The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to an onsite sewage disposal system ("OSDS") permit, whether he is entitled to seek a variance from the permitting requirements in the statutory and regulatory provisions cited below, so as to authorize installation of an OSDS on his property near the Suwannee River, in the Town of Suwannee, in Dixie County, Florida. A related issue concerns whether the Petitioner is entitled to seek a variance in view of Executive Order 90-14 issued by Governor Martinez on January 1, 1990, which the Department maintains removes its discretion to consider variance requests for parties who hake been denied permits pursuant to Rule 10D-6.047(6), Florida Administrative Code. See Section 381.272, Florida Statutes, and Rules 10D-6.043-047, Florida Administrative Code.
Findings Of Fact The Petitioner, James F. Kazmierski, and his wife, purchased real property in the Town of Suwannee, Florida, in Dixie County, on December 29, 1988. The property is described as Suwannee River Park, Unit 2, Lot 19-1. The subject property is waterfront property located upon a saltwater canal. The property was purchased for a total price of $55,550.00. After the purchase of the property, the applicant invested an additional $30,000.00 in the construction of a sea wall and boathouse, making his total investment approximately $80,000.00. At the time the property was purchased by the applicant, other residential construction was proceeding in the Town of Suwannee and other septic tank and drain-field systems were being installed. Numerous other such systems were already installed and operating in the Town of Suwannee, Florida. In February of 1989, in preparation for construction upon the property, the Petitioner contacted the Dixie County Office of the Department regarding the procedures he would be required to follow in order to install an OSDS. An initial inspection was performed by a representative of the Department, and the Petitioner was informed that an OSDS could be installed on his property. Other than this initial inquiry and initial response from the Department, concerning his ability to secure a septic tank permit and installation of the OSDS on his property, the Petitioner did not submit a formal application for a permit at that time because he planned to construct a sea wall and boathouse on the waterfront-side of the property. Construction operations for this project would have necessitated the use of heavy equipment which could have destroyed or damaged an OSDS system if it were already installed. Due to delays in environmental permitting for that project, the sea wall and boathouse were not completed until February of 1990. After completion of those improvements along the canal front of his property, the applicant again contacted the Dixie County Office of the Department and was informed that he would be required to file an application in order to secure an OSDS permit. The applicant, accordingly, submitted the subject application to the Dixie County Office of the Department on February 20, 1990. After initial submission of that application, he was required to submit additional information in the form of a flood elevation information report from the District describing the ten-year flood elevation at the installation site, as well as securing an elevation survey by a registered land surveyor. This was done; and pursuant to stipulation entered into by the parties, posthearing, the District's ten-year flood elevation information report, as amended, reflects a ten-year flood elevation of 15 feet above MSL. The elevation survey of the property established that the actual surface elevation of the property is 4.68 feet. After submission of the flood elevation report and elevation survey, the Dixie County Office of the Department issued a letter of denial of the permit application because the permit application did not meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, in that the installation site, in the view of the Department, lay beneath the ten-year flood elevation and the bottom surface of the drain fields and absorption beds proposed would lie beneath that elevation. After receipt of that denial letter, the Petitioner, joined by his wife, submitted a letter to the Dixie County Off ice of the Department requesting "a hearing for a variance to obtain a septic tank permit . .". The Petitioner believed that he could avail himself of the Department's informal variance board procedure. The Department, however, advised the Petitioner that he should pursue a formal administrative hearing before the Division of Administrative Hearings. The Department advised the Petitioner that an application for a variance from the requirements of Rule 10D- 6.047(6), Florida Administrative Code, would not likely be granted because the property, in the view of the Department, was located within the ten-year flood elevation of the Suwannee River and that, pursuant to the Governor's Executive Order 90- 14, that the Department could not entertain or grant any such variance applications or permits for installations which would lie beneath that elevation. The Petitioner purchased the property with the intent to use it for residential purposes and proposes installing the requested OSDS for a private residence. That residence would contain approximately three bedrooms and a heated or cooled area of approximately 2,000 square feet. The property presently has available water service through a central water system for the Town of Suwannee and does not require the installation of a potable water well. Consequently, the lot size requirements contained in the Department's rules related to