. These are set forth in detail in the draft permit which has been received in evidence as DER Exhibit 2. Generally, the permit would authorize the County to construct ". . .a 1.40 MGD design activated sludge wastewater treatment plant with chemical additives, a tertiary sand filter, disinfection by chlorination and effluent disposal to a drainage canal and thence to Newfound Harbor." The permit will expire on July 15, 1985. On January 18, 1984, notice of intended agency action to issue the permit was published by the County in Today, a newspaper publication in Brevard County. Upon reading that notice, petitioners, Craig Zabin, Judy Ryan and Robert B. Sampson, all homeowners in Merritt Island, filed petitions requesting a hearing to contest the permit. In their petitions, petitioners generally contended the proposed construction would result in the discharge of effluent containing toxic substances into an Outstanding Florida Water (Newfound Harbor) in violation of Rule 17-4.242, Florida Administrative Code, that the plant has no operating permit, that the plant has violated "discharge standards" for the last three years, and that the plant's present discharge is harmful to human health and aquatic life in violation of various DER rules. The draft permit indicates that the plant effluent will continue to be discharged into a ditch which eventually intersects Newfound Harbor. At that point the Harbor waters are classified as Class III waters within the meaning of Chapter 17-3, Florida Administrative Code. A portion of the Harbor, well to the south of the discharge point, is classified as an Outstanding Florida Water. Uncontradicted expert testimony established that the discharge would not have an impact that was technically measurable on the portion of Newfound Harbor classified as an Outstanding Florida Water. At the present time the County has no valid temporary operating permit (TOP) or operation permit authorizing the operation of the Fortenberry Plant. Although the County applied for such a permit, DER has issued a notice of intent to deny the most recent application for a TOP and that case remains pending before the Division of Administrative Hearings (Case No. 82-2850) According to Specific Condition No. 9 of the draft permit, the County must meet the following flow requirements: 9. Initial flows shall be limited to 1.0 MGD. Additional flows, in the 0.10 MGD increments, may be authorized upon receipt of written assurance from the permittee, based on actual test data, that the treatment plant will achieve the required level of treatment at such higher flows. Therefore, upon completion of construction activities, the County will be authorized a maximum flow of 1.0 MGD at the facility which is a 0.20 MGD increase over the most recently expired TOP. This approximates the current average flows of almost 1.0 MGD. Additional increases, in increments of 0.10 MGD, may be earned by the County by demonstrating with test data that the plant will continue to comply with the effluent limitations established by Specific Condition No. 10 of the draft permit. 2/ The latter limitations are based on a waste load allocation study that was completed in the late 1970s. The draft permit does not increase the allocation of the plant--rather the limits are the same that were formulated when the waste load study was originally completed. The existing facility consistently violates the limits of its allocated waste load. Construction of the additional treatment systems should bring the effluent from this plant into compliance with its waste load allocation. The amount of nitrogen, phosphorus and total suspended solids contributed to Newfound Harbor will be significantly reduced if the additional treatment facilities are constructed. Failure to improve and expand the existing facility will result in the plant continuing to contribute the same poor quality effluent to the waters of Newfound Harbor. Testing by the Department and the County has revealed the presence of high levels of lindane and malathion in the plant's effluent. These substances are spawned by insecticides and are highly toxic to aquatic organisms and invertebrates. Despite considerable investigation by the County, the source of these toxic chemicals is not known. The County is now a party to an enforcement action instituted by the Department on February 28, 1983, and it is in that proceeding, rather than the case at bar, that the appropriate steps to rid the effluent of these prohibitively high levels of malathion and lindane should be determined. In this regard, the Department has represented that it will take all reasonable steps in the enforcement action to insure that the toxic chemicals are eliminated or reduced to tolerable levels by the County, including the requirement that specially designed improvements be made to the plant. 3/ This action should be completed at the very earliest possible date since additional flows from the plant may be authorized at a later date thereby increasing the amount of toxic chemical discharge assuming all other variables remain constant. While the petitioners' concerns about the chemicals are well- founded and legitimate, the issuance of the permit should not be delayed since the plant is currently violating its wastewater load allocation and polluting the waters of Newfound Harbor. The applicant has provided reasonable assurance that the proposed construction would comply with the standards of Chapter 17-6, Florida Administrative Code, and not emit or cause pollution in contravention of Department standards or rules. Such assurances were not controverted by petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be issued to Brevard County for its Fortenberry Plant in accordance with the terms and conditions of the draft permit. DONE and ENTERED this 4th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of April, 1984.
Findings Of Fact Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C. The proposed canals, as well as the existing canals, are being developed as residential home sites. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development, the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.
