The Issue This case involves a challenge to St. Johns River Water Management District’s (District or SJRWMD) intended issuance of an Environmental Resource Permit (ERP) granting the City's Application No. 4-127-97380-1, for the construction and operation of a surface water management system for a retrofit flood-relief project known as Drysdale Drive/Chapel Drive Drainage Improvements consisting of: excavation of the Drysdale Drive pond (Pond 1); improvement to the outfall at Sterling Lake; and the interconnection of Pond 1 and four existing drainage retention areas through a combination of pump stations and gravity outfalls (project or system). The issue is whether the applicant, the City of Deltona (City or Deltona), has provided reasonable assurance the system complies with the water quantity, environmental, and water quality criteria of the District’s ERP regulations set forth in Chapter 40C-4, Florida Administrative Code,1 and the Applicant’s Handbook: Management and Storage of Surface Waters (2005) (A.H.).2
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to the City of Deltona an ERP granting the City's Application No. 4-127-97380-1, subject to the conditions set forth in the Technical Staff Report. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006.
The Issue Respondent Jacksonville Shipyards, Inc. (JSI) filed a permit application with the State of Florida, Department of Environmental Regulation, (DER), for permission to conduct maintenance dredging in a basin associated with its shipyard operation. This permit application was made in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. In the face of DER's statement of intent to grant this permit, George H. Hodges, Jr., (Petitioner), has petitioned in protest. Therefore, the issues to be considered in this dispute concern the entitlement of JSI to the grant of an environmental permit for maintenance dredging of its shipyard basin.
Findings Of Fact DER is an agency of the State of Florida charged with the environmental protection of waters within Florida. Its authority includes regulatory powers announced in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. Certain activities involving state waters require permission from DER before they be lawfully undertaken. Among those activities are dredge projects such as contemplated by JSI in its pending request to be allowed to maintenance dredge as much as 66,000 cubic yards of material per year from its shipyard basin located in Jacksonville, Duval County, Florida. This is an undertaking which is envisioned by Chapter 403, Florida Statutes, related to the permit responsibility of DER. It is specifically addressed by Rule 17-4.28, Florida Administrative Code, in which is found the statement of permit requirements for dredge and fill activities. JSI, the applicant, operates a facility known as Bellinger Shipyard, which is engaged in the repair and maintenance of commercial and naval vessels. This enterprise includes the drydocking of vessels upon which repairs are effected, through the use of several drydock chambers in shipyard basin. In the course of the maintenance, a technique known as "gritblasting" is employed. The purpose of this "gritblasting" is to clean the ships in anticipation of repainting. On occasion the "gritblasting" would remove all coats of paint down to the metal finish of the ship. The paints being removed contain antifouling and anticorrosive materials. Those materials have, among other properties, the ability to repel marine organisms, causing their mortality. The "gritblasting" process utilizes a material known as "black beauty." This is a waste product from firing power plant boilers and it contains iron, silica, aluminum, titanium, magnesium, lime, penta oxide (P2O5), sodium oxide, sulfur trioxide and potassium oxide. The "black beauty" is applied through the use of a pressurized system which forces the material onto the treated surface under pressure of 70 to 85 pounds per square inch. After the preparation is made, vessels under repair are repainted, and similar paint with antifouling and anticorrosive properties is reapplied. During the "gritblasting" process, dust is generated and a portion of that material finds its way into the water within the basin. Other particles being removed drop to the deck surface of the drydock. When paint is reapplied to the surface of a vessel undergoing repair, it is given the opportunity to dry and the vessel is then refloated and removed from the drydock. To do this, the drydock itself is submerged. When the vessel has exited the drydock facility, the drydock resurfaces and is allowed to dry out. The material which has been removed from the surface of the repaired vessel is then shoveled into containers and transported to an offsite sanitary landfill for disposal. This material removed includes the "gritblasting" compound and paint which has been stripped from the surface of the vessel. When the drydock is submerged following vessel servicing, the inference can be drawn that a certain amount of the materials on the drydock deck surface will be introduced into the water within the basic before the drydock is resurfaced. The arrangement for refloating the vessel is the reverse of the technique employed in lifting the vessel out of the water for maintenance. When the vessel is brought in for service, it is guided into a submerged drydock. Water is then pumped out of the hollow drydock walls and deck to raise the vessel out of the water, allowing access to the vessel, which is completely above the water surface, as is the drydock work deck. The basin in which the business activities of JSI take place is located on the western shore of the Intercoastal Waterway. The Waterway and basin are part of an estuarine system, as these water bodies are tidally influenced. The basin and the Intercoastal Waterway constitute Class III waters of Florida. The configuration of the basin is as found in JSI Exhibit 16, an aerial photograph of the site. Moving from east to west within the basin, it is approximately one thousand feet from the Intercoastal Waterway to the back of the basin in its western-most extremity. In the back area of the basin the north- south axis is 250 feet. The interface between the basin and the Intercoastal Waterway on the eastern reach north-south axis is approximately 625 feet. There are no obstructions to the confluence of the Intercoastal Waterway and the eastern side of the repair basin. The southern-most reach of the basin is approximately 350 feet in length running east to west. On the eastern side of the basin there is a pier area which is roughly 360 feet north-south by 60 feet east-west. As described before, the pier is not a solid structure extending to the bottom of the water. Thus, water can be exchanged between the basin and the Intercoastal Waterway beneath the pier. JSI had acquired the Bellinger Shipyard in 1974. At that time environmental permits had been issued allowing for the maintenance dredging of the basin. These permits were valid through 1975. In 1975, JSI obtained a dredge and fill permit from the Florida Board of Trustees of the Internal Improvement Trust Fund, as well as a dredge and fill permit from the United States Corps of Engineers. These permits were for a ten-year period. They allowed maintenance dredging in the amount of 66,000 cubic yards per annum and for the disposal of the dredged material in an EPA-approved offshore site. In 1980 DER confirmed the dredge and fill permit that had been obtained from the Florida Board of Trustees. This permit by DER required JSI to conduct monitoring of turbidity during dredging, but did not require employment of turbidity screens. In 1979 the Army Corps had required JSI to conduct bioassay analysis in furtherance of the federal dredge and fill permit. In the face of the results obtained in that bioassay analysis, the Army Corps continued the dredge and fill permit to JSI dating from August 14, 1980. A subsequent extension of the federal permit was given through August 14, 1986. Contemporaneous with the present permit application before DER, JSI has requested further permission from the Army Corps related to the ability to excavate as much as 66,000 cubic yards of material on an annual basis. JSI has not been cited by any regulatory agency related to water quality violations associated with its dredging activity. The present DER permit application is for renewal of the 1980 Permit No. 16-21380 and is being processed under the DER File No. 161071139. This application for permit renewal was submitted on July 16, 1985. The application requests permission to maintenance dredge for a period of ten years. If granted, it is the intention of the applicant to use a closed clam shell bucket to excavate the material in the basin. This choice is in furtherance of the suggestion of DER and is a departure from the applicant's initial intention to use an open bucket to excavate. JSI also intends to employ turbidity curtains during the dredge activities. The applicant intends to transport the dredged material to the aforementioned EPA disposal site which is at sea. In doing so, a hopper barge is propelled by a towing vessel. Both the barge and towing vessel are inspected and certified by the United States Coast Guard. The crews involved in the transport of the material are qualified and licensed. In the past, transport of the material has been done under fair weather and smooth sea conditions, and it is intended that the transportation be done in that same setting if the permit is granted. The barge would not be loaded fully, thereby minimizing spillage. This was the arrangement in the past. The United States Coast Guard will be apprised of the departure time of the voyage in transport of the material, certain activities within that transport and upon return. The hopper barge has a bottom dump which is closed during transport and is opened at the bottom in disposing the dredge material. After satisfying DER about its proposal, JSI was informed that DER intended to grant the dredge permit requested. When Petitioner, George H. Hodges, Jr., the owner of real property adjacent to the site of the project, learned of the stated intention to grant the maintenance dredging permit, he offered a timely petition in opposition to the proposed agency action. This property of Petitioner is in Jacksonville, Duval County, Florida. It is located north of the JSI property at issue. Petitioner's real property is connected to the Intercoastal Waterway. Petitioner has filed this action in opposition to the grant of the permit upon the expressed belief that the dredging activity will cause pollution at his property. In particular, it is JSI's intention at various times in the calendar year to do maintenance dredging in the entire basin. In addition to using a closed clam shell bucket, a system of turbidity barriers or curtains will be employed in segmented dredge areas. Those several locations within the basin which are cordoned off with the turbidity curtains are as depicted in JSI's Exhibit 9 admitted into evidence. The design maintenance depths for the dredging project are set forth in JSI's Exhibit 4 admitted into evidence. They vary from -17 to -37.5 feet, with the greatest depth being contemplated under drydock number 1 in the northwestern corner of the basin. Near the Intercoastal Waterways the depth sought is -17 feet, transitioning to -21.5 feet moving toward the back of the basin at the western extreme and outside of the area dredged beneath drydock number 1. The depths sought under drydock numbers 2 and 3 are -26.5 feet and -20 feet respectively. These desired elevations correspond to conditions at mean low water. The tidal range in the Intercoastal Waterway adjacent to the basin, which would promote an influence in the basin proper, is in the neighborhood of 4-foot intervals, with two tidal cycles a day. This would mean, as example, that at the high tide range, the shallowest design depths for dredging of -17 feet become -21 feet in the transition from mean low water to mean high water. Those 4-foot variations would pertain to the other design depths contemplated in the dredging as described in the preceding paragraph as well. The turbidity barriers contemplated for use will extend from the surface through the water column to depths near the bottom. See JSI Exhibits 4 and 9. It is desirable, according to Dr. Gregory Powell, witness for JSI, a reliable expert in describing the effectiveness and use of turbidity curtains, to have those curtains extend to an area just above the bottom. Dr. Powell's education includes a Masters Degree in coastal and oceanographic engineering and a Ph.D. Degree in engineering mechanics, with emphasis on coastal and oceanographic engineering. In consideration of his remarks, under the influence of high tide there could be as much as a 4 foot gap between the curtain and the bottom. Powell and other experts who offered testimony agreed that turbidity screens can have effectiveness in areas of low current velocity, assuming the proper installation, maintenance and extension to a location near the bottom of the water body. If mismanaged, turbidity screens are not effective in controlling turbidity. Moreover, they are less effective in areas where significant current velocities are experienced. This would include the circumstance in which a foot and a half or more per second of flow was being experienced, according to Dr. Powell, whose opinion is accepted on this point. He also indicated that the quiescent areas in the basin, toward the back of the basin or western dimension of the basin, would show a flow regime in a rate of one centimeter per second. This expression is credited. Although, as described by Dr. Powell, the currents in the Intercoastal Waterway are moving at a rate approximating nine feet per second on ebb time at the bridge located on the Intercoastal Waterway to the south of the project site, these current velocities are not expected in the area where the dredging is occurring. Dr. Powell is correct in this assessment. As he describes, and in acceptance of that testimony, eddies from the current from the Intercoastal Waterway at peak flood tide could come into the basin and temporarily show velocities of one foot per second; however, these velocities are within the acceptable range of performance of the turbidity barrier. Dr. Powell's conclusion that wind would have no significant effect on the current velocity, given the depth of this basin, is also accepted. The remaining flow regime in the basin is not found to be a detriment to the function of the turbidity barriers. The use of turbidity curtains in this project is not found to be a "placebo" to placate DER as suggested by Erik J. Olson, engineering expert who testified in behalf of the Petitioner The monitoring that is intended in the course of the dredging activities would call for examination of background turbidity levels at three sites in the Intercoastal Waterway prior to commencing of dredging and twice daily at each of these sites during dredging. Should a violation of state water quality standards for turbidity be detected, dredging will cease until the problem with turbidity can be rectified. To provide ongoing assurances of compliance with water quality standards, JSI will analyze the sediment in the basin for the parameters of cadmium, copper, aluminum, lead, mercury, oil and grease every two years. Dr. Powell, expert in engineering and recognized as an expert in the matter of transport of the resuspended sediment associated with the dredging, as well as David Bickner, the project review specialist for DER, believe that the use of the closed clam shell bucket technique and employment of siltation screens or barriers, together with turbidity monitoring, will effectively protect against turbidity violations in the Intercoastal Waterway adjacent to the basin. This opinion is accepted. Bickner brings to his employment a Bachelor of Science degree in biology and a Master of Science degree in ecology. Bickner identified the principal concern of DER related to this project as the possibility of release of resuspended sediments into the Intercoastal Waterway. With the advent of the techniques described in the previous paragraph, only minimal changes in background conditions related to turbidity are expected. Although there would be turbidity violations within the confines of the areas where the dredging occurs, the principal influence of that turbidity will be confined in those regions. This speaks to dredge areas I, 2 and 3. According to Bickner, whose opinion is accepted, the turbidity changes within the dredge areas in relationship to background conditions do not require a mixing zone permit, nor do they constitute a basis for denial of the permit. As alluded to before, and as described by Dr. Powell, the basic nature of the basin in question is one of quiescent conditions with low current velocity. He points out that the layout of the basin is such that it is a sediment trap allowing the deposit of silt, in particular in the deeper sections of the basin near the western side. The greatest influence by resuspension of sediment in the dredging activities can be expected in the back portions of the basin and it is in this area that the silt barrier can be expected to be most efficient, based upon Powell's remarks. Dr. Powell indicated that there is the expectation of increased efficiency in turbidity control when a closed clam shell bucket is used, as opposed to the open style of clam shell bucket. Those efficiencies range from 30 to 70 per cent. There is some risk of increased turbidity near the bottom of the water column in the use of a closed clam shell bucket, and for that reason the applicant should monitor the activities of the operator of the excavation machinery to guard against inordinate disturbance of the area being excavated. On balance, the closed clam shell bucket is a superior technique to the open style of clam shell bucket excavation when those alternatives are compared. As Dr. Powell explained, the segmentation of the dredge area allows the resuspended sediment to be confined in more discrete circumstances and to be controlled. The location of the silt barriers behind the pier structure guard against the effects of eddying. The silt barriers can be properly anchored and will not be unduly influenced by current velocity. Dr. Powell believes that the use of silt barriers, taking into account a low velocity of current in the basin, and the proper deployment of the siltation screen could bring about a reduction of the resuspended solids by 80 to 90 per cent on the outside of the barrier. To calculate the influence or the environmental significance of that remaining 10 to 20 per cent of resuspended solids at the Intercoastal Waterway, Dr. Powell testified that the suspended load behind the silt curtain resulting from the dredging is expected to average from 100 milligrams per liter to a peak amount of 500 milligrams per liter. He believes that, depending on which methods of calculation is used, the dilution factor in the Intercoastal Waterway ranges from 330:1 to 600:1. In using an environmentally conservative assessment, that is 80 per cent effectiveness of the silt curtain with a 330:1 ratio, Powell calculated that the release of resuspended materials into the Intercoastal Waterway would be approximately .3 to 1.5 milligrams per liter. This translates to less than 1 NTU against background conditions. This result would not exceed the 29 NTU limit against background that is described as the standard for turbidity control. Dr. Powell's opinion of turbidity results based upon the dredge activity is accepted. There is exchange of water between the basin and the Intercoastal Waterway and to accommodate this influence, the turbidity curtains would be placed in such a fashion that they would not compete with the ebb and flow of the tide. Dr. Powell's assessment of the circumstance in describing the effectiveness of turbidity barriers takes into account the tidal conditions and the inappropriateness of trying to have the silt curtains prohibit the flow conditions during these tidal changes. In order to promote maximum effectiveness of the turbidity barriers during the entire course of excavation of materials, the length of, the silt screen must be adjusted as desired elevations are approached. Erik J. Olson is an expert in civil engineering with an emphasis on hydraulics and the holder of a Masters Degree in coastal and oceanographic engineering. As alluded to before, he questions the validity of the use of siltation barriers as an effective protection against the implications of turbidity. He properly points out that the curtains will not extend to the region of the interface of the basin and the water column at all times. He describes the exchange of water between the basin and the Intercoastal Waterway, to include the unrestricted sediment transport beneath the turbidity curtain. He believes that wind can cause changes in current velocity as great as .2 foot per second, activities within the basin an additional .3 foot per second, and eddying .3 foot per second. All of these taken together do not exceed the range of effective response of the turbidity barriers. On balance, Olson's criticism of the benefit of turbidity curtains is unconvincing. Arlynn Quinton White, Jr., who holds a Bachelor of Science Degree, a Master of Science Degree in biology and a Ph.D. in matters related to marine biology, offered his testimony in support of Petitioner. He believes that as much as 2 to 3 per cent of the resuspended sediment related to the dredging activities would reach the Intercoastal Waterway under the best of conditions. It is difficult to translate that testimony into a measurement of changes in turbidity levels against ambient conditions in the Intercoastal Waterway. In any event, as already indicated, the changes in turbidity levels are not expected to exceed 29 NTU against background. It is evident that the turbidity curtains are necessary and their proper use must be assured to protect against problems associated with turbidity and the implications of the constituents of the resuspended particulate matter related to possible toxicity. Therefore, the close monitoring suggested in the statement of intent to grant the dredge permit is viable. Another matter associated with the implications of turbidity pertains to the fact that when the dredge material has been resuspended, as much as two days could pass before the basin returns to background conditions, given the high content of silt with its attached metals. This becomes significant given the uncertainty of the location of the dredge equipment during the course of excavation, i.e., inside the barrier or outside the barrier. Final choice about the placement of the dredge equipment will have to be made at the time of the excavation. Should the dredge equipment be inside of the cordoned area while excavation is occurring, it would be necessary to allow turbidity conditions to achieve background levels before opening up the barrier for the exit of the hopper barge which contains the excavated material. Otherwise, the estimates as to the influence of the dredging activities in the Intercoastal Waterway are unduly optimistic. Likewise, if the excavation platform is placed outside of the work site, that is to say, on the outside of the siltation curtain, extreme caution must be used to avoid spillage of the excavated material when being loaded onto the hopper barge. The occasions in which the excavation is being made from this side of the barrier should be minimized. These safeguards are important because any changes in sediment loading within the Intercoastal Waterway promote an influence in the area immediately adjacent to the basin and other sites within the Intercoastal Waterway as well. The subject of the use of a hydraulic dredge as an alternative to excavation by use of a closed clam shell bucket was examined in remarks by the witnesses appearing at hearing. Olson believes that there are hydraulic dredges which can achieve the design depth contemplated by the project and which equipment could fit inside the basin area. This is contrary to the opinion of witnesses for the applicant and DER who do not believe that the hydraulic dredging equipment which would be necessary to achieve the design depths would fit into the basin area. On balance, the record does not establish that such equipment with the appropriate capability and size does exist. More importantly, the proposed method of excavation is environmentally acceptable when examined in the context of the permit sought in this case. Finally, it was not essential for the applicant to make a detailed investigation of availability of hydraulic dredging equipment and it is not determined that failure to make this investigation warrants the denial of the requested permit. Although an hydraulic dredge is more desirable from the standpoint that it causes less turbidity through resuspension of sediments, it is not the only plausible method of excavation in this instance. Raymond D. Schulze testified in behalf of JSI. He holds a Bachelor of Science Degree and a Master of Science Degree in environmental engineering sciences. In particular, he established the fact that the amount of resuspended solids that would be introduced into the Intercoastal Waterway associated with the dredging activity would not result in the smothering of organisms or to clogging of gills of fish. In addition to the possible problems with turbidity, there is the additional issue of violation of water quality standards in the several parameters associated with concentrations of metals in the water column within the basin and in the sediments or related parameters such as dissolved oxygen and biological integrity. Having considered the testimony, the facts do not point to water quality violations for any parameters occurring in the Intercoastal Waterway as a result of the dredging. To arrive at this factual impression, the testimony of Dr. Pollman and Schulze is relied upon. Water quality sampling done by JSI in locations within the basin and in the Intercoastal Waterway, that by Dr. Pollman and Schulze, supports their impression of the acceptability of the dredge activities. This water quality data was admitted as JSI's Exhibit 18. Additionally, the field conditions existing at the time of testing, to include water temperature, weather conditions, tidal cycle, ph and dissolved oxygen were also made known. This water quality data and other information examined by these witnesses points to the fact that no increases in concentrations of metals are occurring within the Intercoastal Waterway as a result of the business activities of the applicant, nor are they to be expected while dredging operations are under way. Dr. Pollman correctly identifies the fact that there will not be significant degradation of water quality, above DER's minimum standards, related to the Intercoastal Waterway based upon the dredging activities within the basin, dealing with the water quality parameters of mercury, zinc, cadmium, chromium, lead, aluminum, iron and copper, substances which are within the basin. Dr. Pollman also examined sediment data collected by DER, and that data tended to confirm his assessment of the influences of the dredging activity related to these parameters. Dr. Pollman does not believe that metal concentrations contained in the sediment of the basin are leaching into the water column in quantities sufficient to cause violation of water quality standards. His opinion is accepted. Pollman had collected water quality samples in the two locations where the greatest siltation rate was expected and as a consequence the greatest concentration of metals would be expected. The water quality samples were taken at several depths to reach an opinion as to the matter of leaching of metals into the water column and the possibility of those metals dissolving in the water column. If leaching had been occurring, a concentration of metals expressed as a gradient would be expected. The greatest concentration in this instance would be near the sediment interface with the water column. No such gradation was detected and the idea of leaching was ruled out. Bickner's testimony established that testing for the exact amount of iron present at the dredge site was not required, given the nature of the iron source being introduced into the water within the basin. Bickner did not find that type of iron to be toxic. As stated before, Pollman agrees that no violation of state water quality standards as a result of the presence of iron associated with the maintenance dredging should be expected. There is some data which shows water quality violation for mercury in the basin and the Intercoastal Waterway. Subsequent water samples collected by Schulze in the westerly portion of the basis did not show detectable levels of mercury. Moreover, data taken by Pollman and Schulze and compared with the DER sediment data shows that the concentration levels of mercury are greater in the Intercoastal Waterway than in the basin, thereby suggesting that there is no concentration gradient for mercury which would lead to the belief that the basin contributes to the amount of mercury found in the Intercoastal Waterway, nor is the mercury believed to be leaching into the water column in the basin. The explanation of the differences in measurements of the amount of mercury in the basin, depending upon the point in time at which analysis was made, may be attributable to a natural phenomenon, given numerous sources of mercury within the environment. Whatever the explanation of these changes, Dr. Pollman does not believe that the release of mercury associated with the resuspended sediments that may find their way into the Intercoastal Waterway would show a violation of the state water quality standard for mercury in that water body and his opinion is credited. Data collected by Pollman and Schulze did not show water quality violations for aluminum and the DER test data described before indicated aluminum levels lower in the basin than in the Intercoastal Waterway. Some data collected by Technical Services, Inc., an environmental consulting firm in Jacksonville, Florida, which was reviewed by Pollman, Schulze, and Bickner showed a substantial violation of the water quality standard related to aluminum in sediment sampling that was done. The origin of that amount of aluminum found on that occasion was not clear. It is possible, as described by Bickner, Pollman and Schulze, that the level detected In the Technical Service report could have occurred based upon natural phenomena such as storm water runoff from uplands. Bickner also questioned the findings of Technical Service and felt like the determination might be influenced by some intervening circumstance which would promote the need for re-analyzing that parameter. Whatever the explanation of the findings in the Technical Service report, it does not point to any water quality violation of the standard related to aluminum based upon the dredging activities, given the limited amount of total suspended solids that would be introduced into the Intercoastal Waterway. Schulze, in his assessment of the implications of metal concentrations in the sediment transported to the Intercoastal Waterway, did not find them to cause concern about toxicity to marine life in the Intercoastal Waterway. This point of view is accepted. In trying to understand the implications of metal concentrations, Schulze believed that the biologically available fractions of those metals in the sediment is not very high, and when the dilution of the sediments which occurs in these circumstances is examined, no toxicity is expected. Moreover, as Dr. Pollman described related to the parameter aluminum, it is not a toxic material at the ph levels found in the basin, and the resuspension during dredging will not cause it to gain toxicity. This opinion of Dr. Pollman is supported by Bickner and Schulze. The opinion of Dr. White that the amount of aluminum, copper and zinc within the sediment found in the basin would eventuate in the violation of water quality standards for those parameters when introduced into the Intercoastal Waterway is rejected. The information available to Pollman, Schulze and Bickner which describes their opinion about water quality standards was sufficient to reach an opinion, the position of Petitioner's witness Sanford Young, holder of a Bachelor of Science Degree in civil engineering and a Master of Science Degree in zoology notwithstanding. As Bickner indicated in his testimony, it is essential that an applicant give reasonable assurances of compliance with all parameters listed in Chapter 17-3, Florida Administrative Code, dealing with water quality. However, this does not mean that testing must be done for each parameter set forth in that chapter. Reasonable assurance has been given that water quality parameters as identified in that chapter will not be violated. Bickner indicates the biological integrity standard is not one of concern in that given the nature of business operations within the basin, there is no expectation of a stable benthic community which might be disturbed by dredging. From the remarks of Schulze, there is no prospect of danger to benthic communities within the Intercoastal Waterway. These impressions by Bickner and Schulze are accepted. Under the facts of the case, the failure of the DER permit appraisers to discover benthic organisms in the sample grabbed at the site is not unexpected. There is also some question about whether that sample is representative of the circumstance at the site, given the limited sampling. On the topic of normalization of the DER data which was described in the course of the hearing and is identified by Dr. Pollman, the value of that information is seen as establishing the relative quantities of certain metals within the basin as compared with other sites throughout the Intercoastal Waterway. Twenty-one different locations were involved in this analysis. Concentration ratios using aluminum to normalize the data are as reflected in JSI's Exhibit 17 admitted into evidence. The significance of this information as it grossly describes whether the basin routinely contributes to increases in the amounts of these metals within the Intercoastal Waterway. Overall, basin activities are not shown to have promoted such an outcome. This normalization comparison does not address the issue of site specific water quality violations; however, no such violations are expected associated with the dredging activities within the basin as it relates to violations in the adjacent Intercoastal Waterway. Schulze had made sampling related to dissolved oxygen within the basin and the Intercoastal Waterway. As Schulze describes, the levels of dissolved oxygen seem to be at their lowest point just prior to the dawn hours. Sampling which he did was done at 5:00 a.m. in order to obtain the lowest dissolved oxygen readings. Three sites were sampled within the basin and an additional site was sampled in the Intercoastal Waterway. Readings were taken at varying depths at each site to gain an impression of the overall water column. The mean reading for the circumstance was in excess of the required range for state water quality, that is 4.0 per million. Having considered the evidence, no problems with dissolved oxygen are expected in that deficit contribution is in the range of .1 milligram per liter, per Pollman. In addition, Dr. Powell, through modeling, examined the implications of long-term dredging activities on the topic of dissolved oxygen. He employed field data gathered by Schulze in this assessment. This modeling established that decreases in dissolved oxygen levels would range from .1 to .15 milligrams per liter. Given the average of 4.5 parts per million oxygen in the basin at present, the incremental decreases in dissolved oxygen levels related to the dredging would not pose a problems with state water quality standards for dissolved oxygen other than short-term effects in the immediate vicinity of the dredge area, which is an acceptable deviation. As the Petitioner urges in its fact proposal, a 1983 report of Technical Services, Inc., JSI Exhibit 4, and a 1985 report of that firm, JSI Exhibit 7, were made available as part of the application. Officials within Technical Services, Inc. did not appear at the hearing and offer testimony related to the specific findings found in those reports. This information was used by the experts who did testify on behalf of the applicant, in particular Dr. Pollman, as data to question, his assumptions made about the implications of the project in terms of water quality concerns. Pollman also utilized DER data taken from a source known as Storette, and this pertains to the 21 sampling stations involved in the preparation of JSI Exhibit 17, the graphing document related to concentrations of various metals. Again, this was in furtherance of the basic underlying opinion which Pollman had about the project. The Storette data as such was not offered into evidence. Witnesses for the Petitioner, namely Olson and White, were aware of the two reports of Technical Services, Inc. and the use of the DER Storette data and offered their criticism of the project taking into account this information. Petitioner points out that there is no indication as to how far below the sediment/water interface the Technical Services, Inc., and DER sediment samples related to reports of the consultant and the Storette information of DER were extracted. Therefore, it only reflected one portion of the sediment at a depth of extraction. A more complete understanding of the sediment characteristics would have been shown through a core sample, especially in the area to be dredged, but that understanding was not essential. The suggestion by the Petitioner that it was inappropriate to normalize data for purposes of describing the relative concentrations of the metals parameters is not accepted. The preparation of JSI's Exhibit 17 does not point to abnormally high amounts of aluminum, such that the use of aluminum as a known commodity in carrying out the normalization would be contraindicated. As identified by the petitioner in its proposal, sediment sizes within the strata found in the basin depicts higher percentage of silt and clay-size sediments in the back end of the basin with lesser amounts of the silt- and clay-size sediments in the southern reach of the basin and at the intersection of the basin with the Intercoastal Waterway. The smaller the particles, such as silt and clay, will remain suspended for a longer period of time and have a tendency to promote bonding with heavy metal. Nonetheless, this information does not change the impression that the turbidity barriers will be effective. The 1983 Technical Services, Inc., information related to the settling of resuspended sediment and similar information imparted in the 1985 report by that organization tend to confirm that approximately two days should be necessary to allow the area of excavation to return to background conditions related to turbidity. This is in corroboration of remarks by Dr. Powell. These time projections are not found to be inadequate when taking into account other factors such as tidal changes, boat traffic, other activities within the basin, wind and weather events. As White described, the antifouling properties of the paint involved in the business activity of the applicant can be expected to adversely impact any larval forms of marine organisms when introduced into the basin. Nonetheless, this toxicity is not expected to pose a danger to marine organisms in the Intercoastal Waterway given the percentage of resuspended sediment that will escape capture by the sediment barriers and the dilution factor before introduction of those resuspended sediments into the Intercoastal Waterway. Petitioner questions the acceptability of evidence of the findings set forth by E G & G Bionomics, a firm which performed an examination to determine existing diversity of benthic macroinvertebrates. Those results are reported in Petitioner's Exhibit 13, a 1980 report. They were not accepted as evidence of the specific findings within that report in that they were not the subject of discussion by persons who authored that report. The use was limited to corroboration of the opinion by Dr. Pollman and Schulze as to water quality considerations and they were not Crucial to their opinions. Moreover, it was not necessary for the applicant to perform a more recent bioassay in order to give reasonable assurance to DER concerning water quality matters or to establish the implications of the influence of contaminants within the sediment found in the basin related to benthic macroinvertebrates. The biological integrity of the basin area was at risk prior to the proposal for maintenance dredging. The relevant inquiry is the influence of the dredging activities on the biological integrity in the Intercoastal Waterway and those activities do not place organisms within the Intercoastal Waterway in peril. Any synergistic aspects of metals which act as toxins, for example, the increase in the aggregate value of the toxicity of zinc and cadmium, compared to their individual implications as toxins, will not present problems with water quality in the Intercoastal Waterway. Petitioner takes issue with the proposed disposition of the dredge material at an ocean site. While an appropriate upland disposal site would be preferred, it is not mandated. The approved EPA disposal site within federal jurisdiction is acceptable. Petitioner in its fact proposals found at paragraphs 36-39 (incorporated by this reference) points out violations of water quality standards for cadmium, mercury, and aluminum, and other possible violations of the standard for mercury. This information does not cause a change of opinion about the acceptability of the project in terms of reasonable assurances. There is no indication that oils and greases will present a problem related to water quality standards. The project is not contrary to public interest in that: (a) the project will not adversely affect the public health, safety, welfare or the property of others; (b) the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat; (c) the project will not adversely affect navigation or the flow of water or cause harmful erosion of shoaling; (d) the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; (e) the project will be of a temporary nature; (f) the project will not adversely affect significant historical and archaeological resources under the provisions of s. 267.061; (g) the project is in no other way contrary to the public interest. The purpose of this fact finding does not include the issue of whether there are ongoing violations of state water quality standards associated with the business activity of the applicant, that not being the subject of the hearing. In any event, the testimony of Dr. Pollman established that the operations of JSI are not causing water quality problems associated with the parameters of cadmium, copper, aluminum, mercury, lead, chromium, tin, zinc or iron related to the Intercoastal Waterway. The influences of the business activities associated with those parameters within the basin are not understood when the evidence presented is examined but are not found to be essential to the resolution of this dispute.