the installation of an OSDS and to setback distances for such systems from potable water wells, are not applicable or at issue herein. The Petitioner's property has an actual elevation at the grade surface of the installation site of 4.68 feet above MSL. The soils characterizing the proposed installation site are organic type soils down to approximately 18 inches beneath the grade surface and then the soil becomes a sandy loam-type of soil for perhaps two inches and then organic-type soil from 20 inches down to 48 inches. There is evidence of "mottling", which indicates damp soil, at approximately 6 to 10 inches beneath the surface of the property. Mottling coloration in subsurface soil such as this indicates a wet season water table level where the mottling occurs because it is due to moisture. The water table at the time the evaluation of the site was performed, however, was 36 inches below the existing grade level. The Petitioner suggests that mounding an OSDS system for this property might be feasible because it would place the OSDS septic tank and drainfield system in a filled mound of at least 36 inches height above existing grade level. If this could be done, it might be feasible to elevate the bottom surface of the drain field so that the required minimum of 24 inches differential between the bottom surface 0f[ the drain field and the level of the wet season water table could be maintained. This would be environmentally preferable to installing a conventional subterranean septic tank and drain- field system beneath the natural surface of the lot in question in terms of better protecting the ground and surface waters in the vicinity of the site from degradation through improperly treated sewage effluent, if appropriate slight or moderately limited soils were used in the construction of the mound which would contain the system. Thus, as the Department's witness acknowledged, a mounded system is a possible feasible alternative to accommodate the treatment of the sewage to be expected without causing an adverse impact on public health, the health of the users of the property, nor degradation of the ground or surface waters involved. Although a mounded system is a possible alternative, the Petitioner did not adduce sufficient evidence of technical information which-could show that such a system would, indeed, work properly in terms of having a sufficient, unobstructed land surface surrounding the mound in order to comport with the regulatory requirements in Chapter 10D-6, Florida Administrative Code. Although the technical details necessary to show that such a system would correctly operate on the property in question was not adduced into evidence, there is no dispute, however, that the gross lot size is adequate to accommodate such a mounded system. Thus, if appropriate slight or moderately limited soils were used in the construction of the mound and if it would otherwise conform to all the technical requirements of Chapter 10D-6, Florida Administrative Code, which was not shown, and if the ten-year flood elevation obstacle to permitting did not exist, it would seem that a mounded system could be designed and constructed so as to meet the regulatory requirements of Chapter 372, Florida Statutes, and Chapter 10D-6. The Petitioner did not suggest, through his testimony or evidence, any other reasonable alternative to a conventional subterranean OSDS. In any event, the proposed installation site was not shown to be above the ten-year flood elevation of the Suwannee River. Because of this, neither a mounded system nor any other type of alternative system has been shown to be capable of being installed at the site and comporting with the rules contained in Chapter 10D-6, Florida Administrative Code, particularly, Rule 10D-6.047(6). That is, with either the conventional or mounded system in mind, it has not been demonstrated that the bottom of the drainfield trenches or absorption beds at issue, as envisioned in this rule, would be above the ten-year flood elevation. A report prepared by the District and submitted by the applicant with his application, as amended by posthearing stipulation, establishes a reported ten-year flood elevation of 15 feet above MSL. The Petitioner adduced the testimony of Williams Pierce, an engineer with the District, in their case in chief. His testimony in the Silcox case (DOAH Case No. 90-2660) was stipulated into the record in the instant Mr. Pierce testified that the elevation in the District report (now 15 feet) is the elevation shown in the data contained in the computer model generated and maintained by the District. The information by which this computer model was designed, and which resulted in the 15-foot elevation comes from the U.S. Army Corp. of Engineers' data, along with data from the Federal Emergency Management Agency ("FEMA"), the Hydraulic Engineering Center in Davis, California, the U.S. Geological Survey and the National Oceanic and Atmospheric Administration. The storm surge component of that ten-year flood elevation came from data generated by a privately-contracted study prepared for the federal agencies and supplied to the District. Through the testimony of Mr. Pierce, the Petitioner established substantial doubt as to the accuracy of the 15-foot ten-year flood elevation. Mr. Pierce established that the ten-year flood elevation figure for the Suwannee River decreases as it is measured many miles upstream from the Town of Suwannee, when measurement proceeds in a downstream direction. Thus, for instance, the ten-year flood elevation at the Town of White Springs, at river mile 177, upstream from the coast is approximately 81 