Recommendation Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION KYLE BROTHERS LAND COMPANY, INC. Petitioner, vs. CASE NO. 76-607 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Petitioner's application for a Class B waste water treatment plant operator was received by Respondent on September 20, 1991. Ms. Setchfield who is in charge of reviewing and approving and/or denying all applications, reviewed Petitioner's application. Based on the documentary evidence submitted by Petitioner, he was given constructive credit for 58 months and actual credits received was 27.6 months for a total credit time of 85.6 months. To receive credit for educational experience, an applicant must demonstrate that his major area of study is in science or biology. Alternatively, an applicant may receive credit provided he furnish Respondent a transcript which would delineate the areas of his studies he successfully completed and the credits received. However, in such instances, an applicant only receives partial credit. Petitioner has been advised (by Respondent) that if he furnish a copy of his transcript, it will be reviewed and if it demonstrates that he is entitled to credit for courses he successfully completed, he would be awarded such credit. Petitioner steadfastly refuses to provide a transcript to Respondent. To be eligible for certification as a Class B waste water treatment plant operator, an applicant must demonstrate, at minimum, that he/she has the required minimum of 96 months total creditable time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioner's application for certification as a Class B waste water treatment plant operator, as he has failed to satisfy the minimum total time requirement for such certification. 1/ DONE and ENTERED this 29th Tallahassee, Leon County, Florida. day of May, 1992, in 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 29th day of May, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMENDED that the application of Jay Hall for a septic tank permit at Lot 1, Deerwood Estates, Baker County, Florida be DENIED. However, applicant should be given thirty days from date of the final order in this cause to raise the height of the system to Department recommended specifications. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.
The Issue The issue in this case is whether the Petitioner has the actual experience required for certification as a Class B domestic wastewater treatment plant operator.
Findings Of Fact By application filed September 16, 1991, James H. Redden applied for certification as a Class B domestic wastewater treatment plant operator. At the time of the application, Mr. Redden was employed as a laboratory technician at a Class B Collier County regional wastewater treatment facility. From August 15, 1978, to July 31, 1989, Mr. Redden was employed at the Colgate-Palmolive Company facility at Jeffersonville, Indiana. The Colgate-Palmolive treatment facility is an Indiana Class D industrial wastewater treatment plant. Mr. Redden is certified by the State of Indiana as a Class D industrial wastewater treatment plant operator. During his employment at the Jeffersonville facility, Mr. Redden held positions as an associate chemist, senior chemist/plant microbiologist, and wastewater treatment plant supervisor. His duties included daily operations and supervision of personnel, scheduling and performance of maintenance activities, budgeting, ordering, materials balance, sludge management, laboratory analysis, quality assurance and quality control programs, and compliance with various state and federal reporting requirements. Mr. Redden has no experience either in the operation of a drinking water or domestic wastewater treatment plant, or at a DER-permitted industrial wastewater treatment plant.
Recommendation Based on the foregoing, it is hereby: RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of James H. Redden for certification as a Class B wastewater treatment plant operator. DONE and RECOMMENDED this 9th day of April, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 9th day of April, 1992. APPENDIX The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner: The Petitioner did not file a proposed recommended order. Respondent: The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2-4. Rejected, unnecessary. COPIES FURNISHED: Carol Browner, Secretary Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 James H. Redden 1362 Chesapeake, Avenue Naples, Florida 33962 Francine M. Ffolkes, Esq. Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399
Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?