Recommendation Having considered the facts, and the conclusions of law, it is, RECOMMENDED: That DER issue a final order which grants the requested maintenance dredging permit in keeping with the safeguards described in the fact finding of this recommended order. DONE AND ORDERED this 16th day of October 1986 at Tallahassee, Florida. CHARLES C. ADAMS, 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 16th day of October 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0365 Having examined the proposed facts submitted by the parties, those proposals have been found as fact with the exception of the following which are distinguished: Petitioner's facts Paragraph 1: Subordinate to fact finding. Paragraph 2: The first sentence in this paragraph is rejected because the fact is not found within the indicated exhibits, nor can that fact be fairly inferred. Paragraphs 9, 10, 11, 14, and 15: Except for the last sentence in that latter paragraph are subordinate to facts found. Paragraph 15: The last sentence: Contrary to facts found. Paragraph 18: The last sentence: Subordinate to fact finding. Paragraphs 21, 22, 23, 24, 25 and 26: Subordinate to fact finding. Paragraph 27: Contrary to facts found. Paragraphs 28, 29, 30 and 31: Subordinate to fact finding. Paragraph 32: Not necessary to dispute resolution. Paragraphs 33 and 34: Subordinate to fact finding. Paragraph 35: Contrary to facts found. Paragraphs 40, 41 and 42: Subordinate to fact finding. Paragraphs 44, 45: Not necessary to dispute resolution. Paragraph 47: The first two sentences are information that is not sufficiently credible to allow application to the issues of the present case. Paragraphs 48, 49, 50 and 51: Not necessary to dispute resolution. Paragraph 52: Reject as fact. Paragraph 54: Contrary to facts found. Paragraph 55: Not necessary to dispute resolution. JSI and DER facts Paragraph 2: Pertaining to sentence 8 and the last phrase within sentence 11; Not necessary to dispute resolution. Paragraph 3: As to the first sentence, fourth sentence and seventh sentence; Not necessary to fact resolution. Paragraphs 4, 5 and 6 to the colon in paragraph 6: Not necessary to dispute resolution. The remaining portions of paragraph 6 are subordinate to fact finding. Paragraph 10: as to the last two sentences; Not necessary to dispute resolution. Paragraph 13: As to the next to the last sentence; Not necessary to dispute resolution. Paragraph 14: As to the fourth sentence and the last sentence; Not necessary to dispute resolution. Paragraphs 16, 17, 18 and 20: Subordinate to fact finding. Paragraph 21: Sentence 3 is subordinate to fact finding sentence 4 is not necessary to dispute resolution; sentences 5 and 6 are subordinate to fact finding. Paragraph 22: Next to the last sentence; Not necessary to dispute resolution. Paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38 and 41: Subordinate to fact finding, except the comments in the last sentence of paragraph 41 related to the operations of JSI causing or contributing elevated concentrations of parameters within the basin which is not found as fact. Paragraphs 42, 43 and 44: Subordinate to fact finding. COPIES FURNISHED: Kenneth G. Oertel, Esquire Chris Bryant, Esquire OERTEL AND HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Thomas M. Baumer, Esquire Deborah Barton, Esq. GALLAGHER, BAUMER, MIKALS, BRADFORD, CANNON AND WALTER, P.A. 252-5 Independent Square Jacksonville, Florida 32202 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Petitioner owns property which fronts on Lake Serena in Putnam County, Florida. Petitioner has submitted an application to the Respondent to dredge an area waterward of the ordinary high water line of Lake Serena and to place the dredged material on another area waterward of the ordinary high water line. Approximately 13,000 square feet of surface area presently dominated by wetlands vegetation would be removed by the dredging activity. The Petitioner proposes to cover the area where the fill is deposited with white sand. Petitioner proposes to use the area as a sandy swimming beach. During the summer of 1976 the Petitioner commenced work on his proposed project without receiving a permit from the Respondent. The Respondent, through its agents, stopped the work, and this permit application proceeding ensued. Lake Serena is a relatively pollution-free lake. Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding the lake serves an important and natural function in preserving the water quality of the lake, and the natural resources of the lake including fish and wildlife. The aquatic vegetation serves to filter runoff from uplands areas by assimilating nutrients that are in the runoff. Lake Serena is an oligotrophic lake. It is relatively low in nutrients. Aquatic vegetation in the littoral zone serves in part to maintain this condition. If the condition is not maintained the buildup of nutrients would cause an algae bloom, or buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen levels of the lake. The algae itself uses oxygen. The algae also kills oxygen producing plants which thrive on the bottom of the lake because the algae cuts off light to these plants. As the algae dies, it sinks and decomposes and uses up more oxygen. An algae bloom of this sort, and the resulting diminishing of oxygen levels in the lake would constitute pollution. Removal of aquatic plants in the lake's littoral zone will also serve to diminish fish populations in the lake. Small fish use such an area as a nursery ground where they can hide from larger predators. The action of aquatic plants on nutrients also serves as an initial step in the food chain for fish. The littoral zone which the Petitioner proposes to dredge and fill is apparently not in its natural state. There was no direct testimony respecting past dredging activity, but there was hearsay testimony to the effect that a previous land owner had dredged what amounts to a sand bar to serve as a boat slip. The entire area is now dominated by aquatic vegetation. It is a viable part of the littoral zone of the lake, and serves the beneficial purposes set out in Paragraph 2 above. There was no evidence offered at the hearing from which it could be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Removal of all such littoral zones would, however, drastically change the ecology of the lake, and render it polluted. Sixty percent of the lake's shoreline has already been denuded of vegetation. Although it cannot be determined how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. While it cannot be concluded from the evidence that the Petitioner's project would have any precisely measurable effect upon water quality and upon the natural resources of Lake Serena, it can be determined that the only effect the project could have would be negative. Petitioner has not established that the project would not have an adverse impact upon water quality and natural resources of Lake Serena. Petitioner has apparently concluded that there is no other means for him to have a swimming beach on his property than through the project as he has proposed it. Other witnesses testified, however, that his property includes a site for a swimming beach on land that is not dominated by aquatic vegetation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered denying the Petitioner's application for dredge and fill permit. RECOMMENDED this 8th day of April, 1977 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Mussoline, Esquire CLARK & MUSSOLINE 501 St. Johns Avenue Palatka, Florida 32077 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301 Mr. Jay Landers, Secretary Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Krista Howard,2/ is entitled to issuance of the Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, as announced by Respondent, Department of Environmental Protection, in the Consolidated Notice of Intent to Issue Environmental Resource Permit and Lease to Use Sovereignty Submerged Lands issued on July 28, 2017, and subsequently amended on January 11, 2018.3/
Findings Of Fact The Parties Petitioner Defenders is a Florida non-profit corporation that has been in existence since the mid-1980s or earlier. Defenders' primary purpose is to protect and preserve Crooked Lake so that it may remain an Outstanding Florida Water ("OFW") for all members of the public to use and enjoy. Defenders has more than 25 members who reside in Polk County, Florida. Its membership consists of approximately 100 family memberships, mostly comprised of persons who live on or near Crooked Lake. Petitioners Gerards are riparian landowners on Crooked Lake, whose property is located immediately adjacent to, and slightly to the northwest of, Respondent Howard's property. The Gerards' home address is 1055 Scenic Highway North, Babson Park, Florida 33827. Respondent Howard is the applicant for the Consolidated Authorization for the Dock. Howard's property, which is riparian to Crooked Lake, is located at 1045 Scenic Highway North, Babson Park, Florida 33827. Respondent DEP is the administrative agency of the State of Florida statutorily charged with, among other things, protecting Florida's water resources. As part of DEP's performance of these duties, it administers and enforces the provisions of chapter 373, part IV, Florida Statutes, and the rules adopted pursuant to that statute. Pursuant to that authority, DEP determines whether to issue or deny applications for ERPs. Pursuant to section 253.002, Florida Statutes, DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") and, in that capacity, reviews and determines whether to issue or deny, applications for approval to use sovereignty submerged lands.5/ DEP Review of the Application The Dock is proposed to be located on sovereignty submerged lands and in surface waters subject to State of Florida regulatory jurisdiction. Therefore, an environmental resource permit and a sovereignty submerged lands lease are required. On or about February 14, 2017, Todd Rickman, Howard's professional contractor who designed the Dock, filed an Application for a Sovereignty Submerged Lands Lease for Existing Structures and Activities6/ ("Application") with DEP's Southwest District Office, seeking approval to construct and operate the Dock. On or about March 15, 2017, DEP requested additional information regarding the project. Howard submitted the requested items, and the Application was determined complete on May 30, 2017. Notice of DEP's receipt of the Lease portion of the Application was provided as required by section 253.115. The comment period commenced on June 15, 2017, and ended on July 6, 2017. As previously noted, on July 28, 2017, DEP issued the Consolidated Notice of Intent, proposing to issue the Consolidated Authorization to construct and operate the Dock. On January 11, 2018, DEP amended the Consolidated Notice of Intent to accurately reflect the "clearly in the public interest" permitting standard for the ERP portion of the Consolidated Authorization, which is applicable to projects proposed in OFWs. Background Crooked Lake Crooked Lake (also, "Lake") is an approximately 4,247-acre freshwater lake in Polk County, Florida. It is an irregularly shaped karst lake roughly resembling an inverted "L," with the longer axis running north to south. It is located on the Lake Wales Ridge. Crooked Lake is designated an OFW by Florida Administrative Code Rule 62-302.700(9)(i)9.7/ The Lake is classified as a Class III waterbody pursuant to Florida Administrative Code Rule 62-302.400(15).8/ The elevations and bottom contours in Crooked Lake vary substantially throughout the Lake. Thus, water depths may, and generally do, vary substantially from one location to another throughout the Lake. The water levels in Crooked Lake fluctuate frequently and, at times, dramatically, depending on rainfall frequency and amounts. A graph prepared by Petitioners' Witness James Tully, using Southwest Florida Water Management District ("SWFWMD") historical water level data for Crooked Lake measured in National Geodetic Vertical Datum of 1929 ("NGVD") shows water levels historically fluctuating from as low as approximately 106 feet in or around 1991, to as high as 123 feet NGVD in or around 1951, 1961, and 2004. Rickman generated a water level graph using the Polk County Water Atlas ("Atlas") website. This graph, which covers the period of 2008 through mid-2017, shows that the water levels in Crooked Lake, for this most recent ten-year period, fluctuated approximately five feet, with the lowest levels falling slightly below 114 feet NGVD for relatively short periods in 2012 and 2013, and the highest level rising to approximately 119 feet NGVD in mid-2017. The competent, credible evidence shows that although water levels in Crooked Lake may occasionally rise to levels at or around 123 feet NGVD, those conditions have been associated with extreme weather events such as hurricanes, are atypical, and are relatively short-lived. The maximum water level in Crooked Lake is subject to control by a weir located south of the Lake. Discharge from the weir occurs at a control elevation of 120 feet NGVD. As such, the water level in parts of Crooked Lake may, at times, temporarily exceed 120 feet NGVD, but will eventually decrease to 120 feet NGVD as the water flows south and is discharged through the weir. To the extent rainfall does not recharge the Lake, water levels may fall below 120 feet NGVD. The ordinary high water line ("OHWL"), which constitutes the boundary between privately-owned uplands and sovereignty submerged lands, has been established at 120.0 feet NGVD for Crooked Lake. Crooked Lake is used for recreational activities such as fishing, swimming, boating, and jet ski use, and there are public and private boat ramps at various points on the lake that provide access to the Lake. There is no marina having a fueling station on the Lake. The credible evidence shows that the northeast portion of the Lake, where the Dock is proposed to be located, experiences a substantial amount of boat and jet ski traffic. This portion of the Lake also is used for swimming, water- skiing, wakeboarding, the use of "towables" such as inner tubes, and for other in-water recreational uses. The Proposed Dock Howard holds fee title by warranty deed to parcel no. 333028-000000-033140 located at 1045 Scenic Highway, Babson Park, Florida.9/ This parcel has approximately 110 linear feet of riparian shoreline on Crooked Lake. The Dock is proposed to be constructed and operated on sovereignty submerged lands adjacent to this riparian upland parcel, which is located on the eastern shore of the northeastern portion of Crooked Lake. The Dock, as proposed, is a private single-family residential dock that will be used by Howard for water-dependent recreational purposes, such as specifically, boating, fishing, swimming, and sunbathing. The Dock is not proposed to be constructed or used by, or to otherwise serve, commercial or multifamily residential development. The Dock is configured as a "T," supported by pilings and consisting of a 4-foot-wide by 152-foot-long access walkway, and an approximately 1,983-square-foot terminal platform comprised of a lower-level platform having four vessel slips and a flat platform roof. Two sets of stairs lead from the lower level of the terminal platform to the platform roof, which will be elevated eight feet above the lower-level platform and will have a railed perimeter. The platform roof will function as a roof for the boat storage area below and a sundeck. The four slips on the Dock's lower-level platform will be used for permanent mooring for up to six watercraft: a 23-foot-long ski boat,10/ a 20-foot-long fishing boat, and four jet skis. As proposed, the Dock will occupy a total area of approximately 2,591 square feet. The lower platform of the Dock is proposed to be constructed at an elevation of 121 feet NGVD. The roof/upper platform will be constructed eight feet above that, at an elevation of 129 feet NGVD. The pilings supporting the Dock will be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water. Pursuant to the Specific Purpose Field Survey ("Survey") for the Lease submitted as part of the Application, the Lease will preempt approximately 2,591 square feet, and closely corresponds to the footprint of the Dock. The submerged lands surrounding the Dock that are not occupied by the footprint of the Dock, including the area between terminal platform and the shoreline, are not included in the preempted area of the Lease.11/ The Survey shows "approximate riparian lines" which delineate Howard's riparian area oriented to the center of the waterbody and to the primary navigation channel in the northeast portion of Crooked Lake. As shown on the version of the Survey initially filed as part of the Application, the Dock was proposed to be located approximately 4.7 feet, at its closest point, from the southern riparian line. However, in response to DEP's request for additional information, the Survey was modified in April 2017, to shift the Dock northward within Howard's riparian area. The Dock is now proposed to be located 25.1 feet, at its closest point, from the southern riparian line, and 29.4 feet, at its closest point, from the northern riparian line. The walkway of the Dock will commence at an approximate elevation of 120 feet NGVD, which corresponds to the OHWL established for Crooked Lake. As previously noted above, the walkway will extend waterward approximately 152 feet, where it will intersect with the terminal platform. The terminal platform will extend another 52 feet waterward. In total, the Dock is proposed to extend waterward approximately 204 feet from the OHWL. Although the Dock would be one of the longest and largest docks on Crooked Lake, the credible evidence establishes that there are several other docks of similar size and/or length on the Lake. Rickman testified that he obtained approvals for, or was otherwise aware of, several docks over 2,000 square feet on the Lake. Additionally, the evidence showed that eight other docks on the Lake are longer than the proposed Dock.12/ Rickman testified that most of the larger docks on Crooked Lake have roofs, and that most of these roofs are pitched, rather than flat.13/ As noted above, the water level in Crooked Lake frequently and, at times, extensively fluctuates. As a result, there are periods during which water depths in parts of the Lake are extremely shallow. Rickman testified that the Dock was designed to extend far enough out into Crooked Lake to reach sufficient water depth to enable Howard to maximize the use of the Dock for boating throughout the year. The Dock is designed to extend out to the point at which the bottom elevation of the Lake is approximately 109.9 feet NGVD. Based on the Atlas' ten-year water level graph for Crooked Lake referenced above, Rickman projected that at this point, the water depth typically would be sufficient to allow Howard to operate her largest vessel, the 23-foot ski boat. The ski boat has a 25-inch draft.14/ The boat will be stored out of the water on a boat lift on the Dock, attached by cables to a sub-roof immediately beneath the platform roof. When being lowered into or hoisted from the water, the boat will be placed in a boat cradle consisting of two containment railings approximately 18 inches high each on either side, and a "V" shaped aluminum bottom with bunks on which the boat is cradled. The aluminum bottom of the cradle was estimated to be two to three inches thick. Although the boat cradle is approximately 18 to 21 inches in "total height,"15/ the cradle does not have to be completely lowered its entire 18- to 21-inch height into the water when used. Steven Howard explained, credibly, that the cradle needs to be lowered into the water only a few inches lower than the ski boat's 25-inch draft to enable the boat to float into or out of the cradle. To that point, Rickman testified that taking into account the 25-inch draft of the ski boat and the "total height" of the boat cradle, between 40 and 44 inches of water depth would be required when the cradle is used in order to avoid coming into contact with the Lake bottom. Based on the Atlas graph showing the lowest water levels for the previous ten-year period at approximately 114 feet NGVD, Rickman designed the Dock to extend out to the 109.9-foot NGVD bottom elevation point. At this point, the projected water depth would be slightly more than four feet during periods of the lowest projected water levels for Crooked Lake. For the Dock to be able to wharf out to 109.9 feet NGVD bottom elevation, it must extend a total of approximately 204 feet waterward into the Lake. The credible evidence establishes that while Howard's ski boat is one of the largest, it is not the largest boat operated on Crooked Lake. Impacts Assessment for Environmental Resource Permit Water Quality Impacts As noted above, Crooked Lake is a Class III waterbody. Accordingly, the surface water quality standards and criteria applicable to Class III waters in Florida codified in rule 62-302.300 apply to Crooked Lake. The Dock, as proposed to be constructed and operated, is not anticipated to adversely affect or degrade water quality in Crooked Lake. Specifically, as required by the Consolidated Authorization, a floating turbidity curtain will be installed around the boundary of the construction area before construction commences, and it must be left in place until construction is complete and turbidity levels in the work area have returned to background levels. Additionally, as noted, the pilings supporting the Dock must be wrapped in an impervious material to prevent leaching of metals and other pollutants into the water over the life of the structure. The Consolidated Authorization also prohibits the installation and use of fueling equipment at the Dock; prohibits the discharge of sewage or other waste into the water; prohibits liveaboards; prohibits fish cleaning or the installation of fish cleaning stations unless sufficient measures such as sink screens and waste receptacles are in place; and prohibits repair and maintenance activities involving scraping, sanding, painting, stripping, recoating, and other activities that may degrade water quality or release pollutants into the water. Although the Consolidated Authorization imposes a specific condition requiring, for all vessels using the Dock, a minimum 12-inch clearance between the deepest draft of the vessel (with motor in the down position) and the top of submerged resources, it does not specifically address circumstances where the use of the boat cradle, rather than the vessel itself, may come into contact with the Lake bottom. DEP's witness acknowledged that if the boat cradle were to come into contact with the Lake bottom, water quality standards may be violated. Given the information presented at the final hearing regarding the operation of the boat lift and the need for sufficient clearance between the bottom of the boat cradle and the lake bottom, the undersigned recommends that a specific condition be included in the Consolidated Authorization prohibiting contact of the Lake bottom by the boat cradle. This recommended condition is set forth in paragraph 73.A., below. Upon consideration of the conditions imposed by the Consolidated Authorization discussed above, including imposing a specific condition that prohibits contact of the boat cradle with the Lake bottom, the undersigned finds that the Dock will not adversely affect or degrade the water quality of Crooked Lake. Water Quantity Impacts The Dock, as proposed, is a piling-supported structure that will not impound, store, or impede the flow of surface waters. As such, the Dock will not cause adverse flooding to on-site or offsite property, will not result in adverse impacts to surface water storage and conveyance capabilities, and will not result in adverse impacts to the maintenance of surface or ground water levels. Impacts to Fish, Wildlife, and Listed Species and Habitat The Application states, in section 5, question 6, that there is no vegetation on Howard's riparian shoreline. However, the Survey depicts an area of emergent grasses approximately 60 feet wide and extending diagonally approximately 70 feet waterward into the Lake. The Survey depicts this grassed area as straddling the riparian line between Howard's property and the adjacent parcel to the south. The Survey shows the Dock as being located a significant distance waterward of the grassed area, such that no portion of the Dock will be located on or near this grassed area. Additionally, an aerial photograph of Howard's property and the Lake waterward of Howard's property shows a smaller patch of what appears to be emergent grasses further offshore. This grassed area is not shown on the Survey, and it cannot definitively be determined, by examining the Survey and the aerial photograph, whether this grassed area is growing in an area that will be impacted by the Dock. Steven Howard acknowledged that this smaller grassed area may be located at or near the jet ski slip on the southeastern side of the Dock. An environmental assessment of this smaller grassed area was not performed or submitted as part of the Application. Thus, any value that this area may have as fish and wildlife habitat was not assessed as part of DEP's determination that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat. In order to provide reasonable assurance that the Dock will not adversely impact the value of functions provided to fish, wildlife, and to listed species and their habitat, the undersigned recommends including a specific condition in the Consolidated Authorization requiring this smaller grassed area to be completely avoided during construction and operation of the Dock, or, if avoidance is not feasible, that an environmental assessment be performed prior to construction so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated to determine whether minimization and compensatory mitigation should be required. This recommended condition is set forth in paragraph 73.B., below. As previously noted, the Consolidated Authorization contains a specific condition requiring a minimum 12-inch clearance between the deepest draft of the vessel (with the motor in the down position) and the top of submerged resources for all vessels that will use the docking facility. Compliance with this condition will help ensure that the value of functions provided to fish and wildlife and to listed species and their habitat of any such submerged resources is not adversely impacted by vessels using the Dock. The Consolidated Authorization also contains a specific condition requiring handrails to be installed on the Dock to prevent mooring access to portions of the Dock other than the wetslips. This will help protect submerged resources in shallower areas in the vicinity of the Dock. Fish populations in the immediate area of the Dock site may temporarily be affected during construction of the Dock; however, those impacts are not anticipated to be permanent. Additionally, as previously discussed, the Dock pilings must be wrapped with an impervious material to prevent leaching of pollutants into the water, and once installed, the pilings may provide habitat for fish and a substrate for benthic organisms. Provided that the conditions set forth in the draft Consolidated Authorization, as well as the recommendation regarding the smaller grassed area, are included in the final version of the Consolidated Authorization, it is determined that the construction and operation of the Dock will not adversely impact the value of functions provided to fish, wildlife, or to listed species or their habitat.16/ Impact on Navigation Petitioners assert that the Dock will constitute a hazard to navigation in the northeast portion of Crooked Lake. Specifically, they assert that because the Dock will extend out approximately 204 feet into the Lake, it necessarily will create a navigational hazard to boaters in the vicinity. As support, Petitioners presented evidence consisting of Steven Howard's testimony that an inner tube on which his nephew was riding, that was being pulled behind a motor boat, collided with the Gerards' 84-foot-long floating dock adjacent to Howard's riparian area. Petitioners argue that if an 84-foot-long dock creates a navigational hazard, a 204-foot-long dock would create an even greater navigational hazard. The undersigned does not find this argument persuasive. The portion of Crooked Lake on which the Dock is proposed to be located is approximately a mile and a half to two miles long and one-half to three-quarters of a mile wide. Although this portion of Crooked Lake experiences substantial boat traffic, the evidence shows that the Lake is sufficiently large in this area, even with the Dock in place, to allow safe navigation. To this point, it is noted that there are two other longer docks in the northeastern portion of Crooked Lake, extending 220 and 244 feet into the Lake from the shoreline. There was no evidence presented showing that either of these docks constitutes a navigational hazard.17/ Petitioners also assert that during periods of high water in this portion of Crooked Lake, the Dock will be underwater and thus will present a navigational hazard. In support, they presented photographs taken on October 30, 2017—— approximately six weeks after Hurricane Irma struck central Florida——showing ten docks, out of the 109 docks on Crooked Lake, that were partially or completely submerged.18/ When the photographs were taken, the approximate water elevation was 119.2 feet NGVD. All or a portion of the submerged docks had been constructed at or below the 119.2-foot NGVD elevation. The docks without roofs were mostly or completely invisible under the water. However, for the roofed docks, the roofs remained visible above the water even when their docking platforms were submerged. Here, although the walkway and lower platform of Howard's Dock is proposed to be constructed at an elevation of 121 feet NGVD, the roof will be constructed at an elevation of 129 feet NGVD. Thus, even during the relatively infrequent periods19/ during which the water level in Crooked Lake may exceed 121 feet NGVD, the platform roof will still be visible to vessels navigating in this portion of the Lake. Additionally, the Consolidated Authorization contains a specific condition requiring the waterward end of the Dock to be marked with a sufficient number of reflectors to be visible from the water at night by reflected light. This condition provides additional assurance that the Dock will not present a navigational hazard. For these reasons, it is determined that the Dock will not adversely affect navigation. Other ERP-Related Issues The evidence did not show that the Dock is proposed to be located in or proximate to a "work of the District," as defined in section 373.019(28). The only "work of the District" about which evidence was presented is the weir located south of Crooked Lake. This structure is many thousands of feet south of the Dock. There was no evidence presented showing that the Dock would have any impact on this weir. The Dock, as proposed, was designed by an experienced professional contractor who has designed and installed many docks on Crooked Lake, and, as such, is anticipated to function as proposed. The Dock must be built according to engineering diagrams to the Consolidated Authorization, and as-built drawings must be submitted when Dock construction is complete so that DEP can confirm that the Dock is constructed in accordance with the approved design. The evidence establishes that Howard, as the applicant, and Rickman, as the professional contractor in charge of construction, are financially, legally, and administratively capable of ensuring that the activity will be undertaken in accordance with the terms and conditions of the Consolidated Authorization. No evidence to the contrary was presented. The Dock will be located in the waters of Crooked Lake and will be affixed to the submerged bottom. The Department of State, Division of Historical Resources ("DHR"), did not provide any comments indicating that historical or archaeological resources are anticipated to be impacted by the project. Additionally, the Consolidated Authorization contains a general condition requiring subsurface activity associated with construction of the Dock to immediately cease, and DHR to be contacted, if any prehistoric or historic artifacts, such as pottery or ceramics, stone tools or implements, dugout canoes, or other physical remains that could be associated with Native American cultures or early colonial or American settlements are encountered at any time within the project site area. Additional Recommended Conditions Based on the foregoing, the undersigned recommends that the following specific conditions be included in the Consolidated Authorization, Permit No. 53-0351424-001-EI: A minimum six-inch clearance shall be maintained between the top of all submerged resources and the deepest draft of the cradle of the boat lift while in use. For purposes of this condition, submerged resources consist of the bottom sediment and/or any submerged grasses or other aquatic organisms. Any emergent grasses in the permittee's riparian area shall be avoided during the construction and operation of the Dock. If it is not feasible to avoid these grasses, an environmental assessment of the grassed area shall be performed and submitted to the Department prior to commencing construction, so that the value of this grassed area, if any, to fish, wildlife, and listed species can be evaluated and the extent to which minimization and/or compensatory mitigation is appropriate can be determined. Clearly in the Public Interest Florida Administrative Code Rule 62-4.070, Standards for Issuing or Denying Permits, states in pertinent part: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules. In addition to the foregoing permitting requirements, because the Dock is proposed to be located in an OFW, Howard also must provide reasonable assurance that the Dock meets the "clearly in the public interest" standard. The "clearly in the public interest" standard does not require the applicant to demonstrate need for the project or a net public benefit from the project. Rather, this standard requires the applicant to provide greater assurances, under the circumstances specific to the project, that the project will comply with the applicable permitting requirements.20/ For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the applicable permitting requirements and the "clearly in the public interest" standard for issuance of the ERP. Impacts Assessment for Sovereignty Submerged Lands Lease Water-Dependency of the Proposed Dock A water-dependent activity is one which can only be conducted in, on, over, or adjacent to water areas because the activity requires direct access to the water body or sovereignty submerged lands for specified activities, including recreation, and where the use of water or sovereignty submerged lands is an integral part of the activity. See Fla. Admin. Code R. 18-21.003(71). Petitioners argue that the Dock will not constitute a water-dependent activity because the depth of water in the slips may, at times, be insufficient to allow operation of Howard's vessels while complying with the requirement that a minimum 12- inch clearance be maintained between the lowest draft of the vessel and submerged resources. The undersigned finds this argument unpersuasive. The Dock is being constructed specifically for the purpose of enabling Howard to use her vessels for boating——a recreational activity for which use of the water indisputably is an integral part. The Dock's primary purpose is to moor vessels that will be used for the water-dependent recreational activities of boating and fishing, and other water-dependent recreational uses of the Dock include fishing, swimming and sunbathing. Case law interpreting the Florida Administrative Code Chapter 18-21 makes clear that because docks are used for mooring vessels or conducting other in-water recreational uses, they are "water-dependent" activities for purposes of the rules.21/ Thus, even if water depths in the Dock's slips are at times insufficient for vessel mooring or launching,22/ this does not render the Dock not a "water-dependent activity." Resource Management Requirements The preempted area of the Lease is proposed to be used for a Dock that will be used for boating, fishing, and swimming. These traditional in-water recreational uses are consistent with the management purposes of sovereignty submerged lands as described in rule 18-21.004(2)(a). With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock will not result in adverse impacts to sovereignty submerged lands and associated resources. With the inclusion of the conditions currently proposed in the draft Consolidated Approval, as well as the recommended conditions in paragraphs 73.A. and 73.B., the undersigned determines that the Dock is designed to minimize or eliminate impacts to fish and wildlife habitat and submerged resources. With the inclusion of the currently proposed conditions in the draft Consolidated Authorization, as well as the recommended conditions set forth in paragraphs 73.A. and 73.B., it is determined that the Dock, as designed and constructed, will minimize or eliminate cutting, removal, or destruction of wetland vegetation. Additionally, as discussed above, the proposed Consolidated Approval requires the avoidance of adverse impacts to historic and cultural resources. Riparian Rights Consistent with rule 18-21.004(3)(d), the Dock is proposed to be constructed in Howard's riparian area and will be set back more than 25 feet from the northerly and southerly riparian lines shown on the Survey. Rule 18-21.004(3)(a) prohibits activities authorized under chapter 18-21 from being implemented in a manner that would unreasonably infringe on traditional common law riparian rights, as defined in section 253.141, of upland owners adjacent to sovereignty submerged lands. Similarly, rule 18-21.004(3)(c) requires all structures and activities to be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent riparian owners. Collectively, these provisions prohibit an activity that will occur on sovereignty submerged lands from unreasonably infringing on or unreasonably restricting the riparian rights of upland riparian owners. Riparian rights are rights appurtenant to, and inseparable from, riparian land that borders on navigable waters. § 253.141, Fla. Stat.; Broward v. Mabry, 50 So. 830 (Fla. 1909). At common law, riparian rights include the rights of navigation, fishing, boating, and commerce. Hayes v. Bowman, 91 So. 2d 795 (Fla. 1957). The right of navigation necessarily includes the right to construct and operate a dock to access navigable waters. Belvedere Dev. Corp. v. Dep't of Transp., 476 So. 2d 649 (Fla. 1985); Shore Vill. Prop. Owners' Ass'n v. Dep't of Envtl. Prot., 824 So. 2d 208, 211 (Fla. 4th DCA 2002). Common law riparian rights also include the right to an obstructed view. Lee Cnty v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998). Many of these common law riparian rights have been statutorily codified in section 253.141. Statutory riparian rights include the "rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law." § 253.141(1), Fla. Stat. At issue in this case are the competing riparian rights of next-door neighbors——i.e., Howard's right to wharf out to navigable waters for purposes of boating and other water- dependent recreational activities, and the Gerards' right to an unobstructed view. The question is whether Howard's proposed construction and operation of a dock of sufficient length to enable her to use her boats would unreasonably infringe on or unreasonably restrict the Gerards' right to an unobstructed view of the Lake. By virtue of the riparian rights appurtenant to Howard's riparian property, she is entitled to wharf out to water deep enough to enable her to navigate. She owns two boats, one of which pulls a draft of 25 inches, and the other, a draft of 20 inches, which she uses to navigate the Lake. Thus, an essential aspect of Howard's riparian right of navigation is her ability to construct and operate a dock long enough to enable her to reach water depths sufficient to use these boats. However, as noted above, this right is not unfettered. Howard's exercise of her riparian navigation right cannot unreasonably infringe on Gerard's right to an unobstructed view. Florida case law holds that the right to an "unobstructed" view does not entail a view free of any infringement or restriction whatsoever by neighboring structures or activities. In Hayes, the court defined the right as "a direct, unobstructed view of the [c]hannel and as well a direct, unobstructed means of ingress and egress . . . to the [c]hannel." Id. at 801 (emphasis added). The court then prescribed the rule that "in any given case, the riparian rights of an upland owner must be preserved over an area 'as near as practicable' in the direction of the [c]hannel so as to distribute equitably the submerged lands between the upland and the [c]hannel." Id. (emphasis added). To the extent there is no channel in this portion of the Lake, Hayes dictates that riparian rights must be apportioned equitably, so that a riparian owner's right to an unobstructed view can extend only from the owner's property in the direction of the center of the Lake. Kling v. Dep't of Envtl. Reg., Case No. 77-1224 (Fla. DOAH Oct. 6, 1977; Fla. DER Nov. 18, 1977) at ¶¶ 11-12 (emphasis added). Here, no evidence was presented showing that the Dock——which will be located immediately south and east of the Gerards' riparian property and attendant riparian area——will present an obstruction to the Gerards' view of the Lake channel. Additionally, the evidence did not establish that Howard's Dock would obstruct the Gerards' view of the center of the northeast portion of Crooked Lake, which is located west and slightly south of their property.23/ Administrative precedent in Florida provides additional support for the determination that the Dock will not unreasonably infringe on the Gerards' right to an unobstructed view. In O'Donnell v. Atlantic Dry Dock Corporation, Case No. 04-2240 (Fla. DOAH May 23, 2005; Fla. DEP Sept. 6, 2005), riparian owners challenged the proposed approval of expansions of sovereignty submerged lands leases authorizing Atlantic Dry Dock, a neighboring commercial shipyard, to expand its shipyard facilities and install new docking facilities. The administrative law judge noted that although the expanded shipyard would further encroach on the riparian owners' already somewhat-restricted view from their property, it would not substantially and materially obstruct the Petitioners' view to the channel. He commented: "it [their view] may be further obstructed to the west in the direction of the Atlantic Marine yard, but not in the direction of the channel." To that point, he found that although "any lateral encroachment on the Petitioners' line-of-sight to the channel by the large eastern dry dock proposed will be an annoyance, . . . [it] will not rise to the level of a substantial and material interference or obstruction of the Petitioners' view to the channel." Id. at ¶ 119. He found that "there is no 'special riparian right' to a view of the sunset, just as there was no right to a particular object of view . . . by the riparian owners complaining in the Hayes case." Id. at ¶ 120. Castoro v. Palmer, Case Nos. 96-0736, 96-5879 (Fla. DOAH Sept. 1, 1998; Fla. DEP Oct. 19, 1998), also is instructive. In Castoro, neighboring riparian owners challenged the proposed issuance of an environmental approval and sovereignty submerged lands lease for a 227-foot-long dock having a terminal platform with boat lift. The owners contended that due to the dock's length, it would impermissibly obstruct their views of the water. The administrative law judge rejected that contention, distinguishing the circumstances from those in Lee County v. Kiesel, 705 So. 2d 1013 (Fla. 2d DCA 1998), in which the construction of a bridge that blocked 80 percent of the riparian owners' view of the channel was held to constitute a "substantial and material" obstruction to the riparian right of view. The ALJ noted that although the dock would have "some impact on the neighbors' views" and their use of the waterbody, it did not unreasonably impact their riparian rights to an unobstructed view or to use of the waterbody. Id. at ¶¶ 73-74. In Trump Plaza of the Palm Beaches Condominium v. Palm Beach County, Case No. 08-4752 (Fla. DOAH Sept. 24, 2009; Fla. DEP Oct. 8, 2009), a condominium association challenged the proposed issuance of a sovereignty submerged lands use approval to fill in a dredged area and create mangrove islands in the Lake Worth Lagoon, alleging, among other things, that the creation of the mangrove islands would unreasonably infringe on their riparian right to an unobstructed view. In rejecting this position and recommending issuance of the submerged lands use approval, the ALJ noted that the area obstructed by the mangrove islands would be negligible compared to the remaining expanse of the view, and further noted that the owners' real concern was directed at the aesthetics of the project——specifically, they did not want to view mangrove islands. The ALJ stated: "[t]he evidence supports a finding that while the project will undoubtedly alter the view of the water from [the riparian owners' property], the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights." Id. at ¶ 86. Applying these case law principles, it is determined that the Dock will not unreasonably infringe on or unreasonably restrict the Gerards' riparian right to an unobstructed view. To that point, the cases make clear that the right to an "unobstructed" view is not an unfettered right to a view of the water completely free of any lateral encroachment, but, instead is the right of a view toward the channel or the center of a lake without unreasonable infringement or restriction. Here, although the Dock will laterally encroach on the Gerards' full panoramic view of the Lake——and, as such, may even constitute an annoyance, the evidence did not show that the Dock will obstruct or otherwise restrict their view to the channel or the center of the Lake. Moreover, to the extent the Gerards have expressed concern about the Dock interfering with their view of the south shore of the Lake, O'Donnell makes clear the desire to have a particular object of view——here, the south shore of the Lake——is not a legally protected riparian right. It is also found that the Dock will not unreasonably interfere with the Gerards' riparian rights of ingress, egress, boating, or navigation. As previously noted, the Dock will be located at least 25 feet inside the riparian lines established for Howard's upland property, and, it will not be constructed in a location or operated in a manner that will obstruct, interfere with, or restrict the Gerards' access to the Lake or to sufficient water depths to enable navigation.24/ The evidence also did not establish that the Dock will restrict or otherwise interfere with the Gerards' use of their riparian area for ingress and egress, boating, fishing, bathing, or other riparian uses. In sum, it is concluded that the Dock will not unreasonably infringe on or restrict the riparian rights of adjacent upland riparian owners. Accordingly, it is determined that the Dock will meet the requirements and standards in rule 18-21.004(3) regarding riparian rights. Navigational Hazard For the reasons discussed in paragraphs 63 through 67, it is determined that the Dock will not constitute a navigational hazard in violation of rule 18-21.004(7)(g). Not Contrary to the Public Interest Rule 18-21.004(1)(a) requires an applicant to demonstrate that an activity proposed to be conducted on sovereignty submerged lands will not be contrary to the public interest. To meet this standard, it is not necessary that the applicant show that the activity is affirmatively in the "public interest," as that term is defined in rule 18-21.003(51). Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Castoro, at ¶ 69. For the reasons discussed above, and with the inclusion of the additional recommended conditions in paragraphs 73.A. and 73.B., it is determined that the proposed Dock meets the "not contrary to the public interest" standard required for issuance of the Lease. Demonstration of Entitlement to ERP Howard met her burden under section 120.569(2)(p) to present a prima facie case of entitlement to the ERP by entering into evidence the Application, the Notice of Intent, and supporting information regarding the proposed Dock. She also presented credible, competent, and substantial evidence beyond that required to meet her burden under section 120.569(2)(p) to demonstrate prima facie entitlement to the ERP. The burden then shifted to Petitioners to demonstrate, by a preponderance of the competent substantial evidence, that the Dock does not comply with section 373.414 and applicable ERP rules. For the reasons discussed above, it is determined that Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding. Accordingly, for the reasons addressed above, it is determined that Howard is entitled to issuance of the ERP for the Dock. Demonstration of Entitlement to Lease As previously discussed, Howard bore the burden of proof in this proceeding to demonstrate, by a preponderance of the evidence, that the Dock meets all applicable statutory and rule requirements for issuance of the Lease for the Dock. For the reasons discussed above, it is determined that Howard met this burden, and, therefore, is entitled to issuance of the sovereignty submerged lands lease for the Dock. Petitioners' Standing Defenders' Standing As stipulated by the parties and noted above, Defenders is an incorporated non-profit entity created for the primary purpose of protecting and preserving Crooked Lake so that it may remain an OFW for all members of the public to enjoy. Defenders has been in existence since at least the mid- 1980s. Robert Luther, the president of Defenders, testified that the organization's purpose also entails providing education and promoting public awareness in order to preserve the natural beauty, water quality, ecological value, and quality of life around Crooked Lake. As stipulated by the parties and noted above, Defenders has more than 25 members. Luther testified that Defenders has approximately 100 family members, most of whom live on or around Crooked Lake. He noted that many of Defenders' members own boats, which they park at a local boat landing on the Lake. Based on this testimony, it is inferred that these members operate their boats on Crooked Lake. After receiving the public notice of the project, Defenders' board of directors voted to oppose issuance of the Consolidated Authorization for the Dock. Luther testified that the board's decision was based on the determination that "it was clearly within the public interest" to oppose the Dock. Gerards' Standing The Gerards reside at 1055 Scenic Highway, Babson Park, Florida. Their riparian property is immediately adjacent to, and northwest of, Howard's property. The Gerards own a floating dock that is located within their riparian area.25/ The dock consists of two 4-foot- wide by 30-foot-long ramps attached to a 24-foot-long by 8-foot- wide pontoon boat. Priscilla Gerard testified that she enjoys spending time sitting and reading books on the beach in front of her property, and that having that area to sit and read is a significant aspect of her enjoyment of her lakefront property. Ms. Gerard observed that extensive boating activities in the northeast portion of the Lake on weekends is disruptive, and interferes with her use of her beach for relaxing and reading. She particularly noted that boats operating very close to the shore cause waves to splash up on her beach, interfering with her ability to sit and read close to the shore. She did not contend that Howard's use of the Dock for boating would contribute to the disruptive nature of existing boat traffic in the vicinity. Ms. Gerard has viewed the plans for the proposed Dock and is very concerned that due to its size, her view of the south side of the Lake will be completely blocked. She acknowledged, and other competent, credible evidence showed, that there are other docks on the Lake in the vicinity of her riparian property. The evidence shows that existing docks having lengths of 145 feet and 170 feet are located in the vicinity of, and are visible from, the Gerards' property. She testified that an existing dock and tiki hut block her view of the Lake to the north. She acknowledged that although Howard's Dock, if constructed as proposed, may somewhat obstruct her view to the left (south) of her property, it would not block her view straight out into the Lake. Phillip Gerard testified that he has boated extensively on Crooked Lake in a variety of vessel types. He further testified that he has observed a range of boating practices on Crooked Lake, including seeing water skiers and persons being towed behind motorized vessels on inner tubes and other types of "towables." He testified that, based on his personal observations, persons being towed do not have independent control of the speed or direction of the "towable"; thus, depending on the direction in which the towing vessel turns, the towable may be slung to the left or the right. Gerard commented that such lack of control could result in a person riding on a towable colliding with a dock, and he noted that Howard's nephew, who was riding on an inner tube being towed by a boat, was involved in such a collection with his (Mr. Gerard's) own dock. Mr. Gerard did not testify that the Dock would present a navigational hazard to, or otherwise interfere with, the Gerards' riparian right of ingress and egress. Neither of the Gerards testified that the Dock would impact their ability to access navigable waters in the Lake. Mr. Gerard acknowledged that if Howard's Dock were constructed, boats that currently travel very close to the shoreline of his property would be forced to swing further out in the Lake, away from his riparian shoreline, in order to avoid the Dock.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Consolidated Environmental Resource Permit and Recommended Intent to Grant Sovereignty Submerged Lands Authorization, Permit No. 53-0351424-001-EI, on the terms and conditions set forth in the Consolidated Notice of Intent and attached draft of Permit No. 53-0351424-001-EI, as modified to include the Additional Recommended Conditions set forth in paragraphs 73.A. and 73B. DONE AND ENTERED this 5th day of July, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2018.