feet. The ten-year flood elevation at the location known as "Wilcox", some 33 miles above the confluence of the Suwannee River with the Gulf of Mexico, is approximately 16 feet. This decreasing ten-year flood elevation figure, as progressively measured downstream toward the coast, is a natural incident to the fact that the elevation of the land surrounding the Suwannee River declines in elevation above sea level as the land elevation is measured going in a downstream or coastward direction. That is, as the surrounding upland elevation declines, the waters of the Suwannee River, in a flood event, can spread outward from its channel over a wider area, due to being less confined by higher upland elevations, which results in the flood elevations being lower. Thus one would logically expect that if the ten- year flood elevation at Wilcox, 33 miles upstream, is 16 feet above MSL, the flood elevation at the Town of Suwannee, where the property in question lies, would be substantially lower. However, in the District's flood elevation data, the element of `1storm surge" is additively calculated in the ten-year flood elevation figure. This is designed to take into account surges caused by storms pushing water inland on the coast where the Suwannee River makes its confluence with the Gulf of Mexico. According to the District's data and Mr. Pierce's testimony, this would effectively raise tide actual ten- year river flood stage elevation level. The problem with the 15-foot, ten-year flood elevation figure is that Mr. Pierce was unable, in his testimony, to show how and why the storm surge closely correlates with the river flood stage to produce a 15- foot, ten- year flood elevation at the location of the Petitioner's property near the mouth of the river. Moreover, he was unable to establish in his testimony how tee District's flood elevation calculations and figures take into account any probability of the storm surge occurring simultaneously with the ten-year flood event for the Suwannee River or what that probability might be. Thus, the Petitioner's evidence casts substantial doubt that the 15-foot, ten-year flood elevation figure is accurate and comports with logic. Therefore, it can be found herein that the 15-foot, ten-year flood elevation figure has not been proven to be accurate. The problem remains, however, that the Petitioner must establish that the installation site in question does not occur beneath the ten- year flood elevation of the Suwannee River. The Petitioner adduced no evidence to establish what the ten-year flood elevation might actually be nor that the installation site lies above it. Consequently, sufficient proof has not been established to comport with the requirement that the bottom surface of the drain field trenches or absorption beds lies above the ten-year flood elevation, so as to show that the installation site is not subject to inundation. The Petitioner did not formally apply for a variance from the permitting statute and rules, upon having the permit application initially denied by the Department. This is because the Department advised the Petitioner, in effect, that it would be futile to apply for a variance and to avail himself of the Department's informal variance procedure because of the effect of the Governor's Executive Order 90-14, entered on January 17, 1990. That Executive Order incorporated Recommendation No. 36 of the "Suwannee River Task Force" report, which recommended that all OSDS installations lying beneath the ten-year flood elevation of the Suwannee River be prohibited and that the grant of any permits for OSDS installations be down in strict compliance with pertinent permitting statutes and rules. According to the Department, the Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation of the Suwannee River be prohibited. The Department, thus, takes the position that the entry of the Executive Order took away its discretion to entertain any variance applications for properties lying beneath the ten-year flood elevation and. advised the Petitioner to avail himself of a formal hearing procedure before the Division of Administrative Hearings rather than seek a variance through the Department's own internal variance procedure. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner will definitely experience a hardship if a permit or variance is not granted, because of the money expended to purchase and develop the lot, which will be largely unusable without the ability to establish a residence thereon by installing an OSDS system, it has not been proven that no reasonable alternatives exist to the installation of a conventional OSDS subterranean-type system on the property. The Petitioner proposed installation of a mounded system which has some promise as a reasonable alternative system (although sufficient evidence was not adduced to establish that such a system would adequately treat and dispose of the effluent in question without causing a public health hazard or degradation of ground and surface waters, as discussed above). Nor was sufficient evidence adduced of a lack of adverse environmental effects, in this regard, as to establish any other type of reasonable alternative approach to treatment and disposal of the expected sewage effluent. Thus, one element of the variance criteria cited below has not been met. A mounded system, with adequate proof, might be established as a reasonable alternative. It has neither been established that the installation of an OSDS system of the conventional subterranean type, nor any other type, would not have an adverse impact on public health or would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof.