Findings Of Fact Eight to ten miles south of Melbourne Beach and 8.3 miles north of Sebastian Inlet, Gar-Con plans to develop a parcel of land stretching west from the Atlantic Ocean, across Highway A1A, to the Indian River. Gar-Con expects to build a motel and residential complex complete with tennis courts, parking garage, water treatment plant and the sewage treatment facility for which a construction permit is sought in these proceedings. The sewage treatment plant would be built on a site 480 feet west of Highway A1A and 90 feet south of Gar-Con's northern property line, at an elevation of 11 or 12 feet above mean sea level. Ocean Way Water and Sewer Association, Inc. is to be organized as a nonprofit corporation to own and operate the wastewater treatment facility. The Public Service Commission, through the director of its water and sewer treatment, has taken the position that the proposed "sewer system will fall within the exemption described in Section 367.022(7), Florida Statutes." DER's Composite Exhibit A. PACKAGE PLANT PROPOSED The facility Gar-Con proposes is designed to treat 100,000 gallons of sewage daily, which is the estimated "total flow" (T. 75) the sanitary engineer who designed the system anticipates from the development. Sewage generated by the development would flow to the plant, through a bar rack designed to remove rags and other large objects, and into aeration tanks where, over a 24 hour period, interaction with air and a biological mass would supply oxygen and cause the formation of biological floccules. The flocculant sewage would then move to a clarifier hopper. During its five hour stay there, solids which were not earlier segregated as the sewage moved over a weir into the clarifier, would be precipitated and removed. The clear, residual liquid would be pumped through one of two sand filters (each of which would also have granular activated carbon and be capable of filtering 100,000 gallons daily) into one of two chlorine contact chambers where a gas chlorinator would introduce chlorine for an hour. Under ordinary circumstances, the chlorinated effluent would then be pumped into one of two soakage trenches. The soakage trenches, each designed for use every other week, are to be gravel-filled ditches covered over first with felt paper, then with compacted fill. The gravel would lie at least one foot beneath the surface of the ground in a space ten feet wide and three feet deep stretching the 940 foot length of each soakage trench. Punctured like sieves, two six-inch PVC pipes would run through the gravel, sweating effluent from their pores. There is also a plan to dig a percolation pond or grassed swale five feet deep, 120 feet long and 80 feet wide near the wastewater treatment plant, which could serve as a receptacle for effluent, in case of "a 1:10 year storm or when the filters are down and/or if soakage trenches would need repair." Gar- Con's Exhibit 2-A. It would hold about 100,000 gallons. The solids caught by the weir, those extracted in the clarifying process, and those recovered from backwashing the filters would serve as catalyst for the aeration process as needed. Excess sludge, about 3,000 pounds monthly, would undergo "aerobic digestion," before being removed to Brevard County's Central Disposal Facility on Adamson Road, for disposal there. Gar- Con's Exhibit No. 7. Primary and secondary drinking water standards would be met by the effluent as it left the plant (although the engineer who designed the system would not drink the effluent himself), except that, from time to time, nitrate concentrations might reach 12 milligrams per liter, and except in the "event that a homeowner might put some type of [inorganic toxic or carcinogenic] material into the sewer system." (T. 86) The biological oxygen demand (BOD) would be ten milligrams per liter; suspended solids would probably amount to about five milligrams per liter; pH would probably be slightly under seven; nitrates would average approximately eight milligrams per liter but would "peak out at certain times during the year, for maybe extended periods up to two months, at twelve milligrams per liter," (T. 80); and there would be a chlorine residual after 60 minutes of two milligrams per liter. AMBIENT WATERS There would be no direct discharge to the Atlantic Ocean, Indian River or any other body of surface water, nor would any indirect effect on surface waters be measurable. No body of surface water lies within 500 feet of the site proposed for the plant and soakage trenches. Potable groundwater underlies the site; the groundwater table slopes toward the Atlantic Ocean, 9.5 to 12.5 feet below ground. "[D]uring the traditional rainy season," Gar-Con's Exhibit 2B, Attachment, p.3, the groundwater may rise to within seven feet of the surface. The PVC pipes in the soakage trenches are to be placed two and a half feet deep. As effluent percolated through the sandy soil, there would be "mounding" of the groundwater underneath the soakage trenches, and dispersal in all directions. Surface flow is to be diverted from the soakace trenches so that only rainwater falling directly on them would percolate down through the gravel beds. Taking soil characteristics into account, and assuming a "water table depth" of 20 feet, an engineer retained by Gar-Con predicted that "the maximum expected groundwater rises beneath the east and west trenches are 2.4 and 2.1 feet, respectively under a loading of 100,000 gpd for a period of 7 days." Gar-Con's Exhibit No. 3. The water table depth, "the height, the top of the groundwater from the first restrictive layer," (T. 172), is probably more like 40 feet than 20, which accounts in part for the "conservatism" of the mounding predictions. Under very severe weather conditions (a 100 year storm), groundwater would rise as high as the bottom of the trenches making them unavailable to receive effluent, but the effluent would not be forced above ground. In a 100 year flood, water would be expected to rise to seven feet above mean sea level. Under such conditions, people could be expected to evacuate the area. In a 25 year storm, the system could be expected to continue to function. Groundwater to the north and east of the proposed site was sampled, and the samples were analyzed. The water to the north had 380 milligrams of chlorides per liter and the water to the east had 450 milligrams of chlorides per liter. As it left the proposed treatment plant, the effluent would contain