The Issue The issue in this case is whether Niagara Bottling Company, LLC (Niagara), is entitled to Consumptive Use Permit (CUP) No. 114010 issued by the St. Johns River Water Management District (District), which authorizes Niagara to withdraw and use 484,000 gallons per day (gpd) of groundwater to produce bottled water at a facility in Lake County.
Findings Of Fact The Parties Groveland is a municipal corporation located in Lake County. Niagara is a water bottling company registered to do business in Florida. Niagara currently owns and operates six water bottling facilities in the United States, including a bottling facility in unincorporated Lake County, northwest of Groveland. Niagara currently operates one bottling line at its Groveland facility, which can be used to bottle either spring water or purified water. The District is a special taxing district created by the Florida Water Resources Act of 1972, with jurisdiction over a sixteen-county area that includes Groveland and the site of Niagara’s proposed water withdrawal. The District administers a permitting program for the consumptive use of water. The Proposed Permit The top geologic layer in the region is the surficial aquifer, which starts at the ground surface and extends down about 50 feet to the Intermediate Confining Unit. Below the Intermediate Confining Unit is the Upper Floridan Aquifer, which starts at a depth of about 150 feet and extends downward to about 550 feet below the ground surface. Below the Upper Floridan Aquifer is the Middle Semi-Confining Unit, which extends down another 450 feet. Below the Middle Semi-Confining Unit is the Lower Florida Aquifer, which extends down to about 2,200 feet below sea level. Nearly all of the groundwater withdrawn for consumptive uses in central Florida comes from the Upper Floridan Aquifer. Groveland’s public water supply wells, for example, withdraw water from the Upper Floridan Aquifer. The proposed CUP authorizes Niagara to withdraw 484,000 gpd from the Upper Floridan Aquifer to produce bottled water. The CUP authorizes the installation of three water supply wells for the facility: a 16-inch production well, a 16-inch backup well, and a 4-inch supply well for domestic uses at Niagara’s facility. Of the 484,000 gpd that Niagara would withdraw, approximately 454,000 gpd would be treated and bottled as “purified water” and approximately 30,000 gpd would be used for cooling some of the equipment used in the bottling process. Under federal regulations, bottled water sold as purified water must meet certain maximum contaminant levels, including a total dissolved solids (TDS) level of less than 10 parts per million. By regulation, purified water is distinct from tap water and from bottled spring water. Niagara would treat the groundwater by filtration and reverse osmosis (RO), primarily to remove TDS. At a customer’s request, minerals can be added to the water to enhance taste. Also before the water is bottled, it disinfected with ozone. The RO process at the Niagara facility is projected to turn 454,000 gpd of groundwater into about 363,000 gpd of purified drinking water for bottling and 91,000 gpd of RO concentrate/wastewater. Reject water from the cooling water system would add some additional wastewater. Niagara has arranged to send its RO concentrate to the Frozen Grove Wastewater Treatment Facility to be blended and used for irrigation at the Mission Inn Golf and Tennis Resort in Howey-in-the-Hills. The City of Minneola has also agreed to take Niagara’s RO concentrate. Niagara and the District requested that the proposed CUP be modified to add the City of Minneola wastewater treatment facility as an alternative recipient for Niagara’s RO concentrate. Niagara and the District propose the following change to Condition 10 of the Technical Staff Report: Withdrawals of groundwater from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010 for commercial/industrial type use shall not be initiated until Niagara Bottling LLC and the Frozen Grove WWTF or alternatively Niagara Bottling LLC and the City of Minneola WWTF have obtained all necessary permits to create and use the blend of process waste water (R/O concentrate) and reclaimed water for irrigation, as described in Attachment 4 of the application materials submitted to the District on May 9, 2008 for the Frozen Grove WWTF and the material submitted to the District on March 4, 2009 for the City of Minneola WWTF. The permittee shall provide documentation to the District that the necessary permits have been obtained within 30 days of initiating withdrawals of groundwater for commercial/industrial type use from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010). The proposed CUP includes a conservation plan with provisions for monitoring water use, repairing leaks, conducting quality assurance inspections, using totalizing flow meters, and minimizing spillage. Niagara’s proposed CUP contains conditions for environmental monitoring. Niagara would be required to collect water level and rainfall data, and basic vegetation and soils conditions at Lake Arthur. Lake Arthur was selected for monitoring because hydrologic modeling indicated that Niagara’s greatest potential impact to the water table was near Lake Arthur. The monitoring is intended to detect any unexpected adverse environmental impacts caused by Niagara’s proposed withdrawal so that they can be addressed. The proposed permit has an expiration date of December 31, 2013. Stipulations and Withdrawn Claims Before the final hearing, Groveland withdrew a number of allegations made in its Second Amended Petition for Hearing. Groveland stated that its intent was to withdraw the claims that its substantial interests were affected by Niagara’s proposed groundwater withdrawal. Groveland no longer contends that it would be specially injured by the proposed water use. In the parties’ Joint Pre-Hearing Stipulation, Groveland stipulated that Niagara’s proposed water use would not interfere with any legal uses of water. Groveland also stipulated that Niagara’s proposed use would not cause adverse or significant impacts to lake stages or vegetation, would not impact adjacent land uses, would not cause significant saline water intrusion, would not cause or contribute to flood damage, would not harm the quality of the water source, would not cause or contribute to a violation of state water quality standards, would not impact minimum flows and levels established by the District, would not cause the water table or aquifer potentiometric surface to be lowered so that lake stages or vegetation would be adversely and significantly affected, would not affect spring flows or water levels, and would not use water reserved by the District from consumptive use. The record evidence supports the stipulations identified above. Economic and Efficient Utilization The Upper Floridan Aquifer is capable of producing the requested amount of water. Florida Administrative Code Rule 40C-2.301(4)(a) and Section 10.3(a) of the Applicant’s Handbook require that a water use be in such quantity as is necessary for economic and efficient utilization. The District’s determination of economic necessity focuses on preventing “water banking,” which is securing rights to water in excess of an applicant’s actual needs, for possible future use. Niagara’s 484,000 gpd allocation is based on the peak maximum daily output of the processing equipment operating at 74 percent capacity, which is the average capacity that Niagara achieves at its bottling facilities. Groveland contends that the consumer demand for bottled water could be met by other water bottlers and, therefore, there is no need for Niagara’s proposed withdrawal. However, no statute or rule requires Niagara to demonstrate that this particular CUP is the only means to meet the consumer demand for bottled water. The District’s evaluation of need focuses on the applicant’s need for the requested volume of water. In determining whether a requested use of water is necessary, the District does not evaluate the appropriateness of the associated business or activity, but only whether the applicant can reasonably be expected to use the requested volume of water, and do so efficiently based on industry standards. The evidence presented regarding the bottled water market and Niagara’s position in the market was sufficient to demonstrate that the requested volume of water is necessary through the duration of the CUP. The 30,000 gpd that Niagara would use for its cooling system is a reasonable amount of the water for that purpose. The technology to be used at Niagara’s facility is state-of-the- art, using constant online monitoring to reduce reject water. The cooling equipment and its operation have been designed to minimize water use. RO is the industry treatment standard for production of purified bottled water. It is the most cost-efficient treatment method in terms of energy use and water consumption. The proposed RO equipment and its operational parameters are designed to optimize treatment efficiencies. The volume of RO concentrate that would be produced depends on the TDS levels in the groundwater. The estimate of 91,000 gpd of RO concentrate is conservatively high, based on the TDS levels in groundwater samples. The actual volume of RO concentrate produced by Niagara could be smaller. Groveland was critical of Niagara’s wastewater volume, contending that the conversion of 91,000 gpd of groundwater to wastewater is inefficient and contrary to the public interest. The fact that Niagara’s bottling process would produce 91,000 gpd of wastewater does not make it inefficient. Nearly every commercial and industrial water use has a wastewater component. In the context of water bottling processes and water treatment systems, Niagara’s operation is efficient. Groveland asserts that sending Niagara’s RO concentrate to the Mission Inn golf course or the City of Minneola for irrigation purposes is inefficient because a large portion of irrigation water is usually lost to evaporation and does not recharge the aquifer. This assertion fails to account for the fact that every gallon of RO concentrate used for irrigation reduces by one gallon the volume of groundwater that would otherwise be withdrawn for irrigation. Using Niagara’s wastewater for irrigation contributes to the efficiency of Niagara’s proposed use. There is typically a deficit of reclaimed water from public wastewater treatment systems in the summer when the demand for reclaimed water for irrigation and other purposes increases. Niagara’s supply of RO concentrate, however, would remain constant throughout the year. Mission Inn and Minneola would benefit if they were able to use Niagara’s RO concentrate. Niagara’s conservation plan for water use at its facility is equal to or better than the conservation plans incorporated into the CUPs that the District has issued to other beverage bottlers. Niagara’s proposed use was shown to be of such a quantity as is necessary for economic and efficient utilization. Sources of Lower Quality Water Florida Administrative Rule 40C-2.301(4)(f) states that reclaimed water must be used if it is “readily available.” Section 10.3(g) of the Applicant’s Handbook requires that the “lowest acceptable quality water source, including reclaimed water or surface water” must be used for a consumptive use, unless the applicant demonstrates that the use of a lower quality water source is not economically, environmentally, or technologically feasible. The requirement to use a lower water quality source, however, is not applicable when the water is for “direct human consumption” or human food preparation. § 10.3(g), Applicant’s Handbook. Groveland argues that the word “direct” should mean unaltered and, therefore, Niagara’s bottled water is not intended for direct human consumption because the water is treated before it is bottled. The District, however, does not interpret or apply the term “direct human consumption” to mean drinking water directly from the source without treatment. In the case of the water delivered to households and businesses by public water suppliers, which also must be treated before it is delivered, the District regulates the water as being for direct human consumption. The fact that Niagara would filter the groundwater, apply RO treatment, add acid to prevent mineral buildup in the RO equipment, and add minerals for taste if requested by customers, does not disqualify Niagara’s bottled water as being for direct human consumption. Because 454,000 gpd of Niagara’s proposed water withdrawal would be processed for direct human consumption, Niagara did not have to seek to use a source of lower water quality for that volume. The requirement to use available sources of lower quality water would apply to the 30,000 gpd that Niagara intends to use for cooling. There are technical and economic problems associated with using water of lower quality for the cooling process at the Niagara facility because higher TDS levels would damage the cooling equipment. Using water with higher TDS levels would also require greater volumes of water to achieve cooling. Niagara’s cooling system is designed to reject water when the dissolved solids reach a certain high level, and to replace the reject water with fresh water. Operating at higher dissolved solid levels would cause the system to reject water more frequently, so greater volumes of water would be needed for cooling and greater volumes of wastewater would be generated. Using surface water from the St. Johns River, which has TDS levels much higher than in the groundwater, would require twice as much water to operate Niagara’s cooling system. In addition, a 44-mile pipeline would be needed to convey water from the St. Johns River to the Groveland facility, which would involve much higher costs. Seawater has even higher TDS levels and would require desalinization and a different cooling system. Using seawater would require much greater volumes of water for treatment and cooling. Disposal of the brine concentrate generated by the treatment process would create additional costs. The use of seawater would require the construction of a 120-mile pipeline, which would involve large capital and operating costs. Groveland insists that the much higher costs associated with these sources of lower quality water are still economically feasible for Niagara based on Niagara’s projected income from its bottling operations. The District does not determine feasibility based on the balance sheet of the individual permit applicant. The District evaluates relative costs of alternative sources in the context of normal practices and expected benefits. Reliable volumes of reclaimed water to use in Niagara’s cooling system are not readily available to Niagara from domestic wastewater treatment facilities in the area. The spring water sources that Niagara is currently using are not sources of lower quality water. These sources are of equivalent quality to the groundwater that Niagara proposes to withdraw. Groveland contends that Niagara did not investigate the quality of the Lower Floridan Aquifer as a potential source of lower water quality water for Niagara’s proposed use. Groveland believes, but did not prove, that the Lower Floridan has lower quality water. Studies conducted by the U.S. Geological Survey indicate that the water quality of the Lower Floridan Aquifer is about the same or better quality than the quality of the water in the Upper Floridan Aquifer. Water quality data from a Lower Floridan well in the vicinity also indicates that the quality of the water in the Lower Floridan is as good as, or better than, the water quality in the Upper Floridan in this area. Withdrawals from the Lower Floridan create a risk of saline water intrusion into the fresh portion of the Lower Floridan or Upper Floridan. Niagara demonstrated that it is not technically nor economically feasible to use a source of lower quality water for its cooling water. Individual Effect on Wetlands and Lakes To identify the “zone of influence” of Niagara’s proposed withdrawal of water and to assess the individual and cumulative effects of the drawdown associated with the withdrawal, Niagara’s consulting hydrogeologist used a steady- state numerical groundwater model developed by the District, known as the East Central Florida (ECF) groundwater model. It is a steady-state model, which produces a value that represents a long-term average effect. The ECF model predicts the level of drawdown in the surficial aquifer. The model assumes that wetlands and other surface waters are directly connected to the surficial aquifer so that a given drawdown of the surficial aquifer causes the same drawdown of the water levels in wetlands and other surface waters. The ECF model is calibrated to water level data from 1995. A drawdown predicted by the model is a drawdown from 1995 water levels. The ECF model results are graphically depicted as drawdown contours that are overlaid on aerial photography. The District considers the condition and functions of the surface waters in and around the withdrawal site to determine how they might be affected by a predicted drawdown. The dominant surface waters in the area of the proposed withdrawal are sand hill lakes. There are few wetlands. In sand hill lake systems, water table levels fluctuate widely, as much as eight or ten feet. Consequently, these systems are colonized by herbaceous plants that are adapted to widely fluctuating water levels. The wetlands and lakes in the area are not currently showing signs of environmental harm as a result of existing groundwater withdrawals. Niagara’s modeling predicted that the proposed water withdrawal, by itself, would cause a maximum drawdown in the surficial aquifer of 0.1 feet, except for one small area where the predicted drawdown was 0.2 feet. All the expert witnesses were in agreement that Niagara’s drawdown, by itself, is unlikely to cause environmental harm. In fact, the impacts of such a small drawdown on the physical conditions or functions of wetlands or lakes in the area would probably be impossible to detect. Cumulative Effect on Wetlands and Lakes For the analysis of cumulative impacts, the ECF model takes into account all permitted withdrawals for the year 2013, because that is the key year for the regulation of water uses in the Central Florida Coordination Area (CFCA), which includes the site of Niagara’s bottling facility. The CFCA is discussed in greater detail later in this Recommended Order. The ECF model predicated that the cumulative surficial aquifer drawdown within the area of influence of Niagara’s proposed withdrawal would be less than one foot except for one small area where the drawdown is predicted to be 1.1 feet. Niagara submitted an environmental assessment report, the Lotspeich report, with its permit application. The Lotspeich report concluded that no ecological harm would be caused by Niagara’s proposed withdrawal. Subsequently, Niagara’s consulting ecologist, Dr. Shirley Denton, who has extensive experience with the effects of drawdowns on wetlands and other surface waters, reevaluated the potential effects of Niagara’s proposed withdrawal. Dr. Denton visited all of the natural systems in the field. It was her opinion that the cumulative drawdown would not cause unacceptable harm to these natural systems. The District’s environmental expert agreed with Dr. Denton. In the Central Florida sand hill lakes area, a drawdown of this magnitude is not an uncommon cumulative impact from groundwater withdrawals that the District has determined to be acceptable. Groveland presented the testimony of Dr. Jay Exum who opined that the cumulative drawdown in the area of Niagara’s proposed withdrawal would adversely impact wetlands. Dr. Exum’s opinion was based on his prediction that the cumulative drawdown would result in a substantial reduction in the size of the wetlands in the area. However, his opinion about the loss of wetland acreage is not persuasive because of the unconventional methodology2/ that he used and the unreasonable assumptions upon which his opinion was based. Dr. Exum reviewed land cover maps of Lake County, calculated the size and topography of eight wetlands in the area (only one was within Niagara’s zone of influence), came up with an estimated reduction in wetland acreage for these wetlands, and then extrapolated from that number a prediction of the total area of wetlands within Niagara’s area of influence that would be lost as a result of the cumulative drawdown. Dr. Exum did not account for the fact that the wetlands and lakes in the area already reflect most of the cumulative drawdown. The cumulative drawdown predicted by the modeling is not a drawdown below today’s average water levels; it is a drawdown below 1995 levels. In addition, Dr. Exum assumed that a drawdown in the surficial aquifer of .5 foot will cause the future loss of the vegetation at the outer edges of a wetland in an amount that can be calculated simply by determining how much area .5 feet of water would occupy. That assumption would only apply in a hypothetical, unnatural situation where water levels are constant and the wetland vegetation will not survive if the water table drops .5 feet. However, the actual situation is that the water table fluctuates widely in these natural systems and the vegetation is adapted to the fluctuations. The area “formerly” occupied by the .5 feet of water could still be inundated frequently enough to sustain the vegetation. Dr. Exum’s opinion about the environmental effects that would be caused by the cumulative drawdown of the surficial aquifer was given less weight than the opinions offered by Niagara’s and the District’s ecologists because Dr. Exum has little or no prior experience with the effects of drawdowns on natural systems. Dr. Exum’s professional experience is almost entirely with the impacts associated with construction activities in or near wetlands, which would not acquaint him with the unique, long-term responses of natural systems to water table drawdowns caused by groundwater withdrawals. Dr. Denton, who has over 25 years of experience with monitoring wetlands affected by groundwater withdrawals, stated that drawdowns in the surficial aquifer do not usually cause reductions in the size of a wetlands. The more persuasive evidence in the record demonstrates that Niagara’s proposed withdrawal would not cause adverse impacts to wetlands on an individual or a cumulative basis. Niagara provided reasonable assurance that any environmental harm caused by the proposed use has been reduced to an acceptable amount. The five-year duration of the permit is reasonable and appropriate. Public Interest Section 9.3 of the Applicant’s Handbook defines “public interest” as: those rights and claims on behalf of the people in general. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the overall collective well-being of the people or to the water resource in the area, the District and the State. The policy and practice of the District has been to limit its public interest analysis to matters directly related to water resources and the management of those resources. Other matters, such as vehicle traffic generated by the applicant, are not considered by the District. Groveland suggests that Niagara’s proposed use, and perhaps all commercial/industrials uses, are less important and worthy than public water supply uses like its own, and should not be allowed to take water that a public water supplier might need in the future. As discussed in the Conclusions of Law, all reasonable beneficial uses of water are equal under Chapter 373, except in certain contexts which are not applicable here. Commercial and industrial activities that make consumptive uses of water, when conducted in conformance with regulations established to efficiently use and protect the water resources, are generally beneficial to the collective well-being of the people. Groveland also claims that Niagara’s CUP is not in the public interest because a portion of Niagara’s bottled water will be shipped out of Florida. Although Niagara cannot project precisely the amount of bottled water that would end in the hands of consumers residing out-of-state, an estimate of 20 percent was given. For beverage bottlers or any other commercial or industrial water users that incorporate water into their products, the District deems the location of the water use to be where the water is bottled or incorporated into the products. The District does not look to where products are ultimately purchased by a retail consumer. Therefore, the District did not consider the fact that a portion of Niagara’s bottled water would be consumed outside of Florida as a factor in the District’s determination of whether the proposed water use is in the public interest. Niagara’s withdrawal is within the Central Florida Coordination Area (CFCA), an area covering parts of the jurisdiction of three water management districts and which includes the City of Groveland and the site of Niagara’s proposed water withdrawal. The CFCA is a highly productive area for groundwater withdrawals, but the water management districts have determined that it does not have sufficient water to serve water needs above the levels that have been allocated through the year 2013. To protect the water resources of the CFCA, rules were adopted to require public water suppliers and other water users within the CFCA to use “supplemental water supplies” to meet their increases in demand after 2013. Supplemental water supplies are identified in the CFCA rules as reclaimed water, stormwater, surface water, and seawater desalinization. Niagara is not requesting additional water above its 2013 demand and, therefore, is not subject to the restrictions imposed by the various CFCA rules. Nevertheless, the District treated Niagara’s location within the CFCA as a matter affecting the public interest. The District determined that it was inconsistent with the public interest to allow Niagara to withdraw groundwater in the CFCA unless Niagara was required to participate in the development of supplemental water supplies. Therefore, Niagara is required by “Other Condition” 14 in the District’s Technical Staff Report, to identify potential partners for the development of supplemental water supply projects, determine the viability of developing the partnerships, evaluate potential supplemental water supply projects available, and submit a comprehensive written report evaluating whether identified projects are feasible future water supply sources for Niagara. The District imposed a permit expiration date of December 31, 2013, to enable the District and Niagara to reevaluate Niagara’s ability to use a lower quality water source after that date. Groveland does not believe the conditions imposed by the District go far enough and asserts that Niagara’s water withdrawal from the CFCA is still contrary to the public interest. Niagara’s proposed withdrawal is also within a Priority Water Resource Caution Area (PWRCA) designated by the District. The District designates priority water resource caution areas as part of its water supply 20-year planning process. In the PWRCA, the District has determined that there is inadequate groundwater in the Floridan Aquifer to meet all existing and future water needs, without having unacceptable impacts on the water resources. The District stated that the designation of a priority water resource caution area is strictly a planning tool and does not preclude the issuance of permits. CUPs are commonly issued for proposed withdrawals in priority water resource caution areas in the District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order granting Consumptive Use Permit No. 114010 with the conditions specified in the Technical Staff Report and the additional condition proposed by the District and Niagara and set forth in paragraph 12, above. DONE AND ENTERED this 7th day of August, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2009.
The Issue Whether Respondent, Florida Power & Light Company, is entitled to the renewal of Permit No. FL0001562-012-IW1N, the combined Industrial Wastewater/National Pollutant Discharge Elimination System permit for the continued operation of the Turkey Point Cooling Canal System.