Recommendation It is, accordingly, RECOMMENDED: That a Final Order be entered denying the application of the Petitioner for an OSDS permit. DONE AND ENTERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3338 Petitioner's Proposed Findings of Fact: 1-15. Accepted. 16. Rejected, as irrelevant, since this is not a rule challenge proceeding pursuant to Section 120.56 Florida Statutes. 17-29. Accepted. Respondent's Proposed Findings of Fact: 1-4. Accepted. Rejected, as not in accordance with the preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-13. Accepted. 14. Rejected, as subordinate to the Hearing Officer's findings of fact and as not entirely in accordance with the preponderant evidence. COPIES FURNISHED: Robert Moeller, Esq. P.O. Drawer 1419 Cross City, FL 32628 Frances Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in this case is whether a proposed amendment to Section 12.2.8 of the agency's Applicant's Handbook: Management and Storage of Surface Waters (1) exceeds the agency's grant of rulemaking authority in Sections 373.044, 373.113, and 373.414, Florida Statutes (2000), and (2) enlarges, modifies, or contravenes Section 373.414(8), Florida Statutes (2000).
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: a. Background 1. This case involves a challenge by Petitioner, the Sierra Club, to a proposed amendment to an existing rule of Respondent, st. Johns River Water Management District (District), addressing cumulative impacts. The amendment is found in Section 12.2.8 of a document entitled Applicant's Handbook: Management and Storage of Surface Waters (Applicant's Handbook) , which is incorporated by reference as a rule in Rule 40C-4.091(1), Florida aaministrative Code. The Applicant's Handbook provides permit applicants and others with information, including criteria that must be met, regarding the District's permitting program for the regulation of surface water management systems. 2. The District's current cumulative impacts rule is found in Sections 12.2.8 through 12.2.8.2 of the Applicant's Handbook and has been in effect since October 3, 1995. Cumulative impacts are a component of the requirements that must be met to obtain an Environmental Resource Permit (ERP). An ERP must be obtained prior to undertaking certain land development activities. The purpose of considering cumulative impacts is to prevent the piecemeal destruction of the environment arising from the gradual elimination of environmental resources caused by a proliferation of small projects. Morales v. Dep't of Envir. Reg., 7 FALR 4786 (DER, Sept. 18, 1985). 3. On November 30, 1999, Petitioner filed with the Division of Administrative Hearings a non-rule challenge alleging that a policy being consistently used by the District in interpreting its cumulative impacts rule was an adopted rule that violated Section 120.54(1) (a), Florida Statutes (1999). That matter was assigned DOAH Case No. 99-5003RU. 4. Because of the challenge, the District agreed to initiate rulemaking for the purpose of adopting a rule regarding the assessment of cumulative impacts. The parties then agreed that while the rulemaking procedures were underway, the rule challenge could be abated. Accordingly, the case was placed in abeyance on February 18, 2000. 5. During the 2000 session of the Florida Legislature, bills were proposed by both the House and Senate which contained language amending or affecting Subsection 373.414(8), Florida Statutes, regarding the cumulative impacts assessment under the ERP program. Eventually, House Bill 2365 was enacted effective May 17, 2000. 6. Because the District had begun rulemaking and the Legislature had passed a bill amending the cumulative impacts statute, Petitioner voluntarily dismissed its rule challenge, and Case No. 99-5003RU was closed on July 18, 2000. 7. On September 13, 2000, the District's Governing Board authorized its staff to publish a Notice of Proposed Rule Development in the Florida Administrative Weekly (FAW) regarding, among other things, an amendment to the District's cumulative impact rule. Such a notice was published on October 27, 2000. 8. After rule workshops on the proposed rule were conducted, on January 9, 2001, the District's Governing Board authorized its staff to publish a Notice of Proposed Rules (Notice) in the FAW regarding, among other things, an amendment to the cumulative impacts rule. The Notice was published on January 19, 2001. 9. On February 9, 2001, Petitioner filed a petition to Determine the Invalidity of a Proposed Rule challenging, among others, the proposed amendment to the cumulative impacts rule. At that time, the proposed amendment was intended to amend existing Section 12.2.8.2 of the Applicant's Handbook. 10. On February 14, 2001, the District's Governing Board adopted the proposed rules published in the FAW, as modified by several amendments not relevant here. On February 28, 2001, Intervenors, Florida Homebuilders Association, Association of Florida Community Developers, Florida Minerals Association, Florida Chamber of Commerce, and U.S. Cellular, filed a Petition to Intervene in support of the challenged rules. Prior to the petition being granted, Petitioner and the District reached a partial settlement agreement to resolve all challenges to the proposed rules except for the changes in the cumulative impacts rule. That partial settlement required amendments to certain proposed rules and was contingent upon approval by the District's Governing Board. 