approximately 150 milligrams of chlorides per liter. SOUND AND LIGHT Lights like those used as street lights are to be installed at four places in the wastewater treatment plant. A timer, which can be overridden, would turn the lights on at dusk and off at eleven o'clock at night. The lights would illuminate the plant adequately. Pumps would move sewage to and through the proposed plant. Most of the pump motors would be submerged and unable to be heard. Two electric blowers, a flow meter and a totalizer would also have electrical motors. The blowers and the blower motors are to be equipped with insulated fiberglass covers and the blowers would also have intake and double outlet silencers. Four feet from the plant the noise of the motors would be comparable to that of a home air conditioning unit. At the nearest residence the noise level would scarcely exceed background noise. At hearing, Gar-Con revised its application and agreed to install an emergency generator which would also be encased in insulated housing and is to be equipped with a muffler. AEROSOL AND ODOR Unless the proposed plant loses electric power for 24 hours or longer, no offensive odors would emanate from it. The bar rack and weirs would be regularly hosed down. Against the possibility of a power failure, Gar-Con agreed at hearing to install permanently an emergency generator with sufficient capacity to keep both the wastewater treatment plant and the water treatment plant it plans to build operable. No aerosol drift is foreseen. The surface of the liquid In the aeration tanks would be 1.4 feet below the top of the rim. Walkways four feet wide along the inside perimeters of the aeration holding tanks would prevent dispersal of most of aerosol. A decorative hedge around the treatment plant, which would eventually be 15 feet high, is a final fail-safe. WELLS To the north are two shallow wells within 500 feet of the site proposed for the wastewater treatment plant. Both wells belong to Kel Fox, who wrote Gar-Con that he had no objection to their proposed wastewater treatment facility in light of Gar-Con's agreement to furnish drinking water to existing facilities on his property and reimburse him expenses incurred in disconnecting the two shallow wells. Gar-Con's Exhibit 2E. There is a deep well within 500 feet to the south. DER and Gar-Con have entered into the following stipulation, dated September 2, 1983: Existing Wells. Prior to the operation of its waste water treatment plant, Gar-Con will offer to supply drinking water at a reasonable cost to owners of property on which are located operational or approved shallow drinking water wells that are within 500 feet of Gar-Con's land application site. Gar-Con will make this offer to all such owners known to it prior to the operation of its plant. Gar-Con will further offer to provide reasonable compensation to such owners to disconnect their shallow wells. Gar-Con will endeavor to arrange for provision of drinking water to these owners and the disconnection of those wells prior to the operation of its plant. Future Wells. Should nearby individual (non-corporate) property owners propose to construct shallow drinking wells located within 500 feet of Gar-Con's land application site after Gar-Con begins operation of its waste water treatment plant, Gar-Con also will offer to supply them with drinking water at a reasonable cost and to provide reasonable compensation to them to disconnect those wells. However, Gar-Con shall have no obligation to make any such offer to owners of future wells if sampling of monitoring wells located at or near its external property line indicates that the groundwater meets the primary drinking water standards and, after July 1, 1985, the secondary drinking water standards listed in Florida Administrative Code Rule 17-22.104. Gar-Con agrees to record a master notice of restriction barring future owners of lots within the Ocean Way development, which are owned by Car-Con at the time of permit issuance, from installing shallow drinking water wells on such property or otherwise using the shallow aquifer beneath their property as a source for irrigation or for potable water, so long as use of the proposed sewage disposal system continues, and the Department has not found that this restriction is unnecessary. This restriction, which shall be a covenant running with the land, further shall require future owners to purchase water from Gar-Con or any successor owner of the development's water system if Gar-Con or the successor provides water service. These restrictions also shall be contained in all other appropriate documents of title. In addition, Gar-Con plans to create a non-profit water and sewer association to own and control the development's water and sewer system. Gar-Con will include in the Articles of Incorporation of this association a requirement that all property owners served by the system must be members of the Association. Gar-Con is entitled to a zone of discharge extending to its current property line with the exception that the zone of discharge shall not include the area contained within a 100' radius of Gar-Cons's proposed water supply wells. DER Staff concurs that the above conditions, in conjunction with the sewage treatment and disposal system and the groundwater monitoring program proposed by the applicant, to meet the requirements of Chapter 17-4, F.A.C. will provide reasonable assurance that existing and future off-site and on-site property owners will be protected from any adverse effects that might result from the operation of the proposed sewage treatment disposal system. Petitioner's Exhibit No. 10. There are to be a half dozen monitoring wells to allow sampling of the groundwater at strategic points in the shallow aquifer. NATURAL RESOURCES Turtles nest in the general vicinity but off the site of the proposed project. Construction and operation of the proposed waste water treatment facility would have no impact on the turtles apart from making it possible for more people to live closer to where they nest.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit: "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation." At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED. Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1981. COPIES FURNISHED: Valerie Fravel Corporate Counsel General Development Corp. 1111 South Bayshore Drive Miami Florida 33131 Alfred J. Malefatto Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