Findings Of Fact The Parties Respondent FPL is the largest energy company in the United States, serving more than five million customer accounts in the state of Florida. FPL owns and operates the Turkey Point Clean Energy Center ("Turkey Point"), which consists of three electrical generating units. FPL is the holder of the Permit, an industrial wastewater ("IWW")/National Pollutant Discharge Elimination System ("NPDES") permit for the Turkey Point CCS, which provides wastewater treatment and effluent disposal for two of the three electrical generating units at Turkey Point. As stated above, FPL is the applicant for the Renewal Permit that has been challenged in this proceeding. Respondent DEP is the state agency authorized to regulate the construction and operation of wastewater treatment and effluent disposal facilities, pursuant to chapter 403, Florida Statutes, and implementing rules. As part of its responsibilities, DEP issues permits to authorize the treatment and discharge of industrial wastewater under the state industrial wastewater program, and the federal NPDES program pursuant to delegation from the United States Environmental Protection Agency ("EPA").4 Petitioner FKAA is a public water supply utility authority, established pursuant to chapter 76-441, Laws of Florida. It is responsible for providing potable water services in Monroe County, and domestic wastewater and reclaimed water services to select areas within its geographic jurisdiction. FKAA operates a potable water wellfield in Florida City, Florida, approximately 9.5 miles west of the CCS that withdraws water from the Biscayne Aquifer. Petitioner FKFGA is a volunteer association comprised of professional fishing guides who conduct business, and engage in conservation and education activities, in and around south Florida. Intervenor Monroe County is a county and political subdivision of the state of Florida, the geographic boundaries of which include the Florida Keys, the Florida Keys National Marine Sanctuary, and a portion of Biscayne Bay. Monroe County receives its potable drinking water services from FKAA. 4 The NPDES program is a federal pollution control program established by the Clean Water Act at 33 U.S.C. §1342, the purpose of which is to control point source discharges of industrial and domestic wastewater and stormwater into navigable waters of the United States. The Turkey Point Clean Energy Center and the CCS Turkey Point is an electrical generating facility located on approximately 11,000 acres in unincorporated southeast Miami-Dade County. Its business address is 9760 Southwest 344th Street, Florida City, Florida. The Biscayne National Park is east of, and adjacent to, the facility, and the Biscayne Bay Aquatic Preserve is located northeast, east, and southeast of the facility. The Model Land area, which is a tract of freshwater and brackish wetlands, is generally located to the north, west, and south of the CCS. Several water management canals are located in close proximity to Turkey Point. Specifically, the South Florida Water Management District's ("SFWMD") L-31E Canal, C-106 North Model Land Canal, and C-107 South Model Land Canal are located west of the CCS. Additionally, the Card Sound Road Canal is located west and southwest of the facility, and discharges into Biscayne Bay south of the CCS. The SFWMD S-20 Discharge Canal is located west and south of the CCS, and the Sea-Dade Canal is south of the facility; these canals discharge into Biscayne Bay south of the CCS. Additionally, remnant once-through cooling water canals are located at Turtle Point and the Barge Basin, at the eastern boundary of the facility. These canals have been plugged, so that they no longer are connected to Biscayne Bay. As stated above, Turkey Point currently consists of three electrical generating units: Units 3 and 4, which are nuclear units; and Unit 5, which is a natural gas-fired combined-cycle unit. These electrical generating units are authorized pursuant to the Certification. The Turkey Point facility is the only baseload electrical generating facility that serves the critical load area of Miami-Dade County, Florida. The CCS consists of a network of canals covering approximately 5,900 acres and providing wastewater treatment and effluent disposal for Units 3 and 4, as well as functioning like a radiator to dissipate heat from the cooling water generated by the operation of these units. The heated cooling water is discharged into the CCS at an internal outfall located at the northwest end of the CCS. Water pumps and gravity circulate the heated water in a counterclockwise direction, north to south, through the CCS, dissipating heat as the water flows through the CCS. Once the cooling water has circulated through the CCS, it is pumped back into Units 3 and 4 at the northeast end of the CCS for reuse as cooling water for those units. The CCS was excavated into sediments and limestone that are part of the surficial Biscayne Aquifer. The CCS is not lined, so there is no physical barrier that prevents water in the canals from entering the Biscayne Aquifer ground water beneath the CCS. Most of the canals comprising the CCS are between three and four feet deep, with an approximately 20-foot-deep canal that formerly was part of the once-through cooling system. A perimeter berm system blocks the CCS from having a direct connection to surface waters, and there are no water control structures, such as culverts, pipes, or pumps, which allow water to be directly discharged from the CCS into offsite surface waters. There are approximately 4.5 billion gallons of water in the CCS, on average. Although some small wastewater streams from the electrical generating units and stormwater are discharged into the CCS, the water in the CCS is comprised of rainfall, cooling water for the electrical generating units, water pumped into the CCS from the Upper Floridan Aquifer, and ground water seepage. Evaporation is the predominant means by which water leaves the CCS, and water from the CCS also seeps into ground water. Evaporation, rainfall, and water inflows from other sources affect the salinity of the water in the CCS canals. As a result of evaporation and periods of low rainfall, the salinity of the water in the CCS has increased over time. The addition of water from rainfall, ground water seepage, and other sources counteracts the effect of evaporation on salinity in the canals. Thus, the salinity of the water in the canals at any given time is driven by the balance of evaporation, water inflows, and water outflows. The Interceptor Ditch, which is located immediately west of the CCS and immediately east of the L-31E Canal, was constructed to create a hydraulic barrier between the CCS and the L-31E Canal and lands west of the L-31E Canal. Permitting History of Turkey Point and the CCS The Turkey Point electrical generating facility was constructed in the 1960s. As originally constructed, Turkey Point had a once-through cooling water system through which heated cooling water was directly discharged into Biscayne Bay. Pursuant to a 1971 Consent Decree between FPL and the U.S. Department of Justice, FPL constructed the CCS to alleviate the adverse environmental effects of the direct discharge of heated cooling water into Biscayne Bay. When the CCS was designed, the U.S. Atomic Energy Commission prepared an Environmental Impact Statement ("EIS"), which recognized that water from the CCS could seep, via ground water, into Biscayne Bay. The EIS concluded that the effect of this seepage would be insignificant and was outweighed by the benefit of stopping direct discharges of heated water from Turkey Point into Biscayne Bay. In order to construct the CCS, FPL obtained numerous permits and approvals from multiple regulatory agencies, including the U.S. Atomic Energy Commission, EPA, the U.S. Army Corps of Engineers, the Florida Water Pollution Control Board, and Miami-Dade County, Florida. FPL has operated the CCS, consistent with its original design, since 1973. EPA issued NPDES permits for the CCS, and these permits periodically were renewed. Additionally, since approximately 1982, DEP and its predecessor agency have issued industrial wastewater permits for the CCS. EPA delegated the NPDES permitting program to DEP in 1995, and since that time, DEP has issued combined IWW/NPDES permits5 for the CCS. These permits typically have been issued for a five-year period, and renewed for subsequent five-year periods. The existing Permit authorizes discharges of stormwater and industrial wastewater from the electrical generating units through internal outfalls into the CCS. The Permit does not authorize direct discharges from the CCS into surface waters of the state. The Permit authorizes discharges from the CCS into the Class G-III6 ground water underlying the CCS, provided that these discharges do not cause a violation of the minimum criteria for ground water codified in Florida Administrative Code Rules 62-520.400 and 62-520.430, and do not impair the reasonable and beneficial use of adjacent ground waters or surface waters, in violation of rule 62-520.400. In order to ensure compliance with the Permit, FPL conducts extensive monitoring7 of a range of water quality parameters in surface water, porewater, and ground water near the CCS; the seagrass, mangroves, and freshwater marshes near the CCS; and numerous environmental parameters, including rainfall, at, and proximate to, the CCS. FPL reports its data to regulatory agencies on a regular basis, and submits annual reports to 5 DEP's industrial wastewater regulatory jurisdiction extends to discharges into ground water and surface waters, while the NPDES regulatory jurisdiction extends to point source discharges into navigable surface waters. The combined IWW/NPDES permit issued by DEP covers all of these types of discharges. 6 As discussed below, Class G-III ground water has a concentration of 10,000 milligrams per liter ("mg/L") or greater of total dissolved solids. 7 As an example of the extent of FPL's monitoring associated with the operation of Turkey Point and the CCS, FPL collected over 4.5 million data points through its monitoring network for the period from June 1, 2019, to May 31, 2020. SFWMD, addressing all data collected over the previous year. FPL also provides reports to the Miami-Dade County Department of Environmental Resource Management ("DERM") regarding its remediation program at the CCS, and provides access to its monitoring data to other regulatory agencies, including DEP. The most recent version of the Permit was issued in 2005. The Biscayne Aquifer As stated above, the CCS is excavated into the sediments and limestone of the surficial portion of the Biscayne Aquifer. The Biscayne Aquifer is a water-bearing formation consisting of porous, highly permeable limestone that underlies Broward County, Miami- Dade County, parts of Palm Beach County, and parts of Monroe County. The surficial portion of the Biscayne Aquifer is connected to surface waters, including Biscayne Bay, and to the CCS and other canals in south Florida that are excavated to sufficient depth to connect to the surficial aquifer. The Biscayne Aquifer contains both saltwater and fresh water. Saltwater enters the aquifer from Biscayne Bay, canals containing saltwater, and saltwater wetlands. Fresh water enters the aquifer from rainfall, canals containing fresh water, and freshwater wetlands. The transmissivity of the Biscayne Aquifer varies. Generally, the horizontal transmissivity is greater than the vertical transmissivity in the aquifer, and the horizontal transmissivity varies between different layers of the aquifer. In the vicinity of the CCS, the shallowest portions of the aquifer, from land surface to approximately 20 feet below land surface, are less transmissive than some deeper portions of the aquifer. Beneath this shallow portion of the aquifer, there are three more transmissive, preferential flow zones through which water flows more readily: the Upper Flow Zone, located approximately 25 to 35 feet below ground surface; the Lower Flow Zone, located approximately 50 to 65 feet below ground surface; and the Deep Flow Zone, located approximately 70 to 80 feet below ground surface. Portions of the Biscayne Aquifer serve as the primary drinking water source for portions of southern Florida, including Miami-Dade and Monroe counties. The FKAA operates a potable water wellfield, located approximately 9.5 miles west of the CCS in Florida City, that withdraws water from the Biscayne Aquifer. The portions of the Biscayne Aquifer immediately west of the CCS are not used as a potable water source, and there are no drinking water wells in the portion of the Biscayne Aquifer where hypersaline water is present. For purposes of these proceedings, the saltwater interface is the location in the aquifer at which Class G-II and G-III ground water intersect. The saltwater interface is not a vertical line, but, rather, is wedge-shaped, with the lighter, more buoyant fresh water above, and the denser, heavier saltwater below. The location of the saltwater interface changes, depending on hydrologic conditions. Before the substantial drainage of, and development in, south Florida, the saltwater interface was located at the edge of Biscayne Bay in many locations. As a result of the construction and operation of drainage canals, wellfields, water withdrawals, mining activities, and land use practices throughout the 20th century, the saltwater interface has moved inland. By 1955, the saltwater interface already was located west of where the CCS is now located. Thus, by the time the CCS was constructed and became operational in 1973, saline water already had intruded inland along the coast, and saline ground water existed beneath the CCS site and in the deeper portions of the aquifer west of the current location of the CCS. Thus, portions of the Biscayne Aquifer located west of the CCS did not meet Class G-II8 ground water quality standards, even before construction and operation of the CCS. Additionally, due to sea level rise and other factors, the saltwater interface in the Biscayne Aquifer generally is continuing to move inland in southeast Florida. Interaction of the CCS with Ground Water The ground water under the CCS westward to the L-31E Canal is classified as Class G-III ground water, which is non-potable ground water. At the time the CCS was constructed and began operation, the water in the canals had an average salinity of approximately 34 practical salinity units ("PSU"), close to that of Biscayne Bay. Over time, the salinity of the water in the CCS has increased, primarily due to evaporation, which leaves salt behind. By the early 2000s, the salinity level of the water in the CCS had significantly increased. By 2015, the average salinity of the water in the CCS averaged 50 to 60 PSU and peaked at close to 90 PSU. As the water in the CCS became more saline,9 it became more dense than the water in the portion of the aquifer immediately underlying the CCS. As a result, the saline water sank out of the CCS into the underlying ground water until it reached the bottom of the aquifer, approximately 80 feet below land surface. From there, the saline water spread horizontally, primarily westward due to the hydraulic head pressure of seawater to the east. By 2013, a body of hypersaline ground water (referred to, for purposes of these proceedings, as the "hypersaline plume") extended 1.5 to 2.5 miles west of the CCS. Due to its greater density, the hypersaline plume is located 8 As discussed below, Class G-II ground water is potable ground water having a total dissolved solids concentration of less than 10,000 mg/L. 9 This term generally means that the water has a salinity level greater than seawater. at the bottom of the Biscayne Aquifer, with less saline water immediately above it, and fresher water floating near the surface of the aquifer. Over the approximately 48 years of operation of the CCS, the saltwater interface has moved approximately one to 1.5 miles westward from its location when the CCS was constructed and began operating. To date, the greatest westward extent of the saltwater interface is at a point along the Card Sound Road Canal, west and southwest of the CCS, and near the Florida City Canal, north of the CCS. Administrative Enforcement and Remedial Measures Pursuant to the Certification for Turkey Point, starting in 2009, FPL implemented an extensive surface water and ground water monitoring program to determine the vertical and horizontal extent of saline CCS water and its effects on existing and projected surface water and ground water resources. Specifically, FPL installed an extensive water quality monitoring network consisting of 42 ground water monitoring wells and 33 surface water monitoring stations. Each ground water monitoring well consisted of a station comprised of a cluster of three wells: a deep well, an intermediate well, and a shallow well. The ground water monitoring wells and surface water monitoring stations measured and recorded salinity, specific conductance, and other parameters, at established frequencies. As a result of this monitoring program, FPL has collected a substantial amount of data, which has been analyzed and submitted in reports to various regulatory agencies and entities, including SFWMD and DEP. Based on the monitoring data and analysis, in 2013, SFWMD issued a letter to FPL, concluding that the Interceptor Ditch was effective in restricting the westward movement of saline water from the CCS in the upper portion of the aquifer, but was not effective in restricting the movement of saline water from the CCS into the deeper portions of the Aquifer. SFWMD concluded that, as a result of the operation of the CCS, saline water has moved westward of the L-31E Canal. Also based on the monitoring data and analysis, and in consultation with SFWMD and other regulatory entities, DEP determined that the westward migration of saline water from the CCS needed to be abated to prevent further harm to waters of the state, and that, in order to do so, the water in the CCS needed to be freshened to a salinity of approximately 34 PSU. In December 2014, DEP issued Administrative Order 14-0741, directing FPL to develop a CCS salinity management plan to reduce the salinity of the CCS, in order to abate the westward movement of saline CCS water into Class G-II ground water. The Administrative Order was challenged by third parties, and, following an administrative hearing in DOAH Case Nos. 15-1746 and 15-1747, DEP issued a Final Order on April 21, 2016, approving the Administrative Order and the remedial measures established therein.10 On April 1, 2016, the Siting Board issued a Final Order in OGC Case No. 14-051, DOAH Case No. 15-1559EPP,11 approving the modification of the Certification, to authorize FPL to construct and operate two wells to withdraw up to 14 million gallons per day ("mgd") of water from the Upper Floridan Aquifer and discharge that water into the CCS as part of the salinity management plan to lower the salinity of the water in the CCS. On April 25, 2016, DEP issued a Warning Letter to FPL, stating that water quality sampling indicated that water originating in the CCS was reaching tidal surface waters connected to Biscayne Bay, possibly violating surface water quality standards and ground water quality standards. Also on April 25, 2016, DEP issued a Notice of Violation ("NOV"), incorporating findings in DEP's Final Order in DOAH Case Nos. 15-1746 10 DEP entered a Final Order approving the Administrative Order, which was appealed by one of the parties, Atlantic Civil, Inc. ("ACI") in DCA Case No. 3D16-978. ACI ultimately dismissed its appeal. 11 ACI and other third parties unsuccessfully challenged the modification of the Certification, authorizing the construction and operation of these wells to freshen the CCS. and 15-1747. These findings were that the CCS is the major contributing cause of the continued westward movement of the saltwater interface; that the discharge of saline CCS water into ground water contributes to saltwater intrusion; and that saltwater intrusion into the aquifer west of the CCS is impairing the reasonable and beneficial use of adjacent G-II ground water, in violation of rule 62-520.400. Among other things, the NOV directed FPL to consult with DEP to determine appropriate abatement and remediation measures to address the violations identified in the NOV. In May 2016, FPL submitted to DEP nutrient monitoring results from surface water quality monitoring stations in deep channels in Biscayne Bay adjacent to the CCS. Based on the surface water quality monitoring results, DEP determined, and found in the Consent Order, that no violations of surface water quality standards in Biscayne Bay had occurred due to operation of the CCS. On June 20, 2016, FPL and DEP executed a Consent Order to address the ground water quality violations identified in the NOV and to preemptively address future surface water quality violations which were the subject of the Warning Letter. The Consent Order was not timely challenged, so became final agency action and is in effect. To address ground water violations identified in the NOV, and to help ensure that surface water quality standards are not violated in the future, the Consent Order established three objectives: (1) ceasing discharges from the CCS that impair the reasonable and beneficial use of the G-II ground water to the west of the CCS, in violation of rule 62-520.400; (2) preventing releases of ground water from the CCS into surface waters connected to Biscayne Bay that exceed surface water quality standards in Biscayne Bay; and (3) providing mitigation for environmental impacts related to the historic operation of the CCS. The Consent Order identified specific measures for achieving these objectives; established standards for determining compliance with the objectives and measures; and established timeframes for implementing the measures to accomplish the objectives. To achieve the first objective, the Consent Order directed FPL to engage in freshening activities by pumping essentially fresh water from the Floridan Aquifer into the CCS, as authorized under the modification to the Certification12 to reduce the salinity of the water in the CCS to an average annual salinity of 34 PSU. To implement this remedial measure, FPL installed five wells, having a collective pumping capacity of 14 mgd, to pump brackish water from the Floridan Aquifer into the CCS to reduce the overall salinity of the water in the CCS. The Consent Order established a specific schedule for meeting this target salinity level, and, if necessary, requires FPL to submit a plan containing additional measures to meet that salinity level. FPL began implementing these freshening measures in November 2016, and the CCS had reached a salinity of 34 PSU by November 2020; however, FPL did not achieve the 34 PSU target on an average annual basis because there was less rainfall than in the ten-year period of record on which the freshening plan was based. As previously noted, FPL has proposed additional freshening measures, as required by the Consent Order; however, that proposal, which would be addressed by modifying the Certification, is in the early stages of review and addressed in, or authorized by, the Renewal Permit.13 FPL also has implemented a thermal efficiency plan, as required by the Consent Order, to maintain the water in the CCS at a lower temperature in order to reduce evaporation. 12 Neither the freshening activity authorized in the Certification nor the freshening activity recently proposed by FPL—which, if approved, would be authorized by a modification of the Certification—are authorized by the Renewal Permit. Therefore, these activities are not within the scope of these proceedings. 13 Refer to notes 3 and 12, above. Another key component of the Consent Order aimed at accomplishing the first objective was to require FPL to halt the migration of the hypersaline plume of water seeping from the CCS within three years of the commencement (i.e., May 15, 2018) of the remediation measures, and to reduce the westward extent of the hypersaline plume back to the L-31E Canal within ten years of commencement of the remediation measures.14 To withdraw the hypersaline plume eastward to the L-31E Canal, FPL has installed a Recovery Well System ("RWS"), consisting of ten wells located along the northern and western boundary of the CCS. These wells, which are cased to the Lower Flow Zone of the Biscayne Aquifer, collectively withdraw hypersaline water from the bottom hypersaline plume at a rate of 15 mgd. The hypersaline water removed by the wells is injected, by deep underground injection control wells, into the Floridan Aquifer Boulder Zone, a deep isolated geological formation which does not contain potable water and is used for the disposal of domestic and industrial wastewater. As further discussed below, operation of the RWS creates a hydrologic barrier to prevent water beneath the CCS from flowing west of the boundary of the CCS, and also functions as a remediation measure by drawing hypersaline water that previously had migrated westward from the CCS, back to the L-31E Canal. The Consent Order provides that the westward migration of the hypersaline plume will be deemed halted when the third Continuous Surface Electromagnetic Mapping ("CSEM") survey shows no net increase in hypersaline water volume and no net westward movement in the leading edge of the hypersaline plume. As stated above, the RWS became operational on May 15, 2018. 14 The rate of discharge of water from the CCS into ground water is directly related to the salinity level of the water in the CCS, with more saline water discharging at a greater rate than less saline water. Reducing the salinity of water in the CCS will reduce the rate of discharge into ground water, and also will reduce the salinity gradient that pushes ground water westward from the CCS. Once the water in the CCS no longer is hypersaline, there will be no further discharge of hypersaline water into the aquifer. To accomplish the second objective of the Consent Order, FPL filled in the Turtle Point Canal and the Barge Basin Canal in order to reduce the potential for CCS-origin ground water to flow or seep into surface waters at these locations. In addition, FPL has implemented a nutrient management plan to reduce nutrient concentrations in the water in the CCS and has undertaken other measures, further discussed below, to mitigate for the impacts of the hypersaline plume. The Renewal Permit On or about October 22, 2009, FPL timely filed the application (hereafter, "Application") to renew Permit No. FL0001562-012-IW1N with DEP, requesting authorization for the continued operation of the CCS as a wastewater treatment and effluent disposal facility for the Turkey Point electrical generating facility. Because FPL timely filed the Application,15 the validity period of the Permit was administratively extended, so that the 2005 version of the Permit is the current operative regulatory authorization for the CCS. Pursuant to rule 62-620.335(3), the 2005 version of the Permit remains in effect until a final order is issued in these proceedings, approving or denying the Renewal Permit. DEP reviewed the Application and supporting information and determined, based on those submittals; an analysis of FPL's Annual Remedial Action Annual Status Reports ("RAASRs"); the Electronic Document Management System ("EDMS," also known as "OCULUS") database for the Turkey Point facility; and data and information provided by third parties and other regulatory agencies, including SFWMD and DERM. In addition, consistent with federal and state rule requirements, DEP 15 The Application was filed at least 180 days before expiration of the Permit. See Fla. Admin. Code r. 62-620.335(1), (3). coordinated with EPA regarding renewal of the Permit; EPA did have any objections to issuance of the Renewal Permit DEP complied with all applicable permit application review process requirements, pursuant to rule 62-620.510. On January 2, 2019, DEP issued a Notice of Draft Permit, which was published in the Miami Herald on January 15, 2019. A public notice announcing a public meeting on the Draft Permit was published in the Miami Herald on April 4, 2019, and a public meeting on the Draft Permit was held in Homestead, Florida, on May 7, 2019. Additionally, DEP received public comment through May 21, 2019. Pursuant to the comments received and input at the public meeting, DEP made approximately 28 revisions to the Draft Permit. On April 20, 2020, DEP issued the Notice of Intent to Issue the Renewal Permit. The Notice of Intent was published in the Miami Herald on April 23, 2020, Petitioners and Intervenor received written notice on April 22, 2020. After receiving an extension of time to challenge the proposed issuance of the Renewal Permit, on June 4, 2020, FKAA and FKFGA each timely filed a separate petition for administrative hearing, challenging the proposed issuance of the Renewal Permit. The Renewal Permit authorizes FPL to continue to operate the CCS as a wastewater treatment and effluent disposal facility; establishes numeric and narrative limits for constituents in the water leaving the CCS; establishes extensive surface water, ground water, and pore water monitoring requirements, and establishes requirements regarding operation of the CCS. There are no new surface water or ground water discharges authorized by the Renewal Permit. Like the Permit issued in 2005, the Renewal Permit is a "no discharge" NPDES permit, in that it does not authorize a direct point source discharge to surface waters. Consistent with the 1972 EIS prepared for the construction of the CCS, the Renewal Permit continues to authorize seepage of CCS water into surface waters, provided that such seepage does not cause or contribute to a violation of applicable surface water quality standards and criteria established in Florida Administrative Code Chapter 62-302 and does not impair the designated use of contiguous surface waters. The Renewal Permit also continues to authorize the diffuse discharge of CCS water into Class G-III ground water, provided such discharge meets the water quality standards in rules 62-520.400, 62-520.420, and 62-430 applicable to Class G-III ground water and does not impair the reasonable and beneficial use of adjacent ground waters. The Renewal Permit establishes a compliance schedule for meeting this condition that is consistent with the timeframes set forth in the Consent Order for halting the westward migration of the hypersaline plume of water from the CCS and retracting the hypersaline plume back to the L-31E Canal.16 Specifically, Renewal Permit paragraphs I.1. and VI.8 through VI.10 require that the westward migration of the hypersaline plume from the CCS be halted within three years of commencement of the remedial measures established in the Consent Order, and that the hypersaline plume be retracted back to the L-31E Canal within ten years of commencement of those remedial measures. Compliance with these requirements is determined by CSEM surveys. As stated above, the remedial measures were commenced on May 15, 2018, so the westward migration of the hypersaline plume must be halted by May 16, 2021, and the hypersaline plume must be retracted back to the L-31E Canal by May 16, 2028.17 As further discussed below, the competent substantial evidence establishes that by implementing the RWS, FPL already is meeting the 16 The Renewal Permit refers to the Consent Order, and imposes a compliance schedule for halting and retracting the hypersaline plume that is consistent with specified provisions of the Consent Order, but it does not incorporate the Consent Order. 17 FPL's progress in meeting these compliance milestones, in order to demonstrate reasonable assurance that it will comply with the Renewal Permit's ground water-related conditions, is discussed below. requirement to halt the westward migration of the hypersaline plume from the CCS, and is on track to meet the requirement to withdraw the hypersaline plume back to the L-31E Canal within the timeframe set forth in the Renewal Permit. The Renewal Permit provides that if the compliance milestone established in paragraph VI.9, regarding halting the westward migration of the hypersaline plume, is not met, as determined by the CSEM surveys, FPL must develop and submit a plan for halting the westward migration of the hypersaline plume with the compliance schedule established in the Renewal Permit. The Renewal Permit also provides that at the conclusion of the fifth year of implementing the remedial measures—i.e., May 16, 2023—FPL must evaluate and report to DEP regarding the effectiveness of the remedial measures in retracting the hypersaline plume back to the L-31E Canal by May 16, 2028. If FPL's evaluation shows that such measures are not sufficient to achieve the hypersaline plume ten-year retraction requirement, FPL must provide an alternate plan for DEP review and approval to achieve this requirement. The Renewal Permit authorizes the continued operation of internal outfalls that discharge plant process water and stormwater to the CCS. The Renewal Permit imposes additional protective measures in order to provide reasonable assurance that surface and ground water quality standards will be met by operation of the CCS. Specifically, these measures include a new ground water monitoring group, Ground Water Monitoring Group G-001, which consists of cluster wells that sample ground water at shallow, intermediate, and deep depths, at 20 specified locations in the relative vicinity of the CCS—specifically, west of the L-31E Canal; west of the south-central portion of the CCS; south of the CCS; Southwest Model Lands; Northwest Model Lands; west-central Model Lands; West of Card Sound Canal Road; Biscayne Bay channel entrance to the Barge Basin; Biscayne Bay east of the CCS; north of the CCS; in the central portion of the CCS; Biscayne Bay southeast of the CCS; the northwest corner of the CCS; east of the south-central portion of the CCS; east of the L- 31E Canal, adjacent to the S-20 water control structure; Model Lands west of the L-3 well; Model Lands west of the Florida City Canal—and one deep well adjacent to the City of Homestead baseball complex; the L-3 well sampling at two depths; the L-5 well sampling at two depths; the G-28 well sampling at two depths; and the G-21 well sampling at two depths. These ground water monitoring wells will sample and monitor numerous ground water parameters, including specific conductance; salinity; total dissolved solids ("TDS"); chloride; sodium; nitrogen species, including total ammonia, ammonium ion, nitrate plus nitrite, and total Kjeldahl nitrogen ("TKN"); phosphorus; orthophosphate; magnesium; sulfate; sulfide; and tritium. These sampled parameters include those that Petitioners have raised in these consolidated challenges as exceeding applicable ground water and surface water standards as a result of operation of the CCS. Ground water monitoring wells TPGW-1, 4, 5, 6, 17, 18, and 19 are specifically designated for use in determining compliance with the permit requirement to retract the hypersaline plume. In addition, the Renewal Permit authorizes a new series of surface water monitoring sites, Surface Water Monitoring Group D-01A, at locations in Biscayne Bay, the L-31E Canal, the S-20 Canal, and the Card Sound Canal. Samples collected at these sites will be analyzed for a range of parameters, including TDS; salinity; specific conductance; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; phosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. These sampled parameters include those that Petitioners have raised in these consolidate challenges as exceeding applicable surface water standards as a result of operation of the CCS. The Renewal Permit also authorizes a new series of porewater18 monitoring sites, Porewater Monitoring Group D-02A, in coastal marine wetlands located north, east, and south of the CCS. Samples collected at these sites will be analyzed for a range of parameters, including TDS; salinity; specific conductance; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; phosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. These sampled parameters include those that Petitioners have raised in these consolidate challenges as exceeding applicable ground water and surface water standards as a result of operation of the CCS. Additionally, the Renewal Permit requires monitoring, at several specified monitoring locations in the CCS, of a range of parameters in non-process wastewater and stormwater discharges into the CCS through and existing internal outfall. The parameters to be sampled include total suspended solids; biochemical oxygen demand; dissolved oxygen; pH; salinity; specific conductance; TDS; nitrogen species, including total ammonia, ionized and unionized ammonium, nitrate plus nitrite, and TKN; orthophosphate; phosphorus; chlorides; chlorophyll; magnesium; sulfate; sodium; and tritium. The Renewal Permit also requires FPL to develop and implement a detailed Best Management Practices ("BMPs") Plan, the purpose of which is to prevent or minimize the generation, and potential for release, of pollutants from operation of the Turkey Point facility that would be discharged into the CCS. As discussed above, after FPL submitted the Application for the Renewal Permit in 2009, and before DEP issued the Notice of Intent to issue the Renewal Permit, DEP determined that the discharge of water from the 18 Porewater is the free water present in sediment. It is water within the interstitial distance between ground water, where ground water standards apply, and surface water, where surface water quality standards apply. Porewater sampling and analysis is a useful tool in determining whether constituents in ground water are seeping into surface water. CCS into ground water was impairing the reasonable and beneficial use of adjacent Class G-II ground water, and issued the NOV. FPL and DEP entered into the Consent Order to resolve that violation, as well as to ensure that water seeping from the CCS into ground water would not cause violations of surface water quality standards. In implementing the remediation measures required under the Consent Order,19 FPL constructed, and is operating, the RWS. As further discussed below, the RWS already has halted the westward migration of the hypersaline plume, so that the operation of the CCS under the Renewal Permit will not violate applicable ground water quality standards. Thus, when DEP issued the Notice of Intent, FPL no longer was in violation of any conditions of the Permit or applicable ground water or surface water quality standards; accordingly, DEP determined that the Renewal Permit should not be denied on the basis of a violation of any permit condition. Challenge to the Renewal Permit As discussed above, on June 4, 2020, Petitioners FKAA and FKFGA each filed a petition, challenging DEP's proposed issuance of the Renewal Permit. These challenges were referred to DOAH and respectively assigned Case Nos. 20-2967 and 20-2968. As noted above, on August 24, 2020, Monroe County filed its unopposed Motion to Intervene, challenging the proposed issuance of the Renewal Permit. Monroe County became a party to these consolidated proceedings on August 26, 2020. At their core, the Administrative Petitions and Motion to Intervene allege, in part, that continued operation of the CCS will result in the 19 The specific purpose of the Consent Order was to address and resolve the ground water quality standard violation that had resulted from the discharge of hypersaline water from the CCS into ground water. continued westward migration of the hypersaline plume, threatening drinking water and other ground water-dependent natural resources.20 The Administrative Petitions and Motion to Intervene also allege that the operational changes authorized by the Renewal Permit will increase nutrient loading, including nitrogen and phosphorus, in Biscayne Bay, thereby disrupting populations of aquatic flora and fauna, in violation of surface water quality standards. The Administrative Petitions and Motion to Intervene allege that FPL has not provided the necessary reasonable assurance that the continued operation of the CCS, through issuance of the Renewal Permit, meets the applicable statutory and rule requirements and standards. Specifically, the Administrative Petitions and Motion to Intervene allege that operation of the CCS, including discharges to ground waters and surface waters, as authorized in the Renewal Permit: (1) will impair designated uses of adjacent surface waters and ground waters, in violation of applicable surface water and ground water rules in chapters 62-302 and 62-520, respectively; (2) will cause or contribute to violations of the surface water quality standards in chapter 62-302; (3) does not adequately protect against discharges of nuisance, acutely toxic, carcinogenic, mutagenic, teratogenic, and dangerous compounds, as