11. On March 14, 2001, the District's Governing Board approved the partial settlement agreement, approved the changes to certain proposed rules required by the terms of the partial settlement agreement, and approved several other changes to the proposed rules. The one approved change relevant to this case removed the originally proposed amendment out of Section 12.2.8.2 and added the same language in Section 12.2.8. The purpose for doing so was to place the revised language at the beginning of the discussion of cumulative impacts rather than at the end, so that a reader would not have to read many inapplicable provisions unnecessarily. 12. On March 16, 2001, Petitioner filed a Notice of Partial Voluntary Dismissal, as required by the partial settlement agreement, and dismissed all portions of its petition except that part relating to the proposed amendment to Section 12.2.8. 13. The parties have stipulated that Petitioner and Intervenors are substantially affected persons and have standing to participate in this action. b. The proposed rule 14. The proposed rule at issue here reads as follows (underscored language represents the rule amendment) : Pursuant to paragraph 12.1.1(g), an applicant must provide reasonable assurances that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. The impact on wetlands and other surface waters shall be reviewed by evaluating the impacts to water quality as set forth in subsection 12.1.1(c) and by evaluating the impacts to water quality as set forth in subsection 12.2.2. If an applicant proposes to mitigate these adverse impacts within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, then the District will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters, and consequently, the condition for issuance in paragraph 12.1.1(g) will be satisfied. The drainage basins within the District are identified on Figure 12.2.8-1. When adverse impacts to water quality or adverse impacts to the functions of wetlands and other surface waters, as referenced in the paragraph above, are not fully offset within the same drainage basin as the impacts, then aAn applicant must provide reasonable assurance that the proposed system, when considered with the following activities, will not result in unacceptable cumulative impacts to water quality or the functions of wetlands and other surface waters, within the same drainage basin: (a) projects which are existing or activities regulated under part IV, chapter 373 which are under construction or projects for which permits or determinations pursuant to sections 373.421 or 403.914 have been sought. (b) activities which are under review, approved, or vested pursuant to section 380.06, OF other activities regulated under part IV, chapter 373 which may reasonably be expected to be located within wetlands or other surface waters, jin the same drainage district, based upon the comprehensive plans, adopted pursuant to chapter 163, of the local governments having jurisdiction over the activities, OF applicable land use restrictions and regulations. only those activities listed in paragraphs (a) and (pb) which have similar types of impacts (adverse impacts) to those which will pe caused by the proposed system will be considered. (All citations in paragraphs (a) and (b) refer to provisions of Florida Statutes. ) The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications. 15. As specific authority for adopting the amendment, the District relies upon Sections 373.044, 373.113, and 373.414, Florida Statutes (2000), while Section 373.414 (8), Florida Statutes (2000), is cited as the law peing implemented. 16. Petitioner contends that the proposed amendment exceeds the District's grant of rulemaking authority in Sections 373.044, 373.113, and 373.414, Florida Statutes (2000), because "the proposed rule intends to by-pass the cumulative impacts analysis required under section 373.414 (8) (a) Fla. stat." It also contends that the amendment enlarges, modifies, or contravenes Section 373 .414(8), Florida Statutes, "because the Legislature has not provided the District with the authority to adopt a rule allowing ERP applicants not to follow sec. 373.414(8) (a), Fla. Stat., that is, not to consider cumulative impacts to surface waters and wetlands from certain specified projects and activities." 17. In 1984, the Legislature enacted the now-repealed Warren S. Henderson Wetlands Protection Act (Henderson Act). Section 1 of the Henderson Act required the former Department of Environmental Regulation (DER) to require permits prior to dredging or filling waters of the state, including wetlands. Section 1 of the Henderson Act also required DER, in deciding whether to issue a permit, to consider the cumulative impacts of that project along with other existing and proposed projects. This cumulative impact doctrine originally developed as DER policy, but was later codified by the Legislature in Section 403.919, Florida Statutes. It differs from the "secondary impact" policy which examines "any other relevant activities that are 'very closely linked or casually related to the proposed activity.'" Conservancy, Inc. Vv. A. Vernon Allen Builder, Inc., 580 So. 2d 772, 778 (Fla. 1st DCA 1991). 