required by rules 62-520.400 and 62-520.430; (4) will result in discharges into ground water that will impair contiguous surface waters, in violation of rule 62-520.310(2); (5) will cause a violation of the estuary specific numeric nutrient criteria applicable 20 The Petitions also allege that adding water to freshen the CCS will increase the seepage rate of hypersaline water, resulting in maintenance or increase of the westward movement of the hypersaline plume, which will, in turn, result in the alleged harm to drinking water and natural resources. However, as discussed above, the Renewal Permit does not authorize the addition of freshening water to the CCS; that activity is required under the Consent Order— which was not challenged and is in effect—and was authorized by modification of the Certification, which also is in effect, after being unsuccessfully challenged. Therefore, any effects of freshening activities that already have been authorized, or any future freshening that may be authorized pursuant to further modification of the Certification, are not at issue in this proceeding. to Biscayne Bay which are established in rule 62-302.532(1)(h); (6) will fail to maintain and protect Biscayne Bay National Preserve, as required by rule 62-302.200(27), by virtue of being designated an Outstanding Florida Water ("OFW") and an Outstanding Natural Resource Water ("ONRW")21; (7) will fail to protect Biscayne Bay, as an OFW, pursuant to rule 62-302.700(9)(h)5. and 6.; (8) is inconsistent with the anti-degradation policy set forth in rules 62-302.300, 62-302.700, and 62-4.242(1); (9) has not been shown to be necessary or desirable under federal standards or under circumstances which are clearly in the public interest, if it is shown that the discharges from the CCS will result in water quality degradation; (10) is not in the public interest because: it is not important and beneficial to the public health, safety, or welfare, taking into account policies in rules 62-302.300 and 62-302.700; it will adversely affect the conservation of fish and wildlife, including threatened or endangered species, or their habitats; it will adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and is not consistent with any applicable surface water improvement and management plan that has been adopted by a water management district and approved by DEP; should be denied on the basis of prior permit violations, pursuant to rules 62-4.070(5) and 62-302.320(7); (12) constitutes a menace to public health; creates a public nuisance; is harmful to wildlife and to fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water, in violation of section 403.021(1) and implementing rules; (13) is inconsistent with the State of Florida's declared public policy to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies; the propagation of wildlife, fish, and other aquatic life; and domestic, agricultural, industrial, 21 Biscayne Bay has been designated as an ONRW by rule 62-302.700(10)(a); however, that designation is not in effect, and was not in effect at the time of the final hearing, because the Legislature has not enacted legislation specifically authorizing protection and maintenance of ONRWs to the extent required by federal regulation. recreational, and other beneficial uses; and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water, as provided in section 403.021(2) and implementing rules; (14) is inconsistent with the State of Florida's declared public policy, in section 403.012(5), that the prevention, abatement, and control of pollution of the air and waters of this state are affected with a public interest; (15) is inconsistent with rule 62-4.070(1) requirement that a permit shall be issued to the applicant upon such conditions as DEP may direct, only if the applicant affirmatively provides DEP with reasonable assurance, based on plans, rest results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules, and the corresponding requirement, in rule 62-4.070(2), that DEP deny any application where reasonable assurances are not provided; (16) is inconsistent with the requirement in rule 62-4.242(2)(a) that DEP not issue a permit or water quality certification for any proposed activity or discharge in an OFW, or which significantly degrades, either alone or in combination with other stationary installations, any OFWs, unless the applicant affirmatively demonstrates that the proposed activity or discharge is clearly in the public interest, and either a DEP permit for the activity has been issued or an application for such permit was complete on the effective date of the OFW designation, or the existing ambient water quality within OFWs will not be lowered as a result of the proposed activity or discharge, except on a temporary basis during construction for a period not to exceed 30 days; that lowered water quality would occur only within a restricted mixing zone approved by DEP; and that water quality criteria would not be violated outside the mixing zone; (17) will violate the prohibition in rule 61-4.242(3) that all discharges or activities that may cause degradation of water quality in ONRWs are prohibited, other than discharges that are exempted by statute from DEP permitting or regulation, or discharges or activities described in rules 62-4.242(2)(a)1.b. or c., and 62-4.242(2)(a)2.b.; (18) will violate the anti-degradation policy in rule 62-302.300(14) through (16),22 that existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected; that pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this state and shall not be allowed and that waters having water quality below the criteria established for them shall be protected and enhanced, except that DEP shall not strive to abate natural conditions; that if DEP finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any DEP rule or standard, it shall refuse to permit the discharge; that if an applicant for either a general or generic permit or renewal of an existing permit for which no expansion of discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest; and that if DEP determines that the applicant has caused degradation of water quality over and above that allowed by previous permits issued to the applicant, then the applicant shall demonstrate that this lowering of water quality is necessary or desirable under federal standards, or under circumstances which are clearly in the public interest and are limited to cases where it has been demonstrated that degradation of water quality is occurring due to the discharge; (19) will violate the requirement in rule 62-302.500(1)(a)6. and (1)(b) that surface waters remain free from man-induced non-thermal components of discharges which post a serious danger to the public health, safety, and welfare, and/or which produce conditions so as to create a nuisance; (20) will violate the requirement in rule 62-520.400(1)(f) that the permitted discharge from the 22 The petitions also allege violations of rule 62-302.300(18)(a) and (b), which have not been specifically cited. CCS shall not impair the reasonable and beneficial use of adjacent waters beyond the facility boundary; (21) will violate the requirement in rule 62-520.420 that water quality standards for Class G-II and Class G-III ground water shall not be violated; (22) will violate the requirement in rule 62-520.430 that water quality standards for Class G-III ground water shall not be violated; (23) will violate the requirement in rule 62-620.300(5) that the permitted activity is operated consistent with the proposed permit conditions; (24) will violate the requirement in rule 62-620.320(1) that a permit shall only be issued if the applicant affirmatively provides DEP with reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the wastewater facility or activity will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules; and (25) will violate the requirement in rule 62-620.320(9) that the permit conditions provide for compliance with chapter 403 and applicable DEP rules. Effect of the CCS on Offsite Surface Waters Potential for Seepage of CCS Water into Offsite Surface Waters As previously discussed, there is no direct surface water connection between the canals and water in the CCS and surface waters, including Biscayne Bay. The competent substantial evidence establishes that the berm system, as constructed, creates a relatively impermeable barrier to the direct discharge of CCS water into Biscayne Bay. Moreover, in any event, any net surface flow that could exist between the CCS and Biscayne Bay would predominantly be from east to west—i.e., from Biscayne Bay toward the CCS. Also, as previously discussed, when the CCS was constructed and became operational in the early 1970s, the EIS recognized that there was the potential for some indirect discharge of CCS water into surface waters, including Biscayne Bay, via seepage of CCS water into the ground water immediately underlying the CCS and seepage of that ground water into surface water. In order for water in the CCS to travel through ground water to surface waters, including to Biscayne Bay, three conditions must collectively exist: a pathway that allows the significant flow of water; a hydraulic gradient—i.e., energy potential difference—between the water levels in the CCS and Biscayne Bay; and sufficient time for the water to flow the distance from the CCS to Biscayne Bay, which, in turn, is dependent on the hydraulic conductivity of the geologic unit through which the water flows. If any of these conditions is not present, then water cannot flow from the CCS to Biscayne Bay or other surface waters. The Evidence Does Not Establish that there is Seepage of CCS Water into Biscayne Bay The competent substantial evidence establishes that these conditions do not collectively exist such that there is little, if any, flow or seepage of water from the CCS, via ground water, into Biscayne Bay. As discussed above, the Biscayne Aquifer generally is highly permeable; however, its permeability—and, therefore, its ability to enable significant water flow—varies at different depths and locations. The upper 20 feet of the Biscayne Aquifer is comparatively less permeable than some of the deeper layers in the aquifer. Thus, the upper portion of the Biscayne Aquifer immediately underlying the CCS does not enable any appreciable flow or seepage of ground water containing CCS water into Biscayne Bay. To this point, a comparison of the height of the water in the CCS relative to that in Biscayne Bay shows that the water height in the CCS remains relatively constant, while the water height in Biscayne Bay fluctuates with tidal cycles. This constitutes strong evidence that CCS water does not enter, or have any appreciable exchange with, Biscayne Bay surface waters through a ground water connection. The evidence also does not bear out that CCS water flows into Biscayne Bay through the more permeable preferential flow zones within the Biscayne Aquifer. CCS water may seep into the Upper Flow Zone, which is a layer of the aquifer located approximately 20 to 30 feet below the land surface that acts as a preferential flow zone; however, the competent, substantial, and persuasive evidence establishes that the Upper Flow Zone does not intersect the bottom of Biscayne Bay at any location, so that a pathway does not exist for CCS water which has seeped into the ground water in the Upper Flow Zone to ultimately seep or flow into Biscayne Bay. The competent, substantial, and persuasive evidence also shows that CCS-origin water does seep, via ground water, into Biscayne Bay through submarine springs. Some small karst depressions, which Petitioners and Intervenor have characterized as caves,23 exist in the limestone at the bottom of Biscayne Bay east of the CCS. The competent, substantial, and persuasive evidence establishes that these depressions are not deep enough to intersect the Upper Flow Zone of the Biscayne Aquifer. That CCS water does not seep into Biscayne Bay via these karst depressions is borne out by tritium data from water samples collected at the bottom of the depressions, showing that very little of the water at the bottom of the depressions is CCS-origin water, and that to the extent CCS-origin water is present in the depressions, it can be explained entirely by atmospheric deposition. Tritium is a mildly radioactive isotope of hydrogen that is naturally present in the upper atmosphere and waters distal from the Turkey Point facility at average levels of approximately 6 picocuries per liter ("pCi/L"). 23 Dr. Mark Stewart, FPL's expert hydrogeologist, testified that "caves" are solution features in limestone large enough for a person to enter, and that the karst depressions at the bottom of Biscayne Bay, immediately east of the CCS, are not large enough to be considered caves. Tritium also is created as a by-product of the nuclear reaction process, and is part of all water in the CCS, at an average level of approximately 6,000 pCi/L. Because tritium is part of the water molecule in all CCS-origin water, it is an excellent tracer for CCS-origin water. The atmospheric background level of tritium in the vicinity of the CCS averages approximately 11.2 pCi/L, due to evaporation of tritium- containing water from the CCS. By comparing tritium levels in surface water and ground water samples collected at, and in the vicinity of, Turkey Point with the natural atmospheric background tritium level, one can ascribe any tritium levels in the samples which exceed the natural background level to CCS-origin water. The level of tritium in water quality monitoring samples taken at the bottom of the karst depressions ranges between approximately 12 and 20 pCi/L, which shows that highly diluted CCS-origin water—i.e., approximately one one-thousandth of the water sample—exists in these depressions. The competent, substantial, and persuasive evidence establishes that if there were any significant groundwater seepage of CCS-origin water, via ground water, into these depressions in Biscayne Bay, the sustained tritium levels in the depressions likely would be comparable to the tritium levels of the water in the CCS. However, nowhere in Biscayne Bay, including at the bottom of these karst depressions, do tritium levels approach the 6,000+ pCi/L tritium levels of CCS-origin water that would exist if there were seepage or flow of CCS water into Biscayne Bay. Surface water samples taken in Biscayne Bay consistently show tritium levels in the range of 11 to 20 pCi/L, which is entirely explained by atmospheric deposition in the form of rainfall or water vapor, rather than by ground water seepage. To this point, Dr. Kip Solomon, FPL's expert on tritium transport in atmospheric and aqueous mediums, persuasively opined that the overwhelmingly dominant pathway for transport of tritium into Biscayne Bay is via evaporation and atmospheric deposition. This conclusion is supported by the persuasive evidence establishing that neither the karst depressions, nor any other location at the bottom of Biscayne Bay, intersect the Upper Flow Zone or any other deeper preferential flow zones in the Biscayne Aquifer. Additionally, if there were ground water seepage from the CCS into Biscayne Bay, that ground water would enter the bay through the porewater in the sediment at the bottom of the bay. However, porewater sampling in sediment at the bottom of Biscayne Bay consistently shows an average tritium level of approximately 9.3 pCi/L, which is less than the average concentration of tritium in the surface water of Biscayne Bay. This supports the conclusion that tritium likely enters Biscayne Bay at the surface of the water, consistent with an atmospheric deposition source, rather than by ground water seepage from the CCS. Ground water monitoring of tritium levels at various locations under, and in the vicinity of, the CCS, further shows that the predominant movement of tritium-containing water, via seepage from the CCS into ground water, is downward, rather than eastward. These monitoring results further support the conclusion that there is no significant seepage of CCS-origin water, via ground water, into Biscayne Bay. The competent substantial evidence also does not show the existence of a hydraulic gradient that would favor flow of CCS water, via ground water, into Biscayne Bay. The hypersaline water in the CCS is more saline, and, therefore, denser, and heavier per volume, than the seawater in Biscayne Bay, which averages between 34 and 36 PSU. Thus, any hypersaline CCS water in the Upper Flow Zone is generally denser and heavier than the seawater above it, in Biscayne Bay and the uppermost portions of the Biscayne Aquifer. This density and weight difference creates a stable stratification of ground water, with the denser, heavier hypersaline water sinking to, and present at, the lower levels, and the fresher, lighter seawater floating on the top of the stratified ground water column. This stable stratification prevents any hypersaline water that may move from the CCS eastward under Biscayne Bay from rising in the stratified water column up into the bay. Additionally, as discussed above, the water levels in Biscayne Bay typically are higher than the water levels in the CCS, even at low tide in the bay. The lowest water levels in the CCS are on its eastern side, closest to Biscayne Bay, due to operation of the CCS pumps, which pump the water counterclockwise through the CCS, starting at its northwestern corner and ending at its northeastern corner. The difference in the water levels between the CCS and Biscayne Bay creates a hydraulic gradient that results in a net flow of water from east to west—i.e., toward the CCS, rather than toward Biscayne Bay. FPL's expert hydrogeologist, Stewart, determined that for the period from 2011 to 2018, there was a westward hydraulic gradient, favoring water movement from east to west, 70 to 75 percent of the time, and that in the relatively short period when an eastward gradient existed—in 2015, an outlier period during which the CCS water levels were at historic highs—the duration of that eastward gradient was insufficient to allow CCS-origin water to flow to and reach Biscayne Bay. Thus, the prevailing westward hydraulic gradient significantly limits the potential for CCS-origin water to flow or seep into areas beneath Biscayne Bay or reach surface waters in Biscayne Bay. Additionally, the competent substantial evidence establishes that there is no significant flow of ground water from the CCS into Biscayne Bay via the Turtle Point Canal or Barge Basin Canal. These canals, which are located at the northeast corner of the Turkey Point facility, are remnants of the cooling water pass-through system that existed before construction of the CCS. Pursuant to the Consent Order, FPL filled these canals specifically to reduce the potential for CCS water to flow, via ground water seepage or flow, into Biscayne Bay. The Turtle Point Canal previously was approximately 20 feet deep, but has been almost completely filled,24 as required by the Consent Order. The Barge Basin Canal, which provides water access to Turkey Point, previously was approximately 30 feet deep; this canal has been filled, pursuant to the Consent Order, to a depth of approximately nine feet, which is the depth of the channel in Biscayne Bay leading to it. If these canals had constituted a significant source of CCS water discharge into Biscayne Bay before they were filled, a stable, density- stratified, high-salinity and high-tritium layer of water would have filled the canal cuts. However, sampling at the canal sites before they were filled did not indicate the existence of such conditions. This shows that even before the canals were filled, they likely were not a significant source of discharge of CCS-origin water into Biscayne Bay. Moreover, the tritium data collected through water quality monitoring at the Turtle Point and Barge Basin canals shows that tritium levels are very similar to those in the surface water of Biscayne Bay, further indicating that there is no significant flow or seepage of CCS-origin water, via ground water connection through these canals, into Biscayne Bay. In sum, the competent, substantial, and persuasive evidence establishes that there is little, if any, seepage or flow of CCS-origin water into Biscayne Bay. The Evidence Does Not Establish that CCS Water Seeps into Offsite Canals Additionally, the competent substantial evidence does not show that CCS-origin water is seeping, via ground water, to offsite canals or surface waters west of the CCS. As discussed above, the Interceptor Ditch is located immediately to the west of the CCS. As previously noted, it was constructed for the purpose 24 The Turtle Point Canal also has been plugged with a dam consisting of bentonite clay, which has very low permeability so acts as an effective barrier to water flow or percolation. of creating a hydraulic barrier between the CCS and the L-31E Canal and lands west of the L-31E Canal. The water level in the Interceptor Canal is maintained at a level that establishes an eastward hydraulic gradient from the L-31E Canal to the CCS, so that shallow surface flow from the CCS to the west is restricted. Tritium analysis of the surface water in the L-31E Canal shows that very little, if any, CCS water is seeping or flowing into the L-31E Canal. The competent substantial evidence further establishes that, since FPL's operation of the RWS beginning in 2018, the hydraulic gradient is toward the wells in the RWS, rendering it highly unlikely that CCS water is seeping or flowing into the L-31E Canal. There are other canals located west and south of the CCS. These include the S-20 Discharge Canal, which is located west and south of the southern end of the CCS, and the Card Sound Road Canal and Sea-Dade Canal, both which are located west and south of the CCS. The same hydrological principles that govern the potential for ground water seepage toward Biscayne Bay govern the potential for ground water seepage to the offsite canals. Specifically, there must be a ground water pathway through which water can readily travel from the CCS to the offsite canals; a hydraulic gradient favoring the movement of water from the CCS toward the offsite canals must exist; and the hydraulic gradient must exist for a sufficient duration to allow water seeping from the CCS to reach the canals. The competent, substantial, and persuasive evidence does not establish that pathway exists for CCS-origin water to seep into the L-31E Canal. The L-31E Canal is approximately 15 to 18 feet deep, so is not deep enough to intersect the Biscayne Aquifer Upper Flow Zone. Additionally, the hydraulic gradient does not favor flow or seepage of ground water from the CCS into the L-31E Canal. As noted above, the water level in the Interceptor Ditch is maintained at a lower water elevation than in the L-31E Canal, so there is a continual west to east gradient, from the L-31E Canal toward the CCS. Moreover, and importantly, because the RWS has been implemented along the western boundary of the CCS, the hydraulic gradient of ground water is toward the RWS, such that any ground water seeping westward from the CCS is intercepted by the RWS and pumped into the Boulder Zone of the Floridan Aquifer; thus, that water cannot seep into the L-31E Canal. The S-20 Discharge Canal, Card Sound Road Canal, and Sea-Dade Canal are all approximately 18 feet deep—too shallow to intersect the Upper Flow Zone, which would constitute the pathway for CCS-origin water to seep, via ground water, into these canals. Water quality monitoring data in and around the S-20 Discharge Canal, Card Sound Road Canal, and Sea-Dade Canal indicates that little, if any, CCS-origin water reaches these offsite canals via ground water seepage. Additionally, the tritium data does not show significant CCS-origin water seepage or flow, via ground water, into these canals. Water quality data collected in 2015 and 2016 indicates that the Turtle Point Canal and Barge Basin Canal may have intersected the Upper Flow Zone, so that CCS-origin water could have seeped into these canals. However, as discussed above, as required by the Consent Order, these canals have been filled with a bentonite slurry wall down to a depth of approximately 30 feet below land surface, so that they no longer intersect the Upper Flow Zone. In sum, the competent, substantial, and persuasive evidence shows that there is very little, if any, seepage of CCS-origin water, via ground water, into the canals or other surface waters proximate to the Turkey Point facility. The Evidence does not Establish that the CCS Causes Surface Water Quality Violations or Degrades Water Quality in Biscayne Bay Because there is no surface water connection of the CCS to Biscayne Bay, to the extent nutrients—i.e., phosphorus and nitrogen—were to seep or flow from the CCS into Biscayne Bay, the only mechanism by which these nutrients in CCS water could reach Biscayne Bay would be through seepage of CCS-origin water into ground water, and then up into the bay. Further to this point, dissolved nutrients generally do not travel with water molecules that evaporate. Therefore, unlike tritium, nutrients cannot be atmospherically deposited into Biscayne Bay via water vapor or rain. As discussed above, the competent, substantial, and persuasive evidence establishes that the Upper Flow Zone of the Biscayne Aquifer does not intersect the bottom of Biscayne Bay, so there is no significant pathway for CCS water carrying dissolved nutrients to flow or seep into Biscayne Bay. Additionally, as discussed above, even if a pathway existed for CCS water to flow or seep, via ground water, into Biscayne Bay, the predominant westward hydraulic gradient, which is from Biscayne Bay toward the CCS, significantly limits the potential for CCS-origin water carrying dissolved nutrients to seep or flow, via ground water, into the surface waters of the bay. Also, as discussed above, to the extent a short-lived eastward hydraulic gradient were to exist, the evidence establishes that it is not of sufficient duration to enable CCS water to reach Biscayne Bay surface waters. The competent substantial evidence also establishes that, in any event, the water in the CCS does not contain excessive amounts of phosphorus and nitrogen. As noted above, FPL has implemented a nutrient management plan. Therefore, even if a pathway, hydraulic gradient, and sufficient time for seepage of water from the CCS into Biscayne Bay all existed, the CCS does not constitute a significant potential source of nutrient pollution. Furthermore, because phosphorus is biologically active, and because the movement of nitrogen and phosphorus dissolved in CCS water is retarded by physical and geochemical processes as the water flows through the sediments comprising the aquifer, to the extent CCS water were to seep, via ground water, into Biscayne Bay, nutrient concentrations in that water would be even less than that of tritium25—i.e., less than one-one thousandth of the water sample—so would not constitute a significant source of nutrient input into Biscayne Bay. Compliance with Numeric and Narrative Nutrient Criteria Biscayne Bay is classified as a Class III marine water body, pursuant to rule 62-302.400(1), which means that the specific water quality standards applicable to the water body are established to protect fish consumption, recreation, and the propagation of a healthy, well-balanced population of fish and wildlife. Rule 62-302.530 codifies numeric and narrative surface water quality criteria for a range of constituents. With respect to total phosphorus and total nitrogen, rule 62-320.530(48)(a) and (48)(b) establish narrative criteria.26 Specifically, rule 62-302.530(48)(a) requires that the discharge of nutrients shall be limited as needed to prevent violations of other standards contained in chapter 62-302, regarding surface water quality standards. The rule further states that man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of rules 62-302.300, 62-302.700, and 62-4.242. Additionally, rule 62-302.530(48)(b) provides that "[i]n no case will nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." 25 As discussed above, tritium is an excellent tracer of CCS-origin water because it is part of the water molecule in all CCS-origin water. Because dissolved nitrogen and phosphorus ions are not part of the water molecule, and physically and chemically react with the sediment comprising the aquifer, they would be present in smaller concentrations than tritium in CCS- origin water. 26 DEP has not adopted generally applicable Class III surface numeric water quality standards for total phosphorus or total nitrogen. Rule 62-302.531, titled Numeric Interpretations of Narrative Nutrient Criteria, requires that the narrative water quality criterion for nutrients set forth in rule 62-302.530(48)(b) be numerically interpreted for nutrients (i.e., total phosphorus and total nitrogen) and nutrient response variables (i.e., chlorophyll-a),27 in a hierarchical manner. Fla. Admin. Code R. 62-302.531(2). Numeric nutrient criteria generally are developed by determining a threshold level of nutrients in a water body beyond which additional nutrients will cause an imbalance in the flora and fauna. Importantly, the rule provides that when a site-specific interpretation of the narrative criterion in rule 62-302.530(48)(b) has been established, that numeric interpretation will constitute the primary interpretation for that criterion. Fla. Admin. Code R. 62-302.531(2)(a). Thus, pursuant to this rule, for locations for which DEP has adopted site-specific numeric interpretations of the narrative criteria, those site-specific numeric nutrient criteria are used to determine whether there is an exceedance of the narrative nutrient criterion. In rule 62-302.532, titled Estuary Specific Numeric Interpretations of the Narrative Nutrient Criterion, DEP has established site-specific numeric interpretations of the narrative criterion for the estuaries in Florida. With respect to Biscayne Bay, DEP has adopted numeric nutrient criteria for total nitrogen, total phosphorus, and chlorophyll-a that are applicable to specific areas of Biscayne Bay called Estuary Nutrient Regions ("ENRs"). ENRs are regions in the Bay which have similar physical and biological characteristics. The ENR-specific numeric nutrient criteria were adopted to maintain nutrient levels within the ENR at concentrations consistent with the very low nutrient levels that existed in the 1970s, pre-development of much of the area around Biscayne Bay. 27 Chlorophyll-a is a nutrient response variable that can be used as an indicator of algal biomass in a water body. In order to maintain healthy conditions in the ENR, the numeric nutrient criteria for nitrogen, phosphorus, and chlorophyll-a all must be met for that ENR. These site-specific numeric nutrient criteria are codified in rule 62-302.532(1)(h), which went into effect on July 3, 2012. To determine compliance with the numeric nutrient criteria adopted for a specific ENR, water quality sampling for each nutrient is conducted in that ENR at least four times per year, with one sampling event in the winter and one in the summer. In order for the water quality within an ENR to be in compliance with the numeric nutrient criteria established for that ENR, the numeric nutrient criterion for the specific nutrient cannot be exceeded more than once in a three-year period. The ENRs that are immediately proximate to the CCS are ENR H1 (Card Sound Estuary), ENR H6 (South Central Inshore Estuary), and ENR H7 (South Central Mid-Bay Estuary). Russell Frydenborg, who served as a water quality program administrator with DEP and had substantial involvement in developing the site-specific numeric nutrient criteria for the ENRs in Biscayne Bay, presented testimony and supporting evidence regarding compliance with the numeric nutrient criteria in these ENRs. The water quality monitoring data for ENRs H1, H6, and H7 show, for the period from 2013 to 2020, there were no exceedances of the total phosphorus numeric nutrient criterion in ENRs H1, H6, and H7. Accordingly, the numeric nutrient criterion for total phosphorus is being met in the ENRs immediately proximate to the CCS. For the period from 2013 to 2020, the water quality monitoring data for ENRs H1, H6, and H7 show that the numeric nutrient criterion for total nitrogen was exceeded once, in 2018, in ENR H6. However, because the criterion was exceeded only once during the sampling period, which is longer than the three-year period necessary for compliance, the water quality within each of these ENRs was in compliance for total nitrogen over the sampling period. Accordingly, the numeric nutrient criterion for total nitrogen is being met in the ENRs immediately proximate to the CCS. The competent, substantial, and persuasive evidence establishes that the proposed surface water monitoring stations included in the Application for the Renewal Permit are located such that they will accurately detect any potential exceedances of the numeric nutrient criteria in ENRs H1, H6, and H7. The water quality monitoring data for ENRs H1, H6, and H7 show that over the period from 2013 to 2020, the numeric nutrient criterion for chlorophyll-a was exceeded once, in 2017, in ENR H7. Again, because the criterion was exceeded only once during the sampling period—which is longer than the three-year period necessary for compliance—the water quality within each of these ENRs was in compliance for chlorophyll-a over the sampling period. Kenneth Weaver, DEP's program administrator who oversees the development and administration of water quality standards, also testified regarding the results of water quality monitoring for chlorophyll-a, total nitrogen, and total phosphorus conducted over a 20-year period, between 1980 and 2020, in ENRs H1, H6, and H7. The results of his analysis, which were consistent with the evidence presented by Frydenborg, confirm that there currently are no exceedances of the numeric nutrient criteria for chlorophyll-a, total nitrogen, and total phosphorus in ENRs H1, H6, and H7. Weaver's long-term water quality analysis also showed that, for the period between approximately 1970—before the CCS commenced operation— and 2020, salinity levels in ENRs H1, H6, and H7 fluctuated over a range from approximately 25 PSU to 40 PSU, but that there were, and are, no upward trends in salinity levels in these areas of Biscayne Bay. This evidence further supports the conclusion that the CCS is not contributing significant amounts of water, via surface water or ground water seepage or flow, in these areas of the bay. Additionally, porewater samples taken over a ten-year period at transects proximate to the CCS show lower nutrient levels than at areas distal from potential influence of the CCS. This constitutes further evidence that the CCS is not a significant source of nutrient input into Biscayne Bay. Collectively, this competent, substantial, and persuasive evidence demonstrates that ENRs H1, H6, and H7 are meeting—and, over a substantial period of time, have met—the numeric nutrient criteria established for these parts of the bay. Weaver also testified, persuasively, that there is no evidence of any imbalance of flora or fauna related to nutrient concentrations in ENRs H1, H6, and H7. Rather, over time, the water quality in the areas of Biscayne Bay proximate to the CCS has improved. This is borne out by the competent, substantial, and persuasive evidence, discussed in detail below, showing that the marine ecosystem in the areas of Biscayne Bay proximate to the CCS is in a relatively healthy, high-functioning condition, particularly compared to other areas in the bay. Additionally, Weaver and Frydenborg both explained that the estuary-specific numeric nutrient criteria adopted in rule 62-302.532(1) for Biscayne Bay, including ENRs H1, H6, and H7, are more stringent than the narrative nutrient criteria for those ENRs. The numeric nutrient criteria for Biscayne Bay were developed using a "no observed effect" standard, rather than an imbalance threshold, so that the numeric criteria will be exceeded before an imbalance in natural populations of aquatic flora or fauna occurs. Thus, compliance with the numeric nutrient criteria for the ENR means that the narrative nutrient criteria for the ENR are met. In sum, the competent, substantial, and persuasive evidence establishes that the continued operation of the CCS pursuant to the Renewal Permit will comply with the applicable estuary-specific numeric nutrient criteria, and, therefore, will comply with the applicable narrative nutrient criteria. Discharge from the CCS does not Degrade Surface Water Quality in Biscayne Bay As noted above, Biscayne Bay is designated as a Class III marine water body, pursuant to rule 62-302.400(1), which means that the specific water quality standards applicable to the water body are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. Florida's anti-degradation policy, codified at rule 62-302.300, states, in pertinent part, that pollution that causes or contributes to new violations of water quality standards or to the continuation of existing violation is harmful to the waters of this State and will not be allowed. Fla. Admin. Code R. 62-302.300(15). The policy further states if DEP finds that a new or existing discharge will reduce the quality of the receiving water below the classification established for that water body—here, the Class III designation—or violate any DEP rule or standard, then DEP shall refuse to permit the discharge. Fla. Admin. Code R. 62-302.300(16). Rule 62-302.300(18) further provides that, with limited exception,28 an applicant for the renewal of an existing permit for which no expansion of the discharge is proposed is not required to show that any degradation from the discharge is necessary or desirable under federal standards and under circumstances which are clearly in the public interest. Fla. Admin. Code R. 62-302.300(18)(a). 