18. The Henderson Act's cumulative impact consideration was set forth in former Section 403.919, Florida Statutes, as follows: The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider: 10 (1) The impact of the project for which the permit is sought. (2) The impact of projects which are existing or under construction, or for which permits or jurisdictional determinations have been sought. (3) The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations. 19. The Henderson Act cumulative impact consideration did not have a defined geographic scope of review. In other words, there was no geographic limit beyond which DER was not required to look at the cumulative effect of existing or proposed projects. So long as a future project was reasonably expected to occur in jurisdictional waters anywhere in Florida, DER was required to consider that future project along with the project for which the permit was sought. 20. In 1993, the Legislature repealed the Henderson Act, including former Section 403.919, Florida Statutes, by enacting Chapter 93-213, Laws of Florida. That chapter created the Environmental Resource Permitting program to replace the wetland regulatory program under the Henderson Act. Much of the language of the Henderson Act was incorporated into Section 373.414, Florida Statutes. A revised cumulative impact consideration was enacted as Subsection 373.414(8), Florida Statutes. As revised, that provision read: 11 (8) The governing board or the department, in deciding whether to grant or deny a permit for an activity regulated under this part shall consider the cumulative impacts upon surface water and wetlands, as delineated in s. 373.421(1), within the same drainage basin as defined in s. 373.403(9), of: (a) The activity for which the permit is sought. (b) Projects which are existing or activities regulated under this part which are under construction or projects for which permits or determinations pursuant to s. 373.421 or s. 403.914 have been sought. (c) Activities which are under review, approved, or vested pursuant to s. 380.06, or other activities regulated under this part which may reasonably be expected to be located within surface waters or wetlands, as delineated in s. 373.403(9), based upon the comprehensive plans, adopted pursuant to chapter 163, of the local governments having jurisdiction over the activities, or applicable land use restrictions and regulations. 21. Of significance, Subsection 373.414(8), Florida Statutes, differs from the former Section 403.919 in that Subsection 373.414(8) sets forth a geographic scope of analysis for considering cumulative impacts. More specifically, it requires that cumulative impacts only be considered within the same drainage basin as the activity for which the permit is sought. Thus, when considering the cumulative impact of the activity for which the permit is sought in conjunction with existing and proposed projects, the scope of the analysis is limited to the drainage basin in which that activity is located. 12 22. The District, along with the other four water Management districts and the Department of Environmental Protection, adopted rules to implement Section 373.414. These rules required that the cumulative impacts of a project be considered in determining whether to issue an ERP for that project. See Rule 40C-4.302(1) (b), Florida Administrative Code. They also included a map setting forth the drainage basins within which the cumulative impact consideration would occur. The existing Section 12.2.8 of the Applicant's Handbook provides that "an applicant must provide reasonable assurances that a regulated activity for which the permit is being sought." 23. Section 12.2.8 also provides that the "impact on wetlands and other surface waters shall be reviewed by evaluating the impacts to water quality as set forth in subsection 12.1.1(c) and by evaluating the impacts to functions identified in subsection 12.2.2." When a proposed project impacts wetlands and other surface waters so as to cause a loss of functions, a permit applicant may offer mitigation to offset that loss of function. For the mitigation to be acceptable, it must offset the functions lost. 24. I£ a project causes impacts to water quality or biological functions that are not offset in some fashion within the same drainage basin as the project, and other projects with similar impacts were likewise permitted by the District in the future, then these adverse impacts to the environment of the 13 drainage basin could "cumulate." In this situation, the impacts of a proposed project would be considered in conjunction with past, present, and future activities with similar impacts as described in Sections 12.2.8(a) and {(b) to determine whether the cumulative impacts were unacceptable, considering the drainage basin as a whole. 26. Under the new rule, an in-depth analysis referred to in the preceding finding would be unnecessary if the adverse impacts of the proposed project were wholly offset within the basin through the process of mitigation. This is because no adverse impacts to water quality or biological functions remain that could "cumulate" due to similar future projects. 