28 Under rule 62-302.300(18)(b), if an applicant for the renewal of an existing permit has caused water quality degradation beyond that allowed in the permit, then the applicant must show that the lowering of water quality is necessary or desirable under federal standards and under circumstances that are clearly in the public interest. As discussed below, the competent substantial evidence does not establish that any discharge from the CCS into surface waters has resulted in the degradation of water quality in Biscayne Bay or other surface waters. The anti-degradation permitting requirements, which implement the anti-degradation policy set forth in rule 62-302.300, are codified at rule 62-4.242. This rule authorizes the issuance of permits when consistent with the anti-degradation policy set forth in rule 62-302.300, and, if applicable, rule 62-302.700, regarding OFWs. Fla. Admin. Code R. 62-4.242(1)(a). Rule 62-4.242(1)(b), which—importantly—applies only when a proposed discharge would result in water quality degradation, provides that, in determining whether a proposed discharge which results in water quality degradation is necessary or desirable under federal standards and under circumstances which are clearly in the public interest, DEP will consider and balance four factors: whether the proposed project is beneficial to the public health, safety or welfare, taking into account the policies in rule 62-302.300 and, if applicable, rule 62-302.700; whether the proposed discharge will adversely affect the conservation of fish and wildlife, including threatened or endangered species or their habitats; whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity; and whether the proposed discharge is consistent with any applicable adopted and DEP-approved surface water improvement and management ("SWIM") plan. Additionally, the open surface waters of Biscayne Bay adjacent to the CCS are designated an OFW, pursuant to rule 62-302.700. This designation prohibits discharges which degrade water quality, except as allowed under rule 62-4.242(2), below the ambient water quality that existed in the water body as of the date of its designation as an OFW. Biscayne Bay was designated an OFW in 1979. Rule 62-4.242(2) prohibits DEP from issuing a permit for a proposed activity or discharge within an OFW, or which significantly degrades, either alone or in combination with activities or discharges, any OFW, unless the applicant affirmatively demonstrates that the proposed activity or discharge is clearly in the public interest. Here, the competent, substantial, and persuasive evidence establishes that, to the extent there may be some indirect discharge or seepage from the CCS, via ground water, into Biscayne Bay, that discharge or seepage does not degrade, and has not degraded, the quality of the surface waters of the Bay. First, as discussed above, the applicable numeric nutrient criteria for Biscayne Bay, including ENRs H1, H6, and H7, are intended to maintain nutrient levels at concentrations necessary to maintain healthy conditions in the ENR. Thus, compliance with the applicable numeric nutrient criteria constitutes compliance with the OFW anti-degradation standard. As discussed above, ENRs H1, H6, and H7 all are in compliance with the applicable estuary-specific numeric nutrient criteria. Therefore, the evidence does not show that there has been any degradation of water quality in these ENRs. Further, the competent substantial evidence shows that, to the extent there may be any discharge of nutrients from the CCS into Biscayne Bay, the nutrient levels in such discharge do not vary from, or exceed, the natural variability of the levels for those nutrients established in the numeric nutrient criteria for ENRs H1, H6, and H7. As discussed above, water quality monitoring over a recent multi-year period (2013 to 2020) establishes that there have not been any exceedances of the numeric nutrient criteria for total phosphorus, total nitrogen, or chlorophyll-a in these areas of the bay, which are closest to the CCS. Additionally, to establish that the water quality in ENRs H1, H6, and H7 has not been degraded by nutrient discharges since 1979, when Biscayne Bay was designated an OFW, Frydenborg presented the results of water quality monitoring conducted between approximately 1970 and 2020, for total phosphorus, total nitrogen, and chlorophyll-a in these ENRs. The water quality monitoring results for total phosphorus for ENR H1 shows that in 1985 and 1988, the level of total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. However, more recent water quality monitoring shows that since approximately 1993, total phosphorus levels in ENR H1 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR, and, in fact, have declined and remained well below the numeric nutrient criterion for total phosphorus for that ENR through 2020. Water quality monitoring for total phosphorus in ENR H6 shows that in 1971, before the CCS commenced operation, total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. More recent water quality monitoring shows that since approximately 1993, total phosphorus levels in ENR H6 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR, and have declined and remain well below the numeric nutrient criterion for total phosphorus for that ENR. Water quality monitoring for total phosphorus in ENR H7 shows that in 1970 and 1971, and in 1976 through 1979, total phosphorus exceeded the level that has since been established as the numeric nutrient criterion for total phosphorus. However, starting in 1980, water quality monitoring shows that, with the exception of total phosphorus levels in 1985, 1987, and 1988, total phosphorus has not exceeded the level that has been established as the numeric nutrient criterion for total phosphorus for that ENR. Since 1990, the total phosphorus levels in ENR H7 have declined and remain well below the numeric nutrient criterion for total phosphorus for that ENR. The water quality monitoring results for total nitrogen for ENR H1 shows that in 1970, 1979, and 1981 through 1984, total nitrogen exceeded the level that has since been established as the numeric nutrient criterion for total nitrogen. However, more recent water quality monitoring shows that between 1993 and 2020, total nitrogen levels in ENR H1 have not exceeded the level that constitutes the numeric nutrient criterion for that ENR. Water quality monitoring for total nitrogen in ENR H6 for the period between 1993 and 2020 shows that the total nitrogen level that has been established as the numeric nutrient criterion has been exceeded twice, in 2008 and 2018. The water quality monitoring results otherwise generally show that since 2009, the total nitrogen level in ENR H6 has been well below that established as the numeric nutrient criterion for that ENR. Water quality monitoring for total nitrogen in ENR H7 for the period between 1970 and 2020 shows five exceedances—in 1970, 1974, 1975, 1981, and 2003—of the total nitrogen level that has been established as the numeric nutrient criterion for that ENR. Recent water quality monitoring results, for the period between 2009 and 2020, show that the total nitrogen level in ENR H7 has remained at or below the level that constitutes the numeric nutrient criterion for total nitrogen for that ENR. Water quality monitoring for chlorophyll-a for ENR H1 for the period between 1979 and 2020 shows that, with the exception of, 1982, 1991, and 2007, the level of chlorophyll-a that has been established as the numeric nutrient criterion for this ENR has not been exceeded. In fact, since 2008, the chlorophyll-a levels in ENR H1 have been well below the level established as the numeric nutrient criterion for this ENR. Water quality monitoring for chlorophyll-a for ENR H6 for the period between 1979 and 2020 show that the level of chlorophyll-a has remained at or below the level that has been established as the numeric nutrient criterion for this ENR. Water quality monitoring results for chlorophyll-a for ENR H7 for the period between 1979 and 2020 show that, with the exception of an exceedance in 2017, the level of chlorophyll-a has remained at or below the level that has been established as the numeric nutrient criterion for this ENR. Collectively, this evidence shows that, to the extent that there may be an indirect discharge from the CCS, via ground water seepage or flow, into Biscayne Bay, that discharge has not caused or contributed to the violation of the applicable estuary-specific numeric nutrient criteria established in rule 62-302.532(1)(h) for the ENRs adjacent to the CCS, and has not caused or contributed to the violation of any applicable Class-III surface water criteria or standards codified in rules 62-302.500 or 62-302.530. This evidence also establishes that, to the extent there is any discharge of water from the CCS into Biscayne Bay, the discharge has not caused or contributed to the degradation of Biscayne Bay below Class-III surface water quality standards, nor has it degraded surface water quality beyond that allowed in the Permit. Thus, FPL is not required, to demonstrate, under rule 62-4.242(1)(b), that such discharge is necessary or desirable under federal standards and under circumstances that are clearly in the public interest, pursuant to the factors set forth in that rule. However, even if a discharge from the CCS degraded water quality, that discharge would meet the "necessary and desirable under federal standards" and "clearly in the public interest" requirements of rule 62-4.242(1)(b). Specifically, the Turkey Point electrical generating facility is an essential source of electricity for south Florida and is the only baseload electrical generating facility that serves the critical load area of Miami-Dade County, Florida. Because the CCS dissipates heat from, and serves as a source of cooling water for, the operation of Units 3 and 4, these electrical generating units cannot be operated without the CCS. Closure of Units 3 and 4 would deprive FPL's customers in south Florida, and, particularly, in Miami-Dade County, of an essential source of electricity. Thus, operation of the Turkey Point facility, and, necessarily, the CCS, is important and beneficial to the public health, safety, and welfare. Additionally, as discussed below, the competent, substantial, and persuasive evidence establishes that the CCS does not, and, under the Renewal Permit, will not, adversely affect the conservation of fish and wildlife, including threatened and endangered species, or fishing or water- based recreational values or marine productivity in the vicinity of the CCS. Moreover, to the extent CCS water were to discharge into Biscayne Bay, and that discharge resulted in water quality degradation for these nutrients—neither of which has been demonstrated by the competent substantial evidence, discussed above—because the CCS was in operation before Biscayne Bay was designated an OFW, FPL would not be required to show that any such degradation was in the public interest unless it proposed to expand its discharge into surface waters. As discussed above, the competent substantial evidence establishes that there is no surface water discharge, and very little, if any, ground water discharge, from the CCS into Biscayne Bay, and no evidence was presented showing that FPL has proposed to expand its discharge from the CCS into surface waters. Finally, if FPL were required, pursuant to rule 62-4.242(2), to show that a discharge from the CCS into Biscayne Bay is clearly in the public interest, the competent substantial evidence in the record shows that this standard is met. As discussed above, the Turkey Point electrical generating facility is an essential source of electricity for south Florida, and Units 3 and 4 cannot be operated without the CCS as a source of cooling water and heat dissipation for the thermal discharge from these units. Thus, operation of the Turkey Point facility, and, necessarily, the CCS, is clearly in the public interest. Furthermore, under any circumstances, the competent substantial evidence, discussed above and also addressed below, does not establish that, to the extent there is any discharge of CCS water into Biscayne Bay, that discharge has caused or contributed to degradation of surface water quality in the bay. In sum, the competent, substantial, and persuasive evidence establishes that continued operation of the CCS pursuant to the Renewal Permit will not violate Florida's anti-degradation policies codified in rules 62-302.300 and 62-302.700, and will comply with the applicable anti- degradation permitting provisions in rule 62-4.242. The CCS has not Adversely Affected the Marine Ecosystem Immediately Offshore of the CCS The existence of a high-functioning marine ecosystem in Biscayne Bay immediately offshore of the CCS constitutes additional, strong evidence that the CCS is not a source of nutrient introduction into Biscayne Bay. FPL's expert marine ecologist, Dr. Jerald Ault, testified regarding the condition and function of the marine ecosystem immediately adjacent to the CCS. Based on his extensive onsite investigations, he opined that the condition and ecological function of this portion of the bay is as good, or better, than at any other location in the bay. Specifically, unlike many other areas in Biscayne Bay, the portion of the bay immediately contiguous to the CCS, including the remnant water intake and discharge canals at Turkey Point, has an undisturbed, healthy mangrove forest and healthy seagrass communities. That the marine ecosystem is functioning at a high level in the vicinity of Turkey Point is evidenced by the substantial abundance and diversity of bait fish species, such as mullet, anchovies, and sardines; the substantial abundance of pink shrimp, which serves as a food source for many marine fish species; the substantial abundance, diversity, and individual size of predator species of fish, such as tarpon, snapper, snook, and schoolmaster; and the presence of many predator species of bird, such as pelicans, cormorants, ospreys, and terns. The presence, abundance, diversity, and individual size of these organisms immediately offshore of Turkey Point evidences the existence of high-quality, high-functioning marine habitat in this area. Additionally, the presence of threatened and endangered species, such as the smalltooth sawfish, in the portion of Biscayne Bay proximate to the CCS is another indicator of high quality, relatively unstressed marine habitat in this area.29 The good condition and high-level function of the ecosystem in this part of Biscayne Bay shows that the CCS is not adversely affecting the ecology of this portion of the bay. To this point, if the CCS were a source of nutrient introduction to Biscayne Bay, or were otherwise harming the ecological functioning of this part of the bay, the marine ecosystem in the area closest to the CCS would exhibit stress and degradation—which it does not. Dr. Ault compared the good condition and high-level ecological function of the portion of Biscayne Bay proximate to the CCS with that of other parts of the bay which are suffering significant ecological decline as a result of development, urban and agricultural discharges to the bay, and extensive pressure from recreational overfishing. Historically, Biscayne Bay was a highly productive estuarine ecosystem. Before the network of drainage canals was constructed in south Florida, the bay received diffuse freshwater sheet flow from the Everglades, across the land. Construction and operation of the multiple drainage canals in the area has replaced the diffuse freshwater discharge from sheet flow with intermittent high-volume discharges from the canals, transforming portions of Biscayne Bay from an estuary to a partially-enclosed saltwater lagoon. This transformation has resulted in significant ecological degradation in parts of Biscayne Bay, particularly in those areas proximate to the drainage canals. By contrast, the CCS has not affected the delivery of freshwater to Biscayne Bay. Additionally, much of the shoreline habitat along the littoral edge of Biscayne Bay has been eliminated by seawalls and bulkheads associated with 29 Species that have become threatened or endangered often become endangered or threatened because they are particularly sensitive to changes to natural environmental conditions. urban development. Undisturbed, healthy mangrove shoreline habitat now only exists in the southern portion of Biscayne Bay, including at the shoreline adjacent to Turkey Point. To this point, Turkey Point has essentially functioned as a buffer from development of the shoreline along that portion of Biscayne Bay. Dr. Ault also opined that recreational overfishing and boating, directly related to the substantial population increase of Miami-Dade County, along with the impacts of commercial shrimping operations on seagrass habitat and quantities of shrimp available as a food source for fish species, have substantially contributed to the significant decline of fish populations in Biscayne Bay. Additionally, water quality has significantly declined in the portions of Biscayne Bay closest to the points where the drainage canals, which convey agricultural and urban runoff containing nitrogen, phosphorus, and other pollutants, discharge into the bay. These canals have been established as constituting the primary source of nutrient introduction into Biscayne Bay. The addition of nutrients to historically-oligotrophic Biscayne Bay has degraded the water quality and disrupted the ecology of many portions of the Bay, particularly areas to the north of Turkey Point, where these canals discharge into the bay. Dr. Ault developed, and presented the results of, a hydrodynamic model that he conducted, demonstrating the transport, in Biscayne Bay, of fresh water containing dissolved phosphorus and other nutrients discharged from the drainage canals north of Turkey Point into the bay. This model shows that the net movement of water particles containing dissolved nutrients is from north to south along the western shore of Biscayne Bay. The results of this model constitute strong evidence that, to the extent water quality monitoring in Biscayne Bay in the vicinity of Turkey Point were to show the presence of elevated levels of phosphorus or nitrogen, the discharge from the drainage canals north of Turkey Point, rather than the CCS, is the source of those nutrients. Dr. David Tomasko, director of the Sarasota Bay Estuary Program, testified regarding the condition of seagrass in Biscayne Bay, including the areas of the bay closest to the CCS. Seagrass meadows are a good indicator of ecosystem health in Florida estuarine ecosystems. The existence and extent of coverage of seagrass meadows in Biscayne Bay are highly variable, and there is not uniform coverage of seagrass at all locations at all times of the year. Based on Tomasko's investigation, in which he analyzed data gathered through FPL's extensive seagrass monitoring program over a ten- year period at 54 locations near the CCS,30 he opined that the CCS is not having an adverse impact on seagrasses in the vicinity of the CCS. Specifically, he noted that turtlegrass continues to grow at the monitoring sites. While the density of the seagrass is highly variable from site to site, and its distribution is patchy due to shallow bottom sediment depths, there is no underlying trend of seagrass decline or nutrient enrichment at the monitored sites near the CCS. The monitoring information also does not show any increase of macroalgae, or replacement of seagrass by macroalgae, in the immediate vicinity of the CCS. Additionally, unlike the seagrasses at a reference site at Barnes Sound, further south in the bay, the condition of the seagrasses in the vicinity of the CCS generally is good. To this point, Tomasko testified, credibly, that the coverage and condition of the seagrasses along transects in Card Sound proximate to the CCS remain similar to the conditions and coverage that he observed in Card 30 FPL's seagrass monitoring program features three pairs of transects located in Biscayne Bay near the CCS, and another reference site south of the CCS, in Barnes Sound, distal from any potential influence from the CCS. Sound in the 1990s. The evidence does not show that there has been any significant die-off of seagrass in the portion of Biscayne Bay immediately proximate to the CCS. Additionally, the nitrogen-to-phosphorus ratios measured in the leaves of the seagrasses sampled along the transects in the vicinity of the CCS are similar to, or greater than, the nitrogen-to-phosphorus ratios measured in seagrasses at the reference site in Barnes Sound.31 If the CCS were a localized phosphorus input source, the seagrasses sampled along the transects nearest to the CCS would have lower nitrogen-to-phosphorus ratios than those at the reference site. In formulating his opinion, Tomasko relied on findings in a 2019 DERM comprehensive report regarding the decline of seagrass and hardbottom habitat in Biscayne Bay. Based on many years of water quality and habitat monitoring, the DERM report concluded that the areas experiencing significant seagrass die-off are north of the CCS, in the 79th Street Basin, Julia Tuttle Basin, Venetian Basin, and Rickenbacker Basin; in central Biscayne Bay, where several drainage canals, including the Coral Gables Canal and the Snapper Creek Canal, discharge into the bay; and south of the CCS, in the Barnes Sound/Manatee Bay Basin, where canals discharge stormwater into the bay. As discussed above, the water entering the bay from these canals contains substantial amounts of nutrients, including phosphorus, which causes algal blooms that adversely affect seagrass. In sum, although there is substantial temporal and spatial variability in the density and coverage of seagrass at locations closest to the CCS, the evidence establishes that the seagrass in these areas are in relatively good condition compared to other locations in Biscayne Bay. If the CCS were a 31 In nitrogen-to-phosphorus ratios, nitrogen levels constitute the numerator and phosphorus levels constitute the denominator. Therefore, the greater the phosphorus level in the seagrass, the lower the nitrogen-to-phosphorus ratio will be. Conversely, the lower the level of phosphorus in the seagrass, the higher the nitrogen-to-phosphorus ratio will be. significant source of phosphorus input into Biscayne Bay, the seagrasses proximate to the CCS would likely be in significantly worse condition. Dr. William Nuttle testified on behalf of Petitioners regarding the flow of CCS-origin water, via ground water, into Biscayne Bay. Based on information contained in FPL's annual water quality monitoring reports for the Turkey Point facility, Nuttle analyzed water and salt budgets for the CCS and interaction of the CCS with the Biscayne Aquifer. Based on his analysis of the amounts of inflow of water into, and outflow of water from, the CCS, Nuttle opined that water leaves the CCS at a depth of around ten feet deep, flows easterly through ground water, and reaches the surface water of Biscayne Bay, and vice versa. As a basis for his opinion, he relied on what he characterized as "elevated" salinity levels in water in the karst depressions in the Bottom of Biscayne Bay at the lowest point of low tide, when the hydraulic gradient from the CCS toward the bay would be greatest. However, he did not compare the salinity levels in the karst depressions, which he characterized as elevated, with the average salinity levels in other areas of Biscayne Bay, or with the average salinity level of the bay as a whole. He also acknowledged that he does not know how much water from the CCS flows into Biscayne Bay, and that, consequently, he could not opine as to the effect that any flow from the CCS has on surface water quality in Biscayne Bay. Nuttle conceded that most of the time, the hydraulic gradient favors movement of water from Biscayne Bay to the CCS. He further acknowledged that in formulating his opinion that water leaves the CCS and enters Biscayne Bay through the karst depressions, he did not take into account the or absence of a significant pathway for flow between the CCS and the bay, or whether there was sufficient time for CCS water to seep or flow into Biscayne Bay. He did not use tritium as a tracer in his investigation of salinity in the karst depressions, so that he was unable to confirm that water in the depressions having what he characterized as "elevated" salinity levels was, in fact, CCS-origin water. Nuttle acknowledged that, to the extent the Turtle Point and Barge Basin canals may previously have been a source of nutrient input into Biscayne Bay, those canals have been filled, creating an impervious barrier to flow or seepage of water from the CCS to the bay. He did not present any evidence showing nutrient levels associated with these remnant canals after they were filled. Petitioners and Intervenor also presented the testimony of Dr. James Fourqurean, who opined that the CCS is adversely affecting the balance of flora and fauna in the region of Biscayne Bay immediately offshore of the CCS. Fourqurean testified regarding the effect of introducing nutrients to seagrass-dominated ecosystems in south Florida. Specifically, when phosphorus is added to sediment in which turtlegrass is growing, the turtlegrass becomes denser, up to the point at which continued addition of phosphorus then favors the growth of benthic macrophyte species, such as shoal grass and widgeon grass. These species outcompete the turtlegrass, thereby causing a decline in the density, coverage, and condition of the turtlegrass. With the continued addition of phosphorus to the system, seagrass communities eventually give way to communities dominated by seaweed and macroalgae, and, ultimately, single-celled microalgae. In 2018 and 2020, Fourqurean conducted investigations of seagrass communities in the offshore areas adjacent to the CCS. In 2018, he found that some turtlegrass beds in the area generally were dense, indicating what he referred to as a phosphorus "sweet spot" for turtlegrass growth. However, in other turtlegrass beds in the area, he found that macro- and microalgae had overgrown the beds, so that little turtlegrass was left. He ascribed the decline of turtlegrass coverage and density, and the preferred growth of algae to increased levels of phosphorus in the sediment. In 2020, he found that in some areas near the CCS, the turtlegrass beds were still dense, but single- celled microalgae were beginning to grow on the turtlegrass blades, indicating the continued addition of phosphorus to the water in that area. He compared the results of his investigations with historic seagrass coverage maps prepared by DERM from seagrass data collected between the 1980 and 1983, with seagrass coverage in 2020, for the immediate offshore areas of Biscayne Bay north of the CCS, adjacent to the CCS, and south of the CCS. This comparison shows that in 2020, for most, if not all, areas of Biscayne Bay immediately offshore, starting north of the CCS and heading south past the CCS, seagrass coverage has significantly declined. The areas north of the CCS, where urban drainage canals discharge into the bay, show the greatest percentage of increased macroalgal coverage and concomitant decline of seagrass coverage, and increased areas of bare sediment having no seagrass or algal coverage. The areas immediately east of the CCS show also show increased percentage of macroalgal coverage, decreased seagrass coverage, and increased areas having no coverage. The area south of the CCS, where the Sea-Dade Canal discharges into the bay, which historically supported seagrass, now shows mostly macroalgae and bare sediment, with little seagrass coverage. Fourqurean also presented testimony and supporting information showing that over the 20-year period between 1999 and 2020, at all areas of Biscayne Bay, starting north of the CCS and going south of the discharge points of the Sea-Dade Canal, with the exception of one area north of the CCS and immediately east of the Homestead Airforce Base, seagrass coverage has declined at annual rates of between 0.1 and 2.5 percent, with the greatest decreases in coverage occurring southeast and south of the CCS, in relative proximity to discharge points of the Sea-Dade Canal and the Card Sound Road Canal. He also presented evidence that some of the highest phosphorus levels in seagrasses have been observed immediately east of, and adjacent to, the CCS. Fourqurean also investigated, and presented evidence regarding, the concentration of tritium in the sediment porewater at some locations immediately east of the CCS which exhibited the highest phosphorus levels in seagrasses. His investigation showed the existence of a positive correlation between the highest concentrations of porewater tritium and the greatest amount of phosphorus in seagrasses. His analysis did not take into account any background level of tritium. Based on this evidence, Fourqurean opined that the areas immediately adjacent to the CCS have experienced the greatest seagrass decline over the 20-year period, and he attributed that decline to phosphorus input from the CCS, through ground water seepage, into Biscayne Bay. For several reasons, the undersigned finds his testimony and opinions unpersuasive. First, although his opinion is based on the assumption that CCS- origin water carrying dissolved phosphorus is seeping into Biscayne Bay, he did not know either the quantity of such water, or the concentrations of phosphorus in such water, that he contended seep into the Bay. Furthermore, in developing his opinion, Fourqurean did not take into account the other significant sources of phosphorus input to Biscayne Bay, including urban and agricultural runoff that enters the bay through discharges from canals located to the north and south of the CCS. He acknowledged that his opinion that the CCS was the source of the high phosphorus levels that he observed in seagrasses near the CCS was predicated on the assumption that the CCS was the source of all of the phosphorus that he observed in the seagrasses. Fourqurean's failure to consider other significant sources of phosphorus in Biscayne Bay while attributing phosphorus levels in seagrass solely to CCS- origin water renders his opinion unpersuasive. Fourqurean also acknowledged that he did not consider hydrodynamic modeling showing that water containing dissolved phosphorus discharged from canals north of the CCS flows south toward the CCS. He also did not take into account geochemical processes, including adsorption, which would attenuate phosphorus levels in CCS-origin water in ground water flowing through a limestone aquifer, which would reduce the amount of phosphorus that may seep into surface water. Additionally, Fourqurean did not take into account natural background tritium levels near the CCS when he developed his opinion that, based on tritium levels in porewater he measured at some locations east of the CCS, where he also observed high phosphorus levels in seagrasses, the phosphorus levels in those seagrasses came from CCS-origin water seeping into Biscayne Bay. Notably, the tritium levels observed in the porewater at the locations that Fourqurean sampled averaged approximately 4.6 pCi/L— far below the 6,000 pCi/L average tritium concentration of CCS water. These tritium levels can entirely be explained by atmospheric deposition into surface waters in the vicinity of the CCS.32 Fourqurean's analysis of porewater in locations where he also calculated high levels of phosphorus in seagrass showed a positive correlation between the concentration of tritium and higher levels of phosphorus in seagrass; however, he acknowledged that this correlation did not demonstrate a causal relationship between the presence of CCS-origin porewater in sediment and the higher levels of phosphorus in seagrasses at the locations he sampled. Stated succinctly, Fourqurean conceded that the 32 Dr. Kip Solomon, FPL's expert on tritium and its transport in the environment, credibly opined that, due to atmospheric deposition, background levels of tritium in surface waters in the area of Biscayne Bay proximate to the CCS consistently range between 11 and 20 pCi/L, and porewater levels of tritium in this area have an average concentration of approximately 9.3 pCi/L. presence of phosphorus-enriched seagrasses near the CCS did not establish a cause-and-effect relationship between such phosphorus enrichment and seepage of water from the CCS into the bay. Fourqurean included, in his expert report, a graphic depicting areas near the CCS where there was seagrass die-off due to high levels of phosphorus. He acknowledged that when he sampled tritium levels in the porewater at these locations in 2020, the tritium levels at these specific locations were some of the lowest he detected in his porewater sampling investigation, thus indicating that very little, if any, CCS-origin water was the source of the high phosphorus levels in seagrass at these locations. He acknowledged that this evidence did not support his hypothesis that excessive nutrients seeping from the CCS via groundwater caused seagrass die-off at these locations. He also acknowledged that, at specific locations in Biscayne Bay where he contended there was significant seagrass decline and die-off from historic levels that were mapped by DERM in the early 1980s, many factors other than phosphorus input from CCS-origin water seeping into the bay— including guano from roosting birds and numerous other potential sources of phosphorus—could be the cause of such seagrass decline and die-off. He also acknowledged that the areas of Biscayne Bay near the CCS are not the only areas of the bay in which there has been extensive seagrass decline and die- off over the nearly 40-year period between DERM's seagrass mapping and his investigation of the levels and locations of that decline. Fourqurean performed a regression analysis of data on seagrass percent coverage in delineated areas near the CCS in order to determine whether the seagrass decline in those areas was statistically significant; however, he did not perform a similar analysis to determine whether other areas in Biscayne Bay also were experiencing statistically significant levels of decline. He acknowledged that, for the areas of the bay closest to the CCS for which he did perform a regression analysis, the areas showing the greatest decline were those south of the CCS, near the location where the Card Sound Canal discharges into the bay. Fourqurean acknowledged that some of the areas east of the CCS which had the greatest levels of phosphorus in seagrasses are proximate to islands that provide bird roosting habitat, thus providing a rich source of phosphorus input to the surface water in the area. He also acknowledged that in the areas closest to the CCS, the levels of phosphorus are much lower than the areas closest to the bird roosting habitat. Fourqurean also acknowledged that in the area where the karst depressions that Petitioners and Intervenor have characterized as "caves" are located, near the southeastern end of the CCS, lower levels of phosphorus were detected in the seagrasses than at other locations where Fourqurean analyzed seagrass phosphorus levels. This indicates that these depressions do not constitute a point of phosphorus input into the bay. Fourqurean did not take water or porewater samples in the karst depressions to analyze for tritium levels in the depressions. It is noted that FPL's expert hydrogeologist, Stewart, performed an analysis of tritium levels in water samples taken in the depressions, and concluded that the tritium levels of water sampled in the depressions are similar to those in water samples taken in other open water locations in Biscayne Bay relatively close to the depressions. This indicates that these depressions do not constitute a connection between the CCS and Biscayne Bay. Fourqurean concurred with Tomasko that seagrass communities in Biscayne Bay are highly variable, and that even under natural conditions, seagrass location and coverage changes over time. He also acknowledged that the most accurate way to determine whether there is a trend with respect to seagrass density at a specific location is to sample that specific location over time in order to determine whether there is a change in density. In formulating his opinions, he did not perform such an investigation, nor did he rely on FPL's extensive seagrass transect data, which shows no adverse trend in seagrass over a ten-year period. He also did not review the 2019 DERM report, which, in part, concluded that the seagrass in areas near Turkey Point are in relatively good condition compared to the seagrasses in areas of the bay north and south of the CCS. In sum, the competent, substantial, and persuasive evidence demonstrates that the continued operation of the CCS will not result in the input of nutrients into Biscayne Bay. Accordingly, the competent, substantial, and persuasive evidence shows that the continued operation of the CCS pursuant to the Renewal Permit will not violate applicable surface water quality criteria and standards in rules 62-302.500, 62-302.530, and 62-302.532, or the anti- degradation policy and permitting standard established in rules 62-302.300, 62-302.700, and 62-4.242, with respect to Biscayne Bay. The Evidence Does Not Show that the CCS Causes Violations of Surface Water Quality Standards Applicable to Other Offsite Surface Waters As previously discussed, there is no direct surface water connection between the CCS and offsite surface waters, including the L-31E Canal, S-20 Discharge Canal, Sea-Dade Canal, or other offsite canals in the vicinity of the CCS. Additionally, as discussed above, the evidence does not show that there is significant, if any, seepage of CCS-origin water, via ground water seepage, into the L-31E Canal, S-20 Discharge Canal, Sea-Dade Canal, or other offsite canals or surface waters in the vicinity of the CCS, and the evidence does not show that the CCS is a source of nutrient input into these canals or other surface waters. Moreover, the RWS is operating to prevent CCS-origin water that seeps into ground water from moving westward past the boundary of the CCS. Thus, under any circumstances, operation of the RWS ensures that future operation of the CCS will not cause nutrient input into offsite canals or other offsite surface waters. Petitioners and Intervenor did not present any evidence showing that there are any water quality violations or ecological imbalances resulting from nutrient discharge or seepage from the CCS into offsite canals or other offsite surface waters. To the contrary, the competent substantial evidence established that continued operation of the CCS will not result in any exceedances of surface water quality standards or criteria applicable to the offsite canals or other surface waters, nor will it alter nutrient concentrations so as to cause an imbalance in natural populations of aquatic flora or fauna in these canals or in other offsite surface waters. Accordingly, the competent, substantial, and persuasive evidence shows that the continued operation of the CCS pursuant to the Renewal Permit will not violate applicable surface water quality criteria and standards in rules 62-302.500, 62-302.530, and 62-302.532, or the anti- degradation policy and permitting standard established in rules 62-302.300, 62-302.700, and 62-4.242, with respect to offsite canals and other surface waters. Effect of Continued Operation of CCS on Offsite Ground Water The Biscayne Aquifer horizontally extends into western Miami-Dade County. Historically, parts of the Biscayne Aquifer have been naturally saline. As a result of the construction of drainage canals, mining, land development, and ground water withdrawals, and other activities, significant saltwater intrusion has occurred in southeastern Miami-Dade County. As discussed above, by 1955, the location of the saltwater interface in the Model Land area in south Miami-Dade County had moved inland, from its original location near the coastline, to near Florida City, with its greatest landward extent at the Card Sound Road Canal, which, at the time, was an uncontrolled source of saltwater intrusion inland. A water control structure was installed in the Card Sound Road Canal in approximately 2010, and the evidence shows that, as of 2012, the inland extent of the saltwater interface along the Card Sound Road Canal had retracted slightly eastward. As discussed above, by the time the CCS became operational in 1973, the saltwater interface was located approximately three to three-and-a-half miles inland from the coast in the Model Land area. Since then, the saltwater interface has moved approximately one to one-and-a-half miles further inland in the Model Land area, to where it currently is located, approximately four- and-a-half miles from the coast. The NOV issued by DEP in April 2016 found that the CCS was the major contributing cause of the continued westward movement of the saltwater interface in the Model Land area, and that saltwater intrusion into the area west of the CCS was impairing the reasonable and beneficial use of adjacent Class G-II ground water in that area. To resolve this ground water standard violation, and to prevent future violations of surface water quality standards and criteria, FPL and DEP entered into the Consent Order. Allen Stodghill, a geologist with DEP who has worked on various ground and surface water-related issues for the Turkey Point facility since approximately 2008, and who was involved in drafting the Consent Order, testified regarding FPL's compliance with the Consent Order.33 As previously discussed, a key objective of the Consent Order was, and is, to cease saline water discharges from the CCS that impair the 33 To the extent FPL is implementing, or has implemented, remedial measures imposed in the Consent Order to address past violations of ground water standards and to prevent future violations of surface water quality standards, FPL's compliance with the Consent Order is germane to determining whether FPL has provided reasonable assurance that it is in compliance with applicable surface water and ground water quality standards, and, therefore, is entitled to issuance of the Renewal Permit. reasonable beneficial use of the adjacent Class G-II ground water to the west. FPL is in compliance with this objective. Although FPL did not achieve a 34 PSU salinity level in the CCS, it submitted a supplemental salinity management plan and also submitted, and is implementing, a thermal efficiency plan to lower the temperature of the cooling water being discharged into the CCS; this will reduce evaporation, which will help reduce the salinity concentration of water in the CCS. As discussed above, FPL also has implemented the RWS, which consists of a series of ten wells located immediately adjacent to the northern and western boundaries of the CCS. These wells collectively pump approximately 15 mgd, or approximately 5.4 billion gallons per year, of water from the Lower Flow Zone of the Biscayne Aquifer, from depths between 70 and 90 feet below land surface. As hypersaline water is withdrawn, the hypersaline plume decreases in vertical and horizontal extent, with the adjacent lower salinity ground water replacing the area formerly containing the hypersaline water that originated from the CCS. As of the final hearing, over 12.5 billion gallons of hypersaline ground water had been extracted from the Biscayne Aquifer by the RWS. The saline water withdrawn through the recovery wells is disposed, through deep underground injection control wells, into the Floridan Aquifer Boulder Zone, approximately 3,000 feet below land surface. The RWS became fully operational in May 2018. The 5.4 billion gallons per year of hypersaline water extracted by the RWS exceeds the approximately four billion gallons per year of water that discharges from the CCS into the ground water beneath the CCS, so that more hypersaline water is being withdrawn by the RWS than is being added to ground water by the CCS. The RWS wells function to withdraw hypersaline water by creating a potentiometric trough, or hydraulic gradient, in the surface of the aquifer. The wells draw water from the hypersaline plume west of the CCS, thereby withdrawing hypersaline water that had migrated west of the CCS before May 2018, when the RWS was implemented. The wells also draw hypersaline water from the CCS that has seeped into ground water to the east of the RWS, thereby creating a hydraulic barrier such that none of the CCS water that seeps into ground water is able to move westward past the RWS. The extraction of the hypersaline ground water beneath the CCS reduces the driving force that contributed to lateral movement away from the CCS, thereby halting the westward migration of hypersaline water from the CCS. Thus, since May 2018, the RWS has functioned—and continues to function— as a hydrologic barrier that has halted the westward movement of hypersaline water from the CCS. The Consent Order also requires that, by May 2028, the hypersaline plume resulting from historical migration of saline water from the CCS in ground water be retracted back to the L-31E Canal. Based on the results of the RWS operation over the past two-plus years, as determined by CSEM data and water quality monitoring, it is anticipated that the hypersaline plume will be retracted back to the L-31E Canal within the ten-year timeframe established in the Consent Order. Another key objective of the Consent Order was, and is, to prevent releases of ground water from the CCS which violate surface water quality standards in Biscayne Bay. This objective was met by filling the Turtle Point and Barge Basin canals. Thus, to the extent these canals intersected the Upper Flow Zone of the Biscayne Aquifer such that there have been a potential pathway for the migration of nutrients from the CCS, via ground water, into Biscayne Bay, that pathway no longer exists at these locations. Additionally, FPL has submitted and implemented a nutrient management plan, and conducted and completed an inspection of the peripheral impoundment structures. The Consent Order also required FPL to mitigate impacts related to historic operation of the CCS. To meet this objective, FPL completed an analysis, using a variable density three-dimensional ground water model developed under an agreement with DERM to allocate the relative contributions of other entities and factors to the inland movement of the saltwater interface. FPL also has entered into an agreement regarding the conveyance to SFWMD of FPL properties to facilitate the Comprehensive Everglades Restoration Plan, and has provided $1.5 million dollars to DEP to be used to finance saltwater intrusion mitigation projects in the Turkey Point region. FPL also conducted, and completed, the surface water quality sampling program to improve trend analysis in Biscayne Bay and Card Sound. FPL also is in compliance with the water quality monitoring requirements imposed in the Consent Order, including conducting the CSEM surveys and monitoring the salinity of ground water in and around the CCS. FPL submits RAASR reports on an annual basis, summarizing activities related to implementing the Consent Order, which contain CSEM survey and water quality monitoring data. As further discussed below, the results of this monitoring provide strong evidence that the RWS has halted the westward migration, via ground water movement, of CCS-origin water. The monitoring wells associated with the RWS consist of a cluster of three wells, one of which samples from the Upper Flow Zone, one of which samples from the Lower Flow Zone, and one that samples the deep aquifer. The results of the ground water monitoring associated with the RWS generally show that the wells are retracting the hypersaline plume. Some deep well monitoring results show an increase in the chloride levels as the RWS extracts the hypersaline water. This is because, as the RWS system draws water from the bottom of the aquifer, the heavier, more saline water sits, and tends to stay, at the bottom of the aquifer, while the less saline water is extracted by the recovery wells. The increase in chloride levels at the deep monitoring wells is expected because the RWS was recently implemented, and as the RWS operates over time, the chloride levels in the deep monitoring wells are anticipated to drop, as the denser, more saline water located at the bottom of the aquifer ultimately is extracted by the RWS. Based on the foregoing, it is determined that FPL is in compliance with the requirements of the Consent Order. Data collected by CSEM surveys and interpreted by FPL's expert hydrologist, Mark Stewart, confirms that the RWS is functioning effectively to halt the westward migration of the hypersaline plume and to retract the hypersaline plume back to the L-31E Canal, as required by the Consent Order. Using the CSEM data, Stewart conducted ground water modeling for chloride levels for each of 14 layers representing the Biscayne Aquifer at different depths, from land surface down to approximately 99 feet below land surface. Stewart's model, which has been peer-reviewed and accepted as accurate by regulatory agencies, including SFWMD, shows that the RWS is functioning to retract the hypersaline plume eastward to the L-31E Canal. Specifically, for the Upper Flow Zone, which constitutes Layer 7 of Stewart's model and ranges from 7.9 to 9.8 meters (approximately 25.9 to 33 feet) below land surface, the modeling results show significant retraction of the hypersaline plume between 2018, before the RWS became operational, and 2020, after approximately two years of RWS operation. Layer 10 of Stewart's model, which constitutes the Lower Flow Zone and ranges from 14.2 to 16.8 meters (approximately 46.5 to 55 feet) below land surface, also shows significant retraction of the hypersaline between 2018, before the RWS became operational, and 2020, after approximately two years of RWS operation. The accuracy of Stewart's modeling was confirmed by water quality monitoring data for chloride taken at numerous ground water quality monitoring wells west and north of the CCS. Most of these monitoring wells showed a statistically significant decrease in chloride concentration, while others showed decreases that were not statistically significant. Some wells showed no trend regarding chloride concentration, while a very small number of the wells had an apparent increase in chloride that was not statistically significant. Stewart noted that the hypersaline plume is not being retracted uniformly in each layer of the aquifer, and that in some of the lower layers of his model, which correspond to greater depths below land surface, the extent of retraction of the hypersaline plume has not been as great as that at shallower layers. However, the RWS is reducing the volume of the plume, which, in Stewart's opinion, shows that the RWS is working to retract the hypersaline plume back toward the L-31E Canal. Stewart further noted that, due to operation of the RWS, there is no additional water coming out of the CCS and flowing westward in the aquifer. Based on the conservative assumption that the original position of the saltwater interface originally was located near the current position of the CCS, and that it moved westward to the TPGW-7 monitoring well by 2018, Stewart estimated that the saltwater interface is moving inland at a rate of approximately 450 feet per year. It is noted that this rate is similar to FKAA's 500-feet-per-year rate estimated movement rate for the saltwater interface. Stewart opined, persuasively, that because the RWS has created a hydrologic barrier such that CCS water no longer is flowing into the aquifer west of the CCS boundary, and because water in the CCS is now less saline, due to freshening, than the ground water under the CCS, such that there no longer is a density drive for CCS water to move downward into the aquifer, it is unlikely that CCS water will move to FKAA's Biscayne Aquifer wellfield. E.J. Wexler, a hydrologist whose expertise is in ground water modeling, solute transport modeling, and contaminant hydrogeology, testified on behalf of Petitioners and Intervenor regarding FPL's remedial measures to withdraw the hypersaline plume east to the L-31E Canal by May 2028. Wexler developed a three-dimensional solute transport model in connection with ACI's proposed expansion of its aggregate mining operation. His study entailed an investigation of the hydrogeology of the area around the ACI site and considered the effects of the SFWMD canals, other lakes and discharge canals, municipal water supply wells, agricultural wells, and the CCS. He modeled the area between the Mowry Canal to the north, the C-111 Canal to the west, and the shoreline of Biscayne Bay to the east and southeast, to determine the location of the saltwater interface and the body of hypersaline water in the Biscayne Aquifer, and to predict the movement of both over time. As part of his modeling, Wexler performed an attribution analysis similar to that performed by FPL, pursuant to the Consent Order. Wexler's model confirmed that hypersaline water seeping from the CCS displaced ground water in the Model Land area, and, thus, acted as the main driver of inland movement of the saltwater interface in the Model Land area. Wexler's ran predictive modeling simulations for a ten-year period, between 2018 and 2027, taking into account the RWS and freshening of the CCS by the addition of 12 mgd of water from the Floridan Aquifer.34 The results of his modeling showed that in the shallower layers of the aquifer, the hypersaline plume will mostly have been retracted back to the western edge of the CCS by 2027. His model also shows that at a depth of approximately 65 feet below land surface, the 35 PSU isochlor remains west of the boundary of the CCS at the end of the ten-year model run, in 2027. 34 Wexler also testified that his model also showed that existing freshening of the addition of 12.2 mgd per day of Floridan Aquifer water to the CCS will not reduce the salinity of the CCS to approximately 34 PSU, as required by the Consent Order. However, the 34 PSU salinity level target for the CCS is not a rule standard and has not been incorporated into the Renewal Permit. Rather, it is a condition of the Consent Order, which is a final, separately enforceable administrative order that is not at issue in these proceedings. Wexler's modeling also shows that the position of the saltwater interface, which is at the approximately 10,000 mg/L, or 10 PSU isochlor line, shows slight eastward movement over the ten-year period simulated.35 Based on the results of his modeling, Wexler opined that the RWS will preferentially retract high salinity ground water from the west in the highly permeable layers of the Biscayne Aquifer, but will leave a persistent body of highly saline ground water in the deeper layers of the aquifer west of the L-31E Canal,36 despite the operation of the RWS. Based on Wexler's modeling simulations for the ten-year period from 2018 to 2027, taking into account the RWS, he opined that the RWS functions more as an interceptor system than a true recovery well system. Specifically, he opined that much of the saline water seeping from the CCS into ground water is intercepted by the RWS, but that the recovery wells comprising the RWS are spaced too far apart, so that when there are high water levels in the CCS, some ground water containing saline CCS-origin water will still seep westward of the CCS in the deep portion of the aquifer. Thus, Wexler opined, the RWS does not create an effective hydrologic barrier to prevent CCS-origin water from continuing to move west of the CCS in the deep aquifer and will not retract hypersaline water back toward the L-31E Canal in the deep aquifer.37 35 Importantly, the Renewal Permit does not require the saltwater interface—which has moved inland due to numerous activities, not just operation of the CCS—to be retracted back to L-31E Canal by May 2028; rather, it requires the hypersaline plume caused by hypersaline water seepage from the CCS to be retracted to the L-31E Canal by the end of that period. 36 This is consistent with Allen Stodghill's and Mark Stewart's testimony that the RWS will draw hypersaline water down into the deeper layers of the aquifer as it operates and that it will take some time for the RWS to withdraw all of that hypersaline water from the bottom of the aquifer. 37 Wexler also opined that FPL will not meet the requirement, in Condition VI.10 of the Renewal Permit, to retract the hypersaline plume back to the L-31E Canal by 2028. However, Condition VI.10 of the Renewal Permit requires FPL, at the end of the fifth year of operation of the RWS, to evaluate the effectiveness of the RWS in retracting the hypersaline plume to the L-31E Canal within ten years of RWS operation. If this evaluation shows that the RWS will not retract the hypersaline plume to the L-31E Canal by the end of the ten- year period, then FPL must provide an alternative plan for retracting the hypersaline plume Nonetheless, Wexler opined that the RWS would function to retract the saltwater interface slightly over the ten-year compliance period for retracting the hypersaline plume. Wexler's model used different aquifer transmissivity values than those used by Stewart, whose transmissivity values were obtained from United States Geological Survey data. Additionally, Wexler's ground water model—unlike the model prepared and run by Stewart—has neither been peer-reviewed nor reviewed or accepted as accurate by any government agencies. Wexler also opined that highly saline water carrying nutrients, that seeps from the CCS into ground water could flow eastward under Biscayne Bay via preferential pathways and discharged directly to Biscayne Bay. However, he did not investigate whether there are any points at which CCS- origin water seeping into ground water can discharge into Biscayne Bay. As previously discussed, the persuasive evidence, consisting of the testimony and supporting evidence presented by Stewart and Stodghill, shows that there is little, if any, hydrologic connection of the CCS to Biscayne Bay, and, therefore, little, if any, seepage of CCS-origin water into Biscayne Bay. As discussed above, the persuasive evidence does not establish that the karst depressions at the bottom of Biscayne Bay are connected to the Upper Flow Zone or any other preferential pathway in the Biscayne Aquifer, such that CCS-origin water has a pathway to flow or seep into Biscayne Bay. by the end of that period. This interim compliance evaluation provides a "safety check" to help ensure that the hypersaline plume is retracted, such that it no longer is a factor in the location of the saltwater interface. Kirk Martin testified on behalf of Petitioners and Intervenor regarding the projected effect of the hypersaline plume and the movement of the saltwater interface38 on FKAA's Biscayne Aquifer wellfield39 near Florida City, and FKAA's actions in exploring the development of another wellfield so that it can continue to fulfill its obligations to provide potable water to the Florida Keys.40 FKAA operates a wellfield that yields approximately 20 million gallons of water per day from the Biscayne Aquifer, which has been as a sole source aquifer by EPA. This designation means that this portion of the Biscayne Aquifer is the sole source of fresh ground water for southeast Florida. The portion of the Biscayne Aquifer below FKAA's wellfield from which it withdraws fresh water is designated by rule 62-520.410 as a Class G-II aquifer, which, as noted above, means that it is designated for potable water use and has a total dissolved solids concentration of less than 10,000 mg/L. As part of his work for FKAA, Martin analyzed several hydrological components, such as sea level rise, rainfall patterns, ground water levels, ground water pumpage, and water control management for the network of canals in the area, and compared each of these components to noted changes in salinity in monitoring wells. He determined that the most substantial contributor to movement of the saltwater interface in what he termed the "southern front"—which is 38 As discussed above, the saltwater interface is the intersection of Class G-II and G-III ground waters. Class G-III ground water has a total dissolved solids concentration of 10,000 mg/L or greater, and Class G-II ground water has a total dissolved solids concentration of less than 10,000 mg/L. Ten thousand mg/L is roughly equivalent to a 5,000 to 6,000 mg/L chloride concentration. 39 FKAA also has a co-located brackish water wellfield that yields approximately six million gallons of water per day from the Upper Floridan Aquifer. 40 It is important that FKAA monitor for saltwater intrusion because that is the primary threat to the portion of the Biscayne Aquifer from which FKAA withdraws potable water. located south and east of FKAA's wellfields—is manipulation of canal levels, particularly the level of the C-111 Canal, by SFWMD. He opined that operation of the CCS is the major contributor to movement of the saltwater interface within the Model Land area, west of the CCS, and that the movement of the saltwater interface inland is a threat to the portion of the Biscayne Aquifer from which FKAA obtains its source of potable water. The movement of the saltwater interface inland in the Model Land area has impaired the reasonable beneficial use of the adjacent Class G-II ground water, which consists of the Biscayne Aquifer in this location. Martin opined that because implementation of the RWS only withdraws the hypersaline plume, and does not remediate areas in the Model Land in which the ground water has become more saline but is not hypersaline, the implementation of the RWS does not provide reasonable assurance that the saltwater interface will not continue to move inland due to operation of the CCS, thereby violating Class G-II water quality standards and impairing the reasonable and beneficial use of adjacent ground water. However, because the saltwater interface already was located west of the CCS when it commenced operation in 1973, and has continued to move westward due to many other causes besides those solely attributable to the CCS, the Renewal Permit does not require the saltwater interface to be retracted; rather, it requires the hypersaline plume caused by hypersaline water seepage from the CCS to be retracted to the L-31E Canal by May 2028. Additionally, if, as Martin also opined, the hypersaline plume from the CCS is the primary driver of the westward movement of the saltwater interface, and given that westward movement already has been halted by the RWS and that, assuming successful operation of the RWS, the hypersaline plume will be retracted to the L-31E Canal by May 2028, then implementation of the RWS under the Consent Order will stop the westward movement of the saltwater interface, to the extent such movement is caused by the discharge of hypersaline water from the CCS into ground water. Additionally, as discussed above, the competent, substantial, and persuasive evidence establishes that the operation of the RWS already has halted the westward movement, beyond the boundary of the CCS, of water seeping from the CCS into ground water. Therefore, by definition, the continued operation of the CCS under the Renewal Permit will not result in additional CCS-origin water moving via ground water, westward into the Model Land area or other areas. Martin also opined that FPL's freshening of the CCS, as required by the Consent Order and authorized by the Certification for Turkey Point increases the hydrostatic head of water seeping from the CCS, and will exacerbate the movement, or increase the size, of the hypersaline plume. This opinion fails to take into account that the RWS is removing the water that seeps from the CCS into ground water. Thus, operation of the RWS prevents any water seeping from the CCS into ground water from moving west of the CCS. Accordingly, water seeping from the CCS will not affect the size of the hypersaline plume; to the contrary, the persuasive evidence shows that the RWS already is significantly retracting the hypersaline plume in the Upper Flow Zone and Lower Flow Zone. As discussed above, it is anticipated that as the RWS operates over time, the chloride levels in the deep monitoring wells will drop as the denser, more saline water sitting at the bottom of the aquifer ultimately is extracted. The persuasive evidence indicates that the hypersaline plume retraction conditions in the Renewal Permit will be met within the timeframe set forth in that condition. Martin also testified that current discharges from the CCS will impact the FKAA's use of the potable water, through reduction of the amount of fresh water available and reduction of the buffer between the saltwater interface and FKAA's wellfield. However, again, Martin's opinion fails to take into account that the operation of the RWS already has halted the migration of CCS-origin water west of the boundary of the CCS, so the current operation of the CCS is not affecting the aquifer offsite. To the extent that past discharges from the CCS have caused salinity levels to increase in the Class G-II aquifer west of the CCS and have impaired the reasonable and beneficial uses of that ground water, those past discharges are being retracted by the RWS back to the L-31E Canal, pursuant to the Consent Order. Additionally, the Renewal Permit, Condition VI.9, requires that the westward migration of the hypersaline plume must be halted by May 15, 2021, and Condition VI.10 requires that the hypersaline plume must be retracted back to the L-31E Canal by May 2028. Operation of the CCS in compliance with these conditions will ensure that FPL's future operation of the CCS pursuant to the Renewal Permit does not violate Class G-II ground water standards or impair the reasonable beneficial use of adjacent ground waters. Martin acknowledged that he does not know the quantities or rates of seepage of water from the CCS into ground water for years 2018, 2019, and 2020, and that he did not consider this information in opining that continued operation of the CCS under the Renewal Permit will result in further westward movement of the saltwater interface. He also acknowledged that he does not know the amount of hypersaline water being extracted by the RWS, which has been in operation since May 2018, and he did not take the operation of the RWS into consideration in formulating his opinion. For these reasons, Martin's opinion regarding the lack of effectiveness of the RWS in halting the westward migration of, and retracting, the hypersaline plume is not supported by the evidence and is unpersuasive. The competent substantial evidence establishes that, assuming the saltwater interface is moving westward at a rate of approximately 500 feet per year,41 it would take approximately ten years for the saltwater interface to move one mile westward. At this rate of movement, without any ongoing corrective actions pursuant to the Consent Order, Martin estimates that it would take approximately 40 years for the saltwater interface to reach FKAA's Biscayne Aquifer wellfield. This estimate is consistent with other experts' estimates of the amount of time it will take, if rate of movement of the saltwater interface remains similar to its current rate. Based on the foregoing, it is determined that the continued operation of the CCS under the Renewal Permit will not violate applicable ground water standards. Petitioners' and Intervenor's Standing FKAA's Standing JoLynn Reynolds, Director of Engineering for FKAA, testified regarding the FKAA's interest in challenging the Renewal Permit. As noted above, the FKAA was created by chapter 76-441, Laws of Florida. Pursuant to this law, FKAA supplies water to the Monroe County/Florida Keys area, and wastewater services for parts of Monroe County and the Florida Keys. To meet its legal obligations under this law, FKAA has developed, and operates, two potable water wellfields in Florida City. At its Biscayne Aquifer wellfield, FKAA has ten fresh water-producing wells that withdraw water from the Biscayne Aquifer. At its Floridan Aquifer wellfield, FKAA has four brackish water-producing wells that withdraw water from the Floridan Aquifer, and one deep injection well associated with the reverse osmosis plant. FKAA's water supply pipeline leads from Florida City to the Keys, and traverses a route from Ocean Reef to Key West. 41 Martin testified that monitoring well measurements show that the saltwater interface is moving as slowly as 280 feet per year, while other wells show it moving as fast as 480 feet per year. Martin testified that assuming a rate of 500 feet per year is reasonable for water supply planning purposes, given the uncertainty of measurement. Currently, FKAA produces approximately 18 mgd to meet the potable water demand of its customers. FKAA prepares a Water System Master Plan ("Master Plan") in order to plan its water demands, projected demands, water supply sources, and capital improvement projects over a 20-year planning horizon. However, the Master Plan is updated every two years in order to stay current. FKAA's current Master Plan covers the 2020 to 2040 planning period. FKAA's existing water production wells have a useful life of approximately 50 years. The wells, which were installed in the 1980s, will reach the end of their service life at the end of the 20-year planning horizon. Currently, FKAA does not anticipate having to upgrade or replace any of its water production wells during its current 20-year planning horizon. FKAA has a lime-softening water treatment plant that treats approximately 23.8 mgd of water withdrawn from the Biscayne Aquifer. In addition, FKAA operates a reverse osmosis brackish water treatment plant that treats Floridan Aquifer water and produces approximately six mgd of potable water. FKAA also operates two emergency reverse osmosis plants: one in Marathon, which produces approximately one mgd of potable water, and one in Stock Island, which produces approximately two mgd of potable water. The lime-softening plant, which is used to treat water withdrawn from the Biscayne Aquifer, cannot be used to treat water withdrawn from another aquifer. This plant must treat the water to the drinking water standards of 160 parts per million of sodium and 250 parts per million of chloride. The lime-softening plant is unable to be used to remove salt from the water produced by the wells; thus, the water that is treated by the lime- softening plant must meet drinking water standards for salinity, even before it is treated by the plant. The reverse osmosis plant has a salinity treatment threshold of 4,000 parts per million for chloride, so it cannot be used to treat hypersaline water.42 As part of its water use permit, FKAA is required to have a saltwater intrusion monitoring program. This monitoring program currently consists of 15 wells located east, southeast, and south of the Florida City wellfield site. These wells sample water from depths of 35 feet to 80 feet below land surface. Using USGS-developed isochlor lines, FKAA prepared a graphic showing the approximate location of the saltwater interface for the years 2008, 2011, and 2016. This graphic shows that the saltwater interface is closest to—i.e., approximately 2.99 miles east of—the FKAA's Florida City wellfield at the Card Sound Road Canal. Notably, the saltwater interface at this location did not significantly move in the period between 2008 and 2016. As previously discussed, that canal was open to Biscayne Bay until approximately 2010, and provided a direct conduit for saltwater intrusion inland. The graphic shows that, as of 2016, the next closest location of the saltwater interface is in the Model Land area, approximately 4.48 miles east of the Florida City wellfield. Due to the continued inland movement of the saltwater interface inland over time, in 2017, FKAA installed six new saltwater interface monitoring wells, at an estimated cost of approximately $400,000, to enable continued monitoring of the movement of the saltwater interface.43 One of the wells installed in 2017, FKS-14, showed sharply rising chloride levels at depths from 55 feet to 80 feet below land surface over the period between approximately February 2018 and July 2018. This well also 42 This plant treats water withdrawn from the Floridan Aquifer. There are no allegations in this case that the hypersaline plume has affected, or may affect, any part of the Floridan Aquifer. 43 Notably, three of FKAA's monitoring wells, FKS-1, FKS-2, and FKS-8, which are located east of the saltwater interface, are located immediately proximate to, respectively, the C-111, C-110, and Card Sound Road canals. showed chloride levels beginning to rise at the 40 to 45 feet below land surface level starting in approximately April 2018.44 FKAA's Biscayne Aquifer water production wells withdraw water from between 20 and 60 feet below land surface, so increasing chloride levels have given rise to FKAA's concern regarding the movement of the saltwater interface inland. Based on information showing that the hypersaline plume is pushing the saltwater interface westward toward its Florida City wellfield, FKAA has challenged the Renewal Permit. Currently, FKAA's Biscayne Aquifer wellfield is not contaminated with saline or hypersaline water. However, based on the estimated rate of movement of the saltwater interface of approximately 500 feet per year, the saltwater interface—if its movement is unchecked—is estimated to reach FKAA's Biscayne Aquifer wellfield between 34 and 43 years. As Reynolds explained, FKAA intends to continue producing water from the Biscayne Aquifer because that water already meets drinking water standards for sodium and chlorides, so requires less extensive and expensive treatment than water produced by Floridan Aquifer wells, which would require more costly treatment by reverse osmosis to meet drinking water standards. Thus, in response to its concern that chloride levels may rise in its production wells, FKAA is exploring other locations to which it could relocate its Biscayne Aquifer wellfield if chloride levels continue to rise at accelerated rates in its monitoring wells. To this end, FKAA has Kirk Martin, FPL's water supply planning consultant, to identify available properties north/northwest of its Florida City wellfield that may be suitable for relocation of its water production wellfield. 44 FKS-14 is located southeast of, and in close proximity to, the ACI quarry. FKAA roughly estimates that it will cost approximately $4 million to locate and purchase land suitable for development as a wellfield, and it also estimates that installing additional pipeline to transmit water from a new wellfield to the Florida City lime-softening treatment plant would cost between $1.5 and 2 million dollars per mile. FKAA also would have to install a new pump station, at additional cost, to pump water from a new wellfield to the lime-softening treatment plant. Due to the monitoring results for well FKS-14, which show chloride levels rising sharply once they become elevated, FKAA currently is planning—and incurring cost—in anticipation that it may be required to relocate its wellfield. Reynolds estimated that the process of planning, purchasing, designing, constructing, and commencing operation of a wellfield would take many years. She explained that, given its legal obligation under its special act to provide potable water to the Florida Keys, FKAA does not have the luxury to adopt a wait-and-see approach with respect to preparing for impacts of movement of the saltwater interface on the Biscayne Aquifer. FKAA's water use permit issued by SFWMD grants it the legal right to continue to withdraw from the Biscayne Aquifer up to March 13, 2028. FKFGA's Standing Stephen Friedman, Commodore of the FKFGA, testified regarding that entity's interest in the outcome of these proceedings. The FKFGA, which was established in 1956, is a conservation organization having slightly over 100 members, who are professional fishing guides in and around south Florida. Among other things, the FKFGA helps to educate its members and the public regarding best practices on the water in order to preserve and protect fishery resources and habitat. Its members also assist in sampling activity and in conducting censuses related to natural resources in south Florida. Its members engage in fishing activities all over south Florida, including in Biscayne Bay and the Florida Keys. Friedman testified that he and other members fish in the portion of Biscayne Bay east of the CCS, in the vicinity of the Arsenicker Keys. He testified that he has observed changes in the environmental conditions in this area. According to Friedman, when he started fishing in that area, it had good fishing habitat; however, since 2000, he has observed sparse and dead seagrass, and the quality of the fishing has declined. He testified that bonefish and permit, which are the "target" species for his clientele, are not as plentiful. Consequently, he does not fish there as often as he did in the past. He testified that other members of the FKFGA have related similar experiences to him. Friedman stated that the FKFGA and its members' concerns are that [W]e have a nuclear power plant sitting in between two national parks, and where we're having some environmental difficulties in the Everglades, and we're seeing environmental difficulties in Biscayne Bay National Park. . . . And when we see habitat degrade, and know that it could be prevented, that's where we try to step in and gain as much knowledge as we can, and educate ourselves to find out how we can change something and bring back what used to be great habitat in certain areas. . . . Especially if it's something that we've found that science corroborates our observations. Due to these concerns, as expressed by Friedman, the FKFGA has challenged the Renewal Permit. Benjamin Blanco, a member of the FKFGA, testified regarding his own experiences, as a professional fishing guide and in his personal capacity as a recreational fisherman, regarding fishing in Biscayne Bay and, specifically, in the area offshore of the Turkey Point facility. According to Blanco, he fishes the area offshore of Turkey Point approximately 100 days per year. He testified that, in the past, there were plentiful turtlegrass beds in the area, but that now the bottom of the bay in the area is mostly sand, with no grass. The decline of the abundance and condition of turtlegrass beds in this area has negatively affected the abundance and movement of the game fish species in these areas. As a result, this area no longer supports extensive fishing for these species, and Blanco and other professional fishing guides have had to change their fishing practices. Additionally, as a result of the decline of fish habitat in this area, Blanco no longer engages in personal recreational fishing in this area. He acknowledged that he is not a scientist and has not engaged in any scientific studies on fish populations in Biscayne Bay. He also acknowledged that there are many other factors that are adversely affecting the environment in south Florida, including in Biscayne Bay. Specifically, he acknowledged that the decrease of fresh water flow into Biscayne Bay, the destruction of shoreline habitat, the decline of water quality due to nutrient discharges, and the increase in recreational fishing, all have harmed fish populations in the bay. Monroe County's Standing Michael Forster, County Commissioner for Monroe County District 5, testified on behalf of Intervenor Monroe County, Florida, regarding the County's interest in these proceedings. The County, and the municipalities in the County, receive their potable water supply from FKAA. The County has entered into an interlocal agreement with FKAA, establishing the respective roles of FKAA and the County with respect to FKAA's provision of potable water to the County. Additionally, the County has adopted, in the Monroe County, Florida, Comprehensive Plan (hereafter, "County Plan"), a goal, objectives, and policies recognizing and supporting the role of FKAA in providing the potable water supply to meet the needs of present and future County residents. Under the County Plan, in order for a certificate of occupancy or its functional equivalent to be issued for land development activity for which such approval is required, there must be an adequate potable water supply available to support the development. If a reliable potable water supply is not available to the County, no certificates of occupancy can be issued, thereby severely affecting the County, its economy, and its residents. Forster also testified that the County has an interest in protecting Biscayne Bay as a natural resource. Under the County Plan, the County has planning obligations with respect to, and allocates resources for, the monitoring of environmental and natural resources within its boundaries. In particular, the County is obligated to work cooperatively with various federal and state agencies, including the Florida Keys National Marine Sanctuary ("FKNMS"), which is located in Monroe County, to protect water quality within the FKNMS. Forster testified, credibly, that the County's economy is water-based, and that recreational and commercial fisheries are a major part of that economy. To that end, the County expends resources to monitor the health of fisheries in the County. Ecotourism also constitutes a large part of the County's economic base. Specifically, through the taxes the County collects as a result of tourism, including ecotourism, the County is able to provide a range of local government services to its residents that it otherwise would not be able to provide if it did not have such revenue. The County requested to intervene in these proceedings due to its concerns that the continued operation of the CCS would adversely affect the potable ground water in FKAA's wellfield from which the County obtains its potable water. The County also requested to intervene due to its concerns regarding protecting and maintaining the quality of surface waters in Biscayne Bay, which constitutes an important resource that supports the County's ecotourism.
Conclusions For Petitioners and Intervenor: Andrew J. Baumann, Esquire Amy Taylor Petrick, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Frederick L. Aschauer, Esquire Lewis, Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, Florida 32301 For Respondent, Department of Environmental Protection: Marianna Sarkisyan, Esquire Matthew J. Knoll, Esquire Office of the General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 For Respondent, Florida Power & Light Company: Thomas Neal McAliley, Esquire Yolanda P. Strader, Esquire Steven M. Blickensderfer, Esquire Carlton Fields, P.A. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Peter Cocotos, Esquire Florida Power & Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Permit No. FL0001562-012-IW1N to Florida Power & Light Company. DONE AND ENTERED this 18th day of February, 2022, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2022. COPIES FURNISHED: Peter Cocotos, Esquire Florida Power & Light Company 215 South Monroe Street, Suite 810 Tallahassee, Florida 32301 Brian Stamp Florida Power & Light Company 9760 Southwest 344 Street Florida City, Florida 33035 Frederick L. Aschauer, Esquire Lewis, Longman & Walker, P.A. 315 South Calhoun Street, Suite 830 Tallahassee, Florida 32301 Marianna Sarkisyan, Esquire Matthew J. Knoll, Esquire Office of the General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas Neal McAliley, Esquire Yolanda P. Strader, Esquire Steven M. Blickensderfer, Esquire Carlton Fields, P.A. 100 Southeast Second Street, Suite 4200 Miami, Florida 33131 Joseph Ianno, Esquire Florida Power & Light Company 700 Universe Boulevard Juno Beach, Florida 33408-2657 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Andrew J. Baumann, Esquire Amy Taylor Petrick, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 Christopher J. Wahl, Esquire Abbie Schwaderer Raurell, Esquire Miami-Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Shawn Hamilton, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue There are two sets of issues to be considered in this matter which require separate determination. The issues in D.O.A.H. Case No. 83-2133 pertain to a notice of violation and orders for corrective action filed against Michael H. Hatfield related to the alleged construction of a causeway from a mainland shoreline to an island owned by Hatfield. In particular, that action by the Department alleges certain violations of environmental law and demands restoration of the area in which the causeway was constructed. The companion case, D.O.A.H. Case No. 84-0465, concerns Hatfield's request to construct a causeway from the mainland to the island in a location apart from the existing causeway. The Department has denied Hatfield's request for necessary permission to install that causeway.
Findings Of Fact Michael H. Hatfield is the owner of property in Marion County, Florida. That property is located on Lake Nicatoon, a 307 acre nonmeandered water body. Lake Nicatoon is a Class III water body as defined in Chapter 17-3, Florida Administrative Code. To gain access to the island from the mainland, Hatfield sought permission from the Department of Environmental Regulation to construct a causeway from the mainland to the island. The area between the mainland and the island is subject to water level fluctuations in that at times it is essentially dry and other times is under the waters of Lake Nicatoon. His application for environmental permits was filed on May 13, 1980. A copy of that application may be found as Department's Exhibit No. 4, admitted into evidence. His proposed project calls for the placement of approximately 525 cubic yards of fill in wetlands and littoral zones adjacent to the mainland and island. Per the application, the causeway would be 7 yards wide at the bottom and a length of approximately 73 yards and is to be constituted of sand and crushed concrete block. In particular, Hatfield wishes access to allow construction of a residence on the island and to gain entrance to the residence after construction. The Department of Environmental Regulation reviewed the application and on May 27, 1980, made a request to Hatfield to provide additional information related to his proposal. A copy of that request for additional information may be found as part of Department Environmental Regulation's Exhibit No. 3, admitted into evidence. Among the items requested was information from local government related to that entity's approval of the project in accordance with Section 253.124, Florida Statutes. This request was made based upon the perception by the Department of Environmental Regulation that Lake Nicatoon was found in the Florida Lakes Gazateer of Meandered Water bodies. The Department continued to operate on this erroneous assumption throughout the permit review process. Unknown to the Department, the lake was a nonmeandered lake which was discovered by Hatfield and verified on September 8, 1980, through an affidavit of the Division Director of State Lands for the State of Florida. A copy of that affidavit may be found as Hatfield's Exhibit No. 2, admitted into evidence. In effect, although the Department had made a good faith request for information pursuant to chapter 253.124, Florida Statutes, that information was not necessary because Lake Nicatoon is nonmeandered and not subject to Chapter 253, Florida Statutes, jurisdiction. Additionally, the requested hydrographic information pertaining to Chapter 253, Florida Statutes, was not needed. Among the other items requested in the way of additional information was item No. 6, pertaining to the placement of fill. That request was not complied with. Requested information related to a plan view was not complied with. Requested information in the category of "notes and drawings" was not complied with. Requested information pertaining to plans for complying with state water quality standards for Class III waters as related in Section 17- 3.121, Florida Administrative Code, was not complied with. These materials were relevant to the permit review process and the request for the information was never modified nor abandoned by the Department, notwithstanding discussions between the parties in an attempt to reconcile their differences in the permit assessment process. Those suggested alternatives to grant Hatfield access were not satisfactory to Hatfield and the original description of his project as set forth in his application of May 1980, has remained constant throughout the permit review process to include the final hearing. Generally, the parties' discussion of the installation or a bridge between the mainland and the island or the placement of a temporary steel road during the course of construction of his residence on the island did not promote a modified permit application. Finally the indication by staff members of the Department of Environmental Regulation that the project envisioned by his original application would not likely be approved did not cause a change in the obligation to respond to the request for additional information. Even though Hatfield became aware that it was unlikely that the staff would look with favor upon the project as proposed, in making its recommendation as to the issuance or nonissuance of the permit, the staff attitudes in the review process could only have become accepted with finality at the point of entering the Recommended Order. Consequently, it was incumbent upon Hatfield to respond to the request for additional information, in that the information sought was relevant to a consideration of the project which would be examined in the course of the final hearing. The discussions, related to the grant of permission to gain access by placement of a structure between the landslide and the island, entered into by the Department and Hatfield, briefly mentioned before, involved 1) the possibility of the construction of a bridge, 2) use of a metal roadway during the buildout of his residence and 3) his proposal as offered through the application. The bridge proposal advanced by Hatfield was for a span of 20 to 30 feet end the Department desired a span of 200 feet. The reason for the length of bridge required by the Department was to assure protection of a reasonable amount of the lake ecosystem between the landside and the island. Hatfield found the Department's proposed bridge length to be unacceptable due to financial reasons. He likewise did not like the idea of a temporary utilization of a steel roadway to the island during the construction of his residence. Hatfield preferred a permanent road allowing vehicular traffic from the mainland to the island. In conjunction with this alternative offered by the Department, Hatfield could later access the island by utilization of a boat on those occasions when the waters of Lake Nicatoon stood between the landside and the island. While Respondent's application for dredge and fill permit was being considered, an inspection of the property made in the summer of 1982, revealed that a causeway connecting the mainland and Hatfield's island property had been constructed. This causeway is depicted in red on Department's Exhibit No. 10, admitted into evidence, a series of aerial photographs. Ground shots of the causeway may be found as Department of Environmental Regulation's photographic Exhibits No. 8 and No. 9, admitted into evidence. The causeway was primarily constructed by the dredge of material and placement of the material immediately next to the dredge site with an overlay of offsite fill. Respondent was responsible for the construction of this causeway. The causeway is not found in the location contemplated by his permit application and permission was not given by the Department of Environmental Regulation to construct the causeway. This construction occurred in an area dominated by the vegetative species beak rush (Rhynchospora tracyi). Having placed the causeway in this location, Hatfield has created a stationary installation which caused pollution in the course of that construction and can reasonably be expected to be a future source of pollution, in that the dredging and placement of fill and the effects of the structure after construction have emitted and shall emit in the future, substances that are harmful to plant and animal life, in contravention of the Department of Environmental Regulation's rules. By this installation, an alteration in the chemical, physical and biological integrity of the waters of the state has been occasioned by the destruction of submerged land vegetational communities which provide water treatment, and food and habitat for fish and wildlife. When the fill was placed, the filtration and assimilation system of Lake Nicatoon was adversely affected through the removal of existing wetland vegetation. Were the applicant granted the opportunity to install the proposed causeway, the same adverse effects or problems could be expected with that installation. Having discovered the existence of the causeway, and after warning Hatfield that this installation was in violation of regulatory statutes and rules related to the Department's responsibility in environmental matters, Hatfield was served with a notice of violation and orders for corrective action from the Department of Environmental Regulation. The date of this action was June 1983. A copy of that document may be found as Department's Exhibit No. 3, admitted into evidence. In this same time frame, the Department continued to evaluate the permit application of Hatfield related to the proposed causeway and an application appraisal for that proposal was made on June 6, 1983. A copy of that appraisal may be found as Department's Exhibit No. 2, admitted into evidence. Subsequent to that time, and having failed to receive the aforementioned requested additional information from the Respondent, the Department issued its intent to deny the application related to the proposed causeway. A copy of the intent to deny may be found as Department's Exhibit No. 5, admitted into evidence. The date of the denial was November 4, 1983. A more detailed examination of the area in question on the northern shoreline of the lake on the mainland side, shows that natural vegetation has been replaced with a Bahla type of grass. The gradient dropping toward the lake proper reveals upland grasses giving way to submerged species such as maiden cane (Panicum hemitom), pickerelweed (Pontederia lanceolata) and pond lilies (Nymphaea). In this area, the transitional species to be found include St. John's wort (Hypericum fasculatum) and switch grass (Panicum virgatum). Between the landside and the island, in the direction of the island, there are less rooted plants. The dominant plants in this vicinity are pond lilies. The distance to be traversed between the landside and the island related to landward extent of the lake on the landside and island where the proposed causeway would be located is approximately 550 feet, and net the 225 feet described in the application. As you approach the island from the landside, the last approximately 150 feet along the proposed causeway's alignment is dominated by transitional freshwater species to include doheen holly (Ilex cassine), button bush (Cephalanthus occidentalis), St. John's wort (Hypericum fasculatum), and switch grass (Panicum virgatum). The island, itself, is dominated by live oak and sable palm. To summarize, the area between the landside shoreline along the lake and the island shoreline, is dominated by submerged and transitional freshwater species as found in Rule 17-4.02(17), Florida Administrative Code. In the area of the proposed causeway are found detrital feeders, the most numerous of which are amphipods. There ore also larval insects and gastropods, bivalves and freshwater shrimp. Crayfish, frogs and tadpoles are found in this area. In addition, species of fish include mosquito fish, least killfish, shiners, blue spotted sunfish, juvenile largemouth bass, silverside and juvenile catfish. Bird species observed in the area are blue heron, snowy egret, lympkins and ibis. Soft-shell turtles have also been observed in the vicinity of the project site. Should the construction of the causeway be allowed, short and long-term adverse effects on surface waters of Lake Nicatoon can be expected and these effects will be negative. With installation of the causeway, there would be a permanent elimination of the water bodies' littoral zone vegetative community which is important in converting available dissolved nutrients into food material in the aquatic ecosystem. The vegetation also assists in the cleansing of the ambient water and by that action reducing pollution loading. With the construction of the causeway, state water quality standards related to biological integrity, Section 17-3.121(7), Florida Administrative Code; nutrients, Section 17-3.121(17), Florida Administrative Code; and turbidity, Section 17-3.061(2)(r), Florida Administrative Code, can reasonably expected to be violated. Hatfield has failed to give reasonable assurances that the short and long-term impacts of the construction of the causeway would not violate and continue to violate water quality standards as alluded to. These problems as described exist while the unauthorized causeway remains. Hatfield, by actions involving private parties and the State of Florida, Department of Environmental Regulation, has sought necessary easements to gain access to his island property. While successful in this undertaking, these successes do not include the grant of a prohibition against the Department of Environmental Regulation performing its regulatory responsibility. In particular the decisions in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 83-1826-C, Michael Hatfield, Plaintiff v. State of Florida, Department of Environmental Regulation, Defendant, granting partial Summary Judgment for the plaintiff and Defendant's Motion to Dismiss do not bar the Department from fulfillment of its regulatory charge. A copy of these decisions of court are found as Hatfield's Exhibit No. 7, admitted into evidence. In order to return the area where the unauthorized causeway has been placed to its prior existing condition, it would be necessary to remove the fill material and return elevations at the site to their prior level before the construction of the causeway. In addition, beak rush should be replanted in the areas where this dominant vegetation has been removed. An amount of $30.75 has been incurred in the way of cost to prosecute D.O.A.H. Case No. 83-2133
Findings Of Fact The Applicant, John E. Bravo, applied for a dredge and fill permit to construct a dockage facility. The proposed facility will consist of a 910 foot pier with a "T"-shaped platform structure extending perpendicular in two directions from the seaward end of the pier, all of which is designed to accommodate 56 boat slips, restricted to the use of pleasure boats only. The proposed project site is located on the southeast side of "Long Point" and would extend into the waters of East Bay, which is a tidally influenced water body in Bay County, Florida. The project site lies in Class II waters of the State. The waters involved are not approved for shellfish harvesting, however, but rather are under a shellfish harvesting prohibition imposed by the Department of Natural Resources. The portion of East Bay involved also lies within the Intracoastal Waterway. The waterway is approximately 6,000 feet wide at the site of the proposed docking facility. The water along the shoreline of the area is shallow for a considerable distance waterward. The bay bottom is characterized by profuse seagrass for approximately 500 feet waterward of mean high water. Beyond that point, the seagrass (Cuban Shoal Grass) dissipates and disappears. The first 400 feet waterward of the mean high water line at the location of the proposed dock, is shallow and not truly navigable. The water then deepens to approximately five feet at mean low water some 525 feet from the shore. This distance from the shore marks the beginning of the area where no significant amount of seagrass exists and where the boat docking slips and mooring pilings would be installed in a waterward direction down the remaining length of the proposed dock. The water depth continues to increase to approximately 20 feet at the proposed location of the end of the dock. The dock would be constructed of pilings driven into the bay bottom supporting the decking of the walkway portion and "T" portion of the dock. The "T" would be installed on the seaward end of the dock, perpendicular to the walkway portion of the dock with most of the boat slips installed and operated at that point. The length of the docking facility is dictated by the fact that the Applicant seeks to locate the boat slips in a manner so that all boats will be moored and operated well beyond existing seagrasses. In fact, the length of the dock is more than absolutely necessary to accomplish this purpose since water depth and avoidance of seagrasses could accomplished with the dock ending approximately 700 feet from the mean high water line. In an abundance of caution, however, in order to avoid the possibility of propeller dredging and prop wash damaging the bottom substrates and grasses, and since the Intracoastal Waterway is over a mile wide here, the Applicant elected to design the dock in the length and configuration proposed. Such will cause no unreasonable impediment to navigation. In this connection, the Applicant has agreed to post Coast Guard- approved safety lights on the dock which will warn boats of its presence in hours of darkness. Further, the dock does not extend far enough into the 6,000 foot wide Intracoastal Waterway to pose a hazard to barge and other boating traffic in the Waterway. Some of the Petitioner's witnesses revealed that shrimp boats pull their nets during shrimping operations closer than 900 feet to the shore line and in the vicinity of the grass beds. While the presence of the dock may alter the trawling pattern of shrimp boats and the operations of other commercial fishermen, as well as water skiing and boating by members of the public, this may in fact have a beneficial effect by promoting the public interest in preserving marine habitat and the conservation of marine resources by preventing some damage to the grass beds. Such marine grass beds are valuable nursery areas for fishes and other marine animals, the effects upon which must be considered in weighing the various statutory indicia of the public interest which must be satisfied before granting a dredge and fill permit. Further, because the dockage facility at issue would be an isolated one with no significant similar docks in the immediate vicinity, the likelihood that it would pose a navigational hazard to water skiiers, fishermen, shrimpers, and other commercial and recreational interests is rather insignificant. Water Quality The water quality issues posed by a project such as this typically involve the water quality parameters of dissolved oxygen, nutrients, bacteriological quality, turbidity, oils, greases, fuel, paint or varnish, solvents and heavy metals, as contemplated by the below-cited rules concerning general surface water quality criteria and the specific rules related to Class II surface waters. The project site is located in Class II surface waters of the State. Those Class II waters are classified by the Department of Natural Resources as "not approved" for shellfish harvesting. The zone of the Class II waters of East Bay in which shellfish harvesting is not approved extends some two miles eastward of the project site. Marinas and dockage facilities such as this one, which will accommodate fairly large boats in significant numbers, typically pose potential pollution problems involving deposition of nutrients in State waters in the form of fish carcasses and offal, garbage and human wastes. Additionally, boats can pose pollution hazards because of attendant dumping of grease, oil and fuel residues in marina waters as well as the deposition of trash in various forms such as paper and plastic items as a result of human use of the boats and the marina facility itself. Perhaps the most severe potential problem is the deposition of human fecal matter into the water as a result of the flushing of marine heads on the larger boats, which the dockage facility will accommodate in the slips as designed. The fecal coliform bacteria which emanate from the deposition of human wastes into the waters around such a dockage facility can be concentrated in oysters and other shellfish to such an extent as to cause severe illness, permanent disability or even death in humans. Consequently, in order to avoid this problem in a magnitude which would violate the water quality parameter in the rule cited below for bacteriological quality, substantial measures must be taken with a project such as this to avoid the deposition of human wastes from the dockage facility itself and from the boats using the slips. In furtherance of this end, the Applicant proposes to allow no live- aboard vessels to be occupied over night while moored at the docking facilities. Live-aboard vessels are deemed to be those with sleeping accommodations and marine heads. The Applicant also proposes to employ a full-time dock master seven days a week, eight hours a day to ensure that all dockage users are familiar with dockage rules, and who would enforce them, especially that prohibiting any discharges from vessels using or docking at the marina. The rules would be incorporated in the dockage lease agreements. The dock master would be responsible for the clean up and correction of all unauthorized discharges. In view of the potential for sewage discharges from marine heads, even with sewage pump-out facilities and the other restrictions on the use of live-aboard type boats, the additional protective measure of requiring a sewage pump-out line and pump-out equipment, including a storage tank and a means to direct sewage pumped from boats into the upland sanitary sewer system, should be imposed as an additional condition. Additionally, the restriction against over night stays aboard boats, the discharge of marine heads into the marina waters and the requirement for use of the sewage pump-out system should be publicized on large, easily legible signs at various points on the pier so that all boat slip renters or users can be on notice of the restrictions and the dock master's and the Department's enforcement of them. Additional potential sources of nutrient and bacteriological degradation of the dissolved oxygen content and bacteriological integrity of the surface waters involved can be posed by the deposition of fish carcasses and parts, as well as food wastes and other garbage in the marina waters. In order to prevent this, the Applicant has proposed to provide fish cleaning stations located on the upland and to require all fish carcasses and other related wastes to be placed in upland containers and not disposed of in the Class II waters at the dock site. Additionally, waste containers will be located along the length and perimeter of the dock facility for garbage, with regular emptying of the containers enforced by the dock master to prevent spillage. In connection with the upland fish cleaning sites to be installed, the drainage waters or waste water from fish cleaning stations should be directed into an upland disposal system so that it may be ensured that the water does not get back into the Class II waters of the bay. In addition to the above measures, pump-out facilities and equipment will be provided by the Applicant for used engine oil removed from boats and oil and water from boat bilges. These wastes, under agreed-upon conditions, would be transported by pipeline to the upland to a storage tank pending proper disposal. Trash, garbage and other refuse will be deposited in dumpsters for removal by municipal garbage disposal services. No fueling facilities or fueling of boats will be allowed. Additionally, oil spill clean up materials will be maintained on the marina site in sufficient quantities to allow clean up of the maximum spill expected from the largest boat typically using the marina pursuant to the leases for the boat slips. In order to further lessen the possibility of spills of oils, greases and fuels, the permit should be conditioned (as should the leases) upon no boat maintenance being performed at the marina site other than minor engine adjustments. In this context, an additional enforcement measure will be in the boat slip rental agreements themselves. The agreements will contain restrictive provisions requiring lessees to properly handle and dispose of fish carcasses and wastes, used engine oil, bilge water and requiring them to comply with sewage pump-out and refuse disposal conditions enumerated above. Upon completion of the facility, the dock master will manage and accomplish maintenance of the various items of equipment, such as the pump-out facility, on an eight hour a day, seven day per week basis and will enforce the restrictive provisions incorporating the above conditions in the boat slip rental agreements. Those restrictive provisions should include putting the lessees on notice that violation of any of the conditions enumerated above and in the boat slip leases will result in a breach of the lease and removal of their vessel from the marina and reporting of the violation to regulatory authorities. The various expert witnesses agreed that the proposed permit conditions enumerated above, if enforced, would adequately protect water quality as to the above parameters at issue. The Class II water quality standards will not be violated by the installation and operation of the project as proposed, provided the above conditions are strictly enforced and adhered to. Mr. Jack Taylor, the expert witness for the Petitioner, agreed that the above measures would reasonably ensure that the marina will not cause pollution and contravention of Class II water quality standards, but feared that enforcement problems would prevent such conditions from prevailing. In view of the measures enumerated above which will be undertaken by the Applicant to ensure that water quality standards are adhered to, including the liberal use of warning signs for marina customers and slip lessees, the use of a full-time dock master to enforce the conditions and including the enforcement measure of putting the conditions as restrictions in the slip rental leases, it has been shown that the enforcement will be reasonably adequate. An additional and important enforcement measure can be incorporated into this project, however, by requiring the Applicant to submit an operation and maintenance plan for the marina and requiring a monitoring program under the auspices of the Department for at least a year of operation in order to ensure that the project operates as it is proposed under the above-delineated conditions. The Department has continuing enforcement power and the monitoring program would, with regular monthly inspections, allow early detection and correction of any water quality violations, to and including the voiding of the permit and the closing of the marina operation should violations prove severe and uncorrectable. 1/ Such a monitoring program and marina operation and maintenance plan should be required as a condition to granting of the permit. 2/ Finally, it should be pointed out that the area of East Bay where the project would be built is Class II shellfish prohibited waters. The proposed project itself will not likely adversely affect shell fishing to the extent of closing additional waters if the above water quality safeguards are imposed as conditions on the permit and on the marina operation. This is especially true because the boundary line of the shellfish approved water to the east is at least two miles away, which distance incorporates a substantial mixing zone in the open waters of East Bay to sufficiently dilute pollutants which might emanate from the marina or other sources to levels such that the shellfish waters presently open will not be subject to any further closures by the Department of Natural Resources, as a result of this installation. The primary reason the shellfish waters in the immediate vicinity of the proposed project are closed to harvesting is the presence of the Military Point Sewage Treatment Plant which discharges its effluent into the waters of East Bay, such that the DNR's dye flow studies reveal that a 5.1 square mile buffer zone around that plant is necessary for closure to shellfish harvesting to ensure that the public health is not adversely affected by consumption of shellfish from the waters in that buffer area. That buffer area includes the proposed marina site. Additional significant pollution sources include fecal coliform bacteria, oils and greases and other contaminants associated with rainfall events and resultant urban runoff from the City of Parker and surrounding areas, including septic tank leachate and petroleum residues. These influences also currently add to the reasons why shellfish harvesting is precluded in the area of the proposed facility. It was not demonstrated that the addition of the marina and the boats operating under the above strict conditions will result in any additional closures to shellfish harvesting in surrounding, presently approved areas as a result of any water quality degradation posed by the subject project. Public Interest The public interest criteria-enumerated at Section 403.918(2)(a), Florida Statutes, which are actually at issue in this proceeding concern: (1) whether the project will adversely affect the public health, safety, welfare or property of others, (2) whether it will adversely affect conservation of fish and wildlife, including their habitats, (3) whether the project will adversely affect navigation, water flow or cause harmful erosion or shoaling, (4) whether it will adversely affect fishing or recreational values or marine productivity in its vicinity, and (5) whether the current condition and relative value of the functions of the natural area involved at the project site will be adversely affected by the proposed activity. There is no issue or dispute raised concerning the permanence of the project for purposes of criteria number 5 under this subsection, nor as to number 6, concerning historical and archaeological resources. Concerning criteria numbered 1-4 and 7, of this subsection, it has been demonstrated that the project will not likely affect the public health, safety, welfare or the property of others if constructed and operated according to the conditions delineated herein. Some members of the public testifying on behalf of the Petitioner objected to the interference they feared the dock would cause with their jogging along the shoreline and feared an impediment to their use of the area for water skiing. This is the only dock in this vicinity, however, and such interference is minor. It will be well lit in order to avoid impeding navigation or posing a danger to the public health or safety during hours of darkness in terms of the public's ability to safely operate boats in the area. There is some potential for the project adversely affecting conservation of fish and wildlife or their habitats in that, if boats are permitted to operate in the vicinity of the dock and use the dock for mooring, loading and unloading purposes, and the like, closer than 500 feet off shore, harmful propeller washing or dredging of the bottom sediments and seagrasses growing therein will result. If such erosion of the bottom and seagrass growth begins occurring, it will adversely affect and gradually destroy the area as a habitat for fish and other marine life, which is of particular importance since such Cuban Shoal Grass stands are quite beneficial as nursery areas for fish and other organisms. Thus, if boating activity were allowed unimpeded around the dock, including in the near shore area within 500 feet from the mean high water line, the resultant erosion and propeller damage to the seagrass beds in the bottom would indicate that, as to criteria 2 and 3 of the above subsection, that the project would not be in the public interest and would be contrary to the public interest. This same consideration is true with regard to the fourth criteria concerning whether the project adversely affects fishing and recreational values or marine productivity for similar reasons. If marine habitat is disrupted or destroyed in whole or in part in the vicinity of the dock due to erosion and other damage caused by boat and propeller contacts with the bottom or prop wash near the bottom, then as to this criteria, concerning marine productivity and recreational value, the project will be contrary to the public interest also. To the extent that nursery areas for fish and other valuable marine organisms are destroyed, the recreational value in terms of quality of fishing will certainly be diminished. The "current condition and relative value of functions" being performed by the area of marine habitat affected by this project must also be considered. In a like vein, this particular area constituting dense growths of seagrasses has a relatively high functional value as a marine habitat and, particularly, a nursery for marine animals. This current condition and value of the area should be accorded a fairly high status in weighing and balancing the various considerations used in determining whether the project is or is not contrary to the public interest. If the boats which are to use the marina upon its construction and operation are permitted inside the grass bed area, roughly within 500 feet of the shore, then clearly the considerations mentioned above will be the subject of adverse effects caused by the boats' operation which in turn is a direct result of the installation of this marina, the dock and the slips. In view of the reasonable likelihood of the project causing some of the adverse effects mentioned above, resulting from contact by boat propellers and boat hulls with the grass beds or erosive prop wash caused by operation of boats in water so shallow that the propellers are too near the bottom, the Applicant has agreed to a condition which will effectively remove boats from the seagrass bed area, provided it is strictly enforced. That condition would provide that boats and the slips in which they would be moored cannot be landward of 600 feet off shore of the mean high water line along the sides of the seaward extending dock. All boat slips are to be located seaward of that point. The Petitioners, however, raised a valid point that, the dock being so long, the natural tendency of boat operators would be to moor their boats along the sides of the dock as close into shore as boat operation is possible in order to more easily load and unload their boats. In order to prevent this problem from occurring, therefore, an additional condition should be imposed on the permit which would provide that the sides of the dock be enclosed by a fence out to the 600 foot mark and of such a configuration and type as to prevent boat operators from mooring boats to the sides of the dock and gaining ingress or egress from their boats on the dock shoreward of the 600 foot point mentioned above. In other words, if it is made impossible to enter or leave a boat from the dock in the area of the seagrass beds, this would substantially reduce the likelihood that the seagrass beds would be damaged by boats using the dock. Additionally, prominent signs should be posted on or in the vicinity of the dock announcing the necessity to avoid operating boats landward of the point mentioned above and the necessity of avoiding contacting the seagrass beds with boats or boat propellors. If this condition is adhered to and strictly enforced, as even Petitioner's expert witness concedes, it will prevent the chief source of adverse effects upon the public interest. An additional consideration in determining whether or not this project is contrary to the public interest concerns its effect upon navigation. This has already been discussed in the above Findings of Fact. Since this would be the only dock in the immediate area, it is found that the presence of the dock, even though it extends a significant distance seaward of the shore line, will still not pose a significant impediment to navigation. Additionally, as has been pointed out above, the public interest might be served in a positive way by the installation of the dock to the extent that it might prevent shrimp boats and other fishing boats pulling nets from using the shallow seagrass area which will help prevent uprooting and other damage to the grass beds caused by the nets and associated fishing gear. Finally, it should be pointed out that to a certain extent the project will positively serve recreational values and the public welfare, in the context of balancing the various public interest considerations, because at least half the boat slips will be reserved for public use and because the addition of such a marina or docking facility will enhance the public's ability to obtain recreational value from the State waters involved in East Bay by improving marine access to those waters for fishing, boating, skiing and other purposes. In short, reasonable assurances have been provided that the project is not contrary to the public interest.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of John E. Bravo for the dredge and fill permit at issue be GRANTED, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th day of July, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 July, 1987.
The Issue The issue for consideration in this case is whether the Department of Environmental Protection should issue a permit to Sarasota Bay Hotel, Inc., to modify and expand an existing marina facility associated with an existing adjacent hotel, based on reasonable assurances from the applicant that the proposed project satisfies the applicable statutory and rule criteria.
Findings Of Fact At all times pertinent to the issues herein, the Department of Environmental Protection (Department) was the state agency in Florida responsible for the review of environmental resource permit applications and for the regulation of water pollution in specified waters of the state. SBH is a Florida corporation and the general partner of Hotel Associates of Sarasota, Limited (Hotel Associates), the owner of the property in question. The complex at issue is composed of the Hyatt Hotel and certain submerged land underlying the proposed project. SBH is the authorized agency for Hotel Associates for the purpose of obtaining the permit in issue. Petitioners are associations of condominium owners whose properties lie adjacent and to the west of the site in question. The parties stipulated that all Petitioners had standing in this proceeding. The site at issue, owned by Hotel Associates, consists of a portion of the submerged bottoms within a sea- walled, rectangular-shaped, man-made basin which runs in a north-south direction west of U.S. Highway 41 in Sarasota. It is connected by a narrowed channel to Sarasota Bay at its southern end. Hotel Associates owns approximately the northern one-third of the basin, and Petitioners own approximately the western one-half of the southern two-thirds of the basin. Petitioners' property is not covered in the proposed permit. The remaining portion of the basin, comprised of the eastern one-half of the southern two-thirds, is owned by an entity which is not a party to this action, and that portion of the bottom also is not covered by the proposed permit. However, in order for boat traffic to reach the property in issue, the boats must traverse the southern two- thirds of the basin. Both Petitioners and the unconnected third owner maintain existing finger piers within their respective portions of the basin outside the portion in issue. The basin in which the marina in question is located is classified as a Class III water body and is connected to Sarasota Bay, which is a Class III Outstanding Florida Water. Sarasota Bay is located approximately twelve hundred feet from the head of the basin and approximately eight hundred feet from the southern property line of the basin. As of the date of the hearing, the applicant, SBH, operated a permitted marina facility within the perimeter of the property in issue. This permit was issued years ago after the fact; that is, after the marina had already been constructed. As it currently exists, the marina is made up of perimeter docks which adjoin the northern and eastern sides of the basin and includes eight finger piers which provide ten to fifteen slips. In addition, a perimeter dock extends around an existing restaurant which sits on pilings over in the northeast end of the basin. Repairs and modifications were made to the facility under then-existing exemptions in 1995. These included the replacement of numerous copper, chromium, and arsenic (CCA) treated pilings and the re-decking of existing walkways and finger piers with CCA-treated wood. At the present time, seven of the finger-pier slips are under lease to a commercial charter fleet, Chitwood Charters, and one slip located along the perimeter dock is leased to a dive boat operation, Scuba Quest. At least one other finger-pier slip has a boat docked at it for an extended period. This boat is owned by Charles Githler, president of SBH. The remaining finger-pier and perimeter slips are ordinarily used on a transient basis by guests of the Hyatt Hotel and the restaurant. The existing facility, including the finger piers slips and the perimeter slips, contains approximately 6,700 square feet of docking space and is designed to accommodate between twenty to thirty boats, depending upon the length of the boats. On occasion, however, as many as 40 to 60 boats have been docked at the facility. At times, when demand increases, the larger slips have been subdivided to allow up to four boats to be stern-moored per slip. Even more boats have been docked at the facility for boat shows by the use of stern mooring or "rafting," which calls for boats to be moored tied together, side by side, out from the docks. By application dated May 18, 1999, and received by the Department's Tampa District office on June 16, 1999, SBH sought to obtain from the Department a permit to modify and expand its existing marina facility. It proposed to expand the existing approximately 6,700 square feet of dock space to approximately 7,000 square feet, thereby creating a marina with 32 designated slips. Conditions to issuance of the permit, agreed to by the applicant, include a limitation on the number of boats which may be moored at the facility at any time and the addition of storm water treatment capability to the existing storm water drainage system. SBH also agreed to reduce the terminal end of the middle pier from 900 to 400 square feet. SBH also agreed to accept the imposition of several other permit conditions required by the Department, and to offset any impacts on wildlife and water quality as a result of the operation of the permitted facility. In addition to requiring that all long-term slip leases incorporate prohibitions against live-aboards and dockside boat maintenance, these conditions include the following: Overboard discharges of trash, human or animal waste, or fuel shall not occur at the docks. Sewage pump-out service shall be available at the marina facility. * * * 18. Fish cleaning stations, boat repair facilities and refueling facilities are not allowed. 20. There shall be no fueling or fueling facilities at the facility. * * * 28. The shoreline enhancement indicated on Attachment A shall be implemented within 30 days. * * * 30. The permittee shall perform water quality monitoring within the basin at the locations indicated on Attachment A semiannually (January and July of each year) for a period of 5 years. * * * All piles shall be constructed of concrete with exception of 18 mooring piles identified in permit submittals. This permit authorizes the mooring (temporarily or permanently) of a maximum of [32] watercraft at the subject facility. A harbormaster must be designated and maintained at the subject facility. In order to be in compliance with this permit, the ”OARS Ultra-Urban" hydrocarbon adsorbent insert, or Department approved equal, must be installed within the catch basin inlets as shown on the approved drawings. At a minimum, the hydrocarbon adsorbent material shall be replaced and maintained in accordance with manufacturer's instructions. More frequent inspections and replacement of the filtration media may be required, depending on local conditions and results of the required water quality monitoring. * * * The permittee/grantee/lessee shall ensure that: In order to provide protection to manatees during the operation of this facility, permanent manatee information and/or awareness sign(s) will be installed and maintained to increase boater awareness of the presence of manatees, and of the need to minimize the threat of boats to these animals. SBH has also agreed to replace existing CCA-treated wood decking with concrete and fiberglass decking and to replace approximately 80 existing CCA-treated wood pilings with concrete pilings. Based on its analysis of the permit application and the supporting documentation submitted therewith, the Department, on March 2, 2000, entered a Notice of Intent to issue the permit for this project. Shortly thereafter, on March 25, 2000, after obtaining a minimal extension of time to file, the Petitioners filed a Petition for Administrative Hearing opposing the issuance of the proposed permit. Departmental decisions on water quality permits such as that in issue here are dependent upon the applicant satisfying the Department's requirements in several identified areas. These include the impact of the project on water quality; impact of the project on the public health, safety, and welfare; impact of the project on the conservation of fish and wildlife, including threatened or endangered species; impact of the project on navigation, the flow of water, erosion and shoaling; impact of the project on the immediate fishing, recreational values and marine productivity; impact of the project on archeological resources; impact of the project on the current condition and relative value of functions currently performed by areas to be affected; whether the project is permanent or temporary; and a balancing of the criteria, cumulative impacts, and secondary impacts. Addressing each of these in turn, it is clear that the current quality of the water within the existing marina is below established standards. Respondents admit that Petitioner has shown that the existing marina operation has diminished water quality conditions and created an environment that has potential adverse impacts to the fish and wildlife which frequent the basin as well as some of the neighboring property owners. This is not to say that these impacts were envisioned when the basin was constructed. However, other than as they relate to fish and wildlife and to water quality, the problems created by the marina do not relate to most permit criteria. The Respondent's experts calculate that due to its configuration and location, the basin naturally flushes approximately every 14.75 days. This is an inadequate time period to fully disperse any pollutants found in the basis. As a result of the inadequate flushing and the continuing use of the basin as a marina, there are resulting impacts to the water quality surrounding the existing facilities. Mr. Armstrong, Petitioner's water quality expert, indicated the project as proposed would lengthen even further the flushing time because of the addition of new boats and, to a lesser degree, the additional pilings and dock structure. These additions would, he contends, result in additional obstructions to water movement and cause a resultant increase in flushing time. While flushing is not a requirement of the permit, it has a bearing on water quality which is a consideration. Petitioners also argue that the mitigation measures proposed in the permit are inadequate and attack the qualifications of Mr. Cooper, the Department's storm water engineer. They point out alleged errors in Cooper's analysis and cite Mr. Armstrong, an individual with significant experience in water quality monitoring and analysis, to support their other witnesses' conclusions that more boats will increase the risk of hydrocarbon pollution from gasoline and diesel engines. Petitioners urge that the increased contamination, when coupled with the slow flushing action, would tend to settle down to where the pollutants enter the water - in the basin. Since it is clear these impacts would exist and continue even were the pending project not constructed, the issue, then, is whether the proposed project will worsen these environmental impacts. Respondents' authorities calculate they would not. In fact, it would appear the proposed changes called for in the permit, the removal of CCA-treated wood and its replacement with concrete piling and decking and the installation of storm water treatment apparatus, would reduce the adverse impacts to water quality within the basin and, in fact, improve it. It is so found. An issue is raised in the evidence as to the actual number of boats which can effectively use the marina at any one time. SBH contends the present configuration calls for between twenty to thirty boats. Evidence also shows that at times, during boat shows for example, many more boats are accommodated therein through "rafting." Even if the facility is expanded by the most significant number of slips, there is no concrete evidence there would be a significantly increased usage. The current usage is normally well below capacity. Modifications proposed under the pending permit could add as many as ten to fifteen additional slips. The Department has considered it significant that SBH has agreed to limit the number of boats that can be docked in this marina, even after modification. Unfortunately, no specific figure has been given for this limit, and, therefore, it cannot be shown exactly how much long-term water quality benefit can be expected. Nonetheless, it is a reasonable conclusion to draw, as the Department has done, that if the number of boats is limited to a figure at or even slightly higher that that which is currently experienced, a long-term benefit can be expected with the implementation of the other mitigation conditions. This benefit currently cannot be quantified, however. What can be established, and all parties agree, is that the basin currently does not meet water quality standards for copper and dissolved oxygen. The proposed permit addresses the issue of dissolved oxygen by requiring SBH to follow best management practices in the operation of the marina; to treat storm water discharge which enters the marina; and to provide a sewage pump-out station at the marina which would prevent the discharge of sewage into the water. The issue of the water's copper level is addressed by the removal of the CCA-treated pilings and decking and their replacement with concrete and fiberglass; the treatment of the storm-water discharge before its discharge into the basin; and the hiring of a harbor master to ensure that the prohibition against hull scraping at the basin is complied with. A restriction on the number of boats allowed into the marina at any one time would also treat the copper problem by reducing the exposure to anti-fouling paint containing copper. This is a condition of the permit. It is important to note that under existing statutory and rule exemptions, SBH could repair or replace the existing dock structure without the need for a permit. However, the issuance of a permit which permits modification and a slight expansion of the facility will prohibit the replacement of the existing CCA-treated wood with CCA-treated wood. The concrete and fiberglass pilings and decking will not leach copper into the water and, in time, should result in a lower concentration of that substance in the water. Another consideration of the permitting authorities relates to the impact the project would have on public health, safety, and welfare. Petitioners expressed concern that an increase in the number of slips called for in the proposed project would cause an increase in the number of boats that utilize the basin. Currently, though there are a limited number of slips available, there is no limitation on the number of boats which may use the facility. A reasonable estimate of capacity, considering the configuration of the docks and slips and the permit limitations established, indicates that no more than thirty-two boats will be permitted to use the basin at any one time. If this limitation is followed, it is reasonable to expect an improvement in the water quality. Petitioners also express concern that an increase in the number of authorized boats using the marina will result in an increase in the number of boats traveling at excessive speeds in entering and exiting. No evidence was introduced in support of this theory, but, in any case, Respondents counter- hypothesize that the increase in allowed boats will result in an increase in long term lessors over transients, and suggest that long term users are more considerate than transients. Neither side presented any substantial evidence in support of its positions. The impact on the conservation of fish and wildlife is a mandated consideration by the agency. No evidence was presented by either side regarding the existence of fish and wildlife in the area, much less threatened species, other than manatees. To be sure, these noble creatures inhabit the marina at times in appreciable numbers. The threat to them, however, comes from boat strikes, and no evidence was presented as to the number of strikes caused by boats in the marina or its approaches or the seriousness of these strikes. The agency to which the review of impacts to manatees was left, the Florida Fish and Wildlife Conservation Commission (FWCC) opined that the permit cap of 32 boats would keep to a minimum the potential impact to manatees from this project. Any increase in the number of boats, and the minimal impact increase thereby, should, it was considered, be offset by compliance with permit conditions. This opinion was contradicted by Mr. Thompson, Petitioner's manatee expert, who argued against any increase of boat traffic in manatee areas. This position is not the policy of the Department and is not controlling here. Further, it would appear this expert did not consider any mitigation factors proposed by SBH, as the Department is required to do. Taken together, the weight of the evidence supports a finding that the expected impact of this project on fish and wildlife, including those threatened and endangered species, is minimal. Based on the evidence of record, it is found that the expected impact of this project on navigation, the flow of water, erosion, and shoaling in the vicinity is virtually non- existent. The only factor bearing on this issue is the number of boats which will use the facility and its approach. Permit conditions call for a limitation on the number of water craft which will use the facility to be permitted to a number lower than that which uses it, at times, under current conditions. The water is a dead-end harbor, with no through traffic. There is no evidence of either erosion or shoaling now. It would not likely increase. A reduction in traffic as would occur under the conditions imposed by the permit can do nothing but reduce the potential for propeller dredging by boat traffic and the water turbidity that would accompany such strikes. This would improve navigation slightly, and there should be no adverse impact to the flow of water. The evidence presented at hearing did not establish any negative impact on fishing or marine productivity in the vicinity of the proposed project, which is permanent in nature. By the same token, no adverse effect to significant historical or archaeological resources was shown by the evidence of record. The facility in issue is currently a commercial activity consisting of a docking facility and a restaurant. No evidence was introduced to show that the project proposed would have an adverse impact on the current condition and relative value of the current function. In fact, the evidence indicates that the facility would be improved. Though not raised by the evidence, it should be noted that Petitioners presented no evidence that their property values as adjacent property owners, would be adversely effected by this project. In balancing the criteria, cumulative impacts and secondary impacts of the proposed project on the immediate and surrounding area, it appears that the applicant has provided reasonable assurances that the project is not contrary to the public interest. The marina supports the hotel and restaurant which is on it. Adjoining property owners, the Petitioners, expressed concern that the modifications to the existing marina will result in a decrease in water quality in the basin; will increase the potential for fuel spills with their related short term discomforts and long term damages; and will increase the danger to the manatee population which periodically uses the basin. While they are entitled to the quiet enjoyment of their property, it is unreasonable for those who live on the water to expect that the benefits of living by the water would not carry with it the potential for some periodic discomfort created by waterfront activity. The weight of the evidence presented in this case indicates no significant cumulative adverse impacts from this project. To the contrary, the state of the evidence suggests an improvement in water quality and navigation in the basin and its approaches, and any secondary impacts resulting from the accomplishment of the project would be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order issuing to Sarasota Bay Hotel the requested permit to modify and expand the existing marina facility located adjacent to the existing Hyatt Hotel at 1000 Boulevard of the Arts in Sarasota, Florida. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2001. COPIES FURNISHED: Barbara B. Levin, Esquire Scott A. Haas, Esquire Abel, Band, Russell, Collier, Pitchford & Gordon 240 South Pineapple Avenue Sarasota, Florida 34236 Graig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Mark A. Hanson, Esquire Law Offices of Lobeck & Hanson, P.A. 2033 Main Street Suite 403 Sarasota, Florida 34237 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