27. Since October 1995, when the current cumulative impacts rule became effective, and based upon the foregoing requirements, the District adopted a position that so long as the mitigation occurs within the same drainage basin as the impact, and the mitigation offsets the impact, that is, the lost functions, then the District will consider that the project will not have any cumulative impacts. The District's rationale behind this position was that if adverse impacts (lost functions) are fully offset in the same drainage basin, then no impacts remain to "cumulate" in that basin if similar types of activities are repeatedly permitted in that basin. Thus, by definition, no “piecemeal destruction of the environment" can occur within that 14 drainage basin because there is no net loss of wetland functions within that drainage basin. 28. As noted earlier, Petitioner challenged this position as illegal non-rule policy in December 1999 (DOAH Case No. 99- 5003RU). However, the District and Petitioner agreed to abate that case to allow the District to pursue rulemaking on the subject and to recognize that the Legislature was addressing the issue. 29. During the period of abatement, the 2000 Legislature considered several bills which contained language amending or affecting Section 373.414(8). On March 7, 2000, Senate Bill (SB) 1686 was introduced in the Florida Legislature. The language in Section 2 of SB 1686 was later included in Section 4 of House Bill (HB) 2365, which language eventually passed and was enacted into law in Section 4 of Chapter 2000-133, Laws of Florida. 30. A Senate Staff Analysis (Analysis) of SB 1686 described the "present situation" which warranted legislative action as follows: The St. Johns River Water Management District reports that in addressing the cumulative impacts of activities proposed to be permitted in surface waters and wetlands, the District interprets its rules to the effect that if a permit applicant proposes mitigation within the same drainage basin as the adverse effects to be mitigated and the mitigation completely offsets the adverse effects, the activity is considered to have met cumulative impact requirements in that basin. An administrative challenge has been made to the District's interpretation of the 15 31. effect of 32. 373.414 (8) 33. indicates rule, requesting that the District initiate rulemaking to clarify the issue. It has been reported that all the WMDs and the Department of Environmental Protection (DEP) currently make the same interpretation of their rules as does the St. Johns River WMD. Section 2 of the Analysis went on to describe the the proposed statutory amendment as follows: Section 2. Section 373.414, F.S., is amended to provide that if an applicant proposes mitigation within the same drainage basin as the adverse effects to be mitigated, and if the mitigation offsets these adverse effects, the governing board and the DEP shall consider the regulated activity to meet the requirements of s. 373.414(8) (a), F.S., which requires that the cumulative impacts be considered in evaluating a permit for activities in surface waters and wetlands. The bill also provides that the enactment of this change in s. 373.414(8) (b), F.S., may not be construed to prohibit mitigation outside the drainage basin which offsets the adverse effects within the drainage basin. On May 17, 2000, the following amendment to Section , Florida Statutes, became effective: (b) I£ an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, the governing board and department shall consider the regulated activity to meet the cumulative impact requirements of paragraph (a). However, this paragraph may not be construed to prohibit mitigation outside the drainage basin which offsets the adverse impacts within the drainage basin. The legislative history behind the amendment clearly that the Legislature made this change to address Petitioner's non-rule policy challenge. Indeed, after the 16 Legislature enacted the amendment, Petitioner voluntarily dismissed its non-rule challenge against the District.
Conclusions For Petitioner: Deborah J. Andrews, Esquire 11 North Roscoe Boulevard Ponte Vedra Beach, Florida 32082-3625 Peter B. Belmont, Esquire 102 Fareham Place North St. Petersburg, Florida 33701-2967 — For Respondent: Kathryn L. Mennella, Esquire Thomas I. Mayton, Jr., Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 For Intervenors: Frank E. Matthews, Esquire Eric T. Olsen, Esquire Hopping Green Sams & Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 24
The Issue The issue to be determined in this case is whether All Aboard Florida – Operations, LLC (“the Applicant”); Ram Land Holdings, LLC (“RLH”); and J. Acquisitions Brevard, LLC (“JAB”), are entitled to the Environmental Resource Permit (“ERP”) issued by the St. Johns River Water Management District (“SJRWMD”) for construction and operation of certain railway facilities within the portion of the Florida East Coast Railway corridor known as Segment D08 (the “Project”).
Findings Of Fact The Parties The Petitioner is a water control district organized under chapters 189 and 298, Florida Statutes. It owns and maintains the North, Main, and South Canals in Indian River County. The Petitioner manages drainage works for approximately 55,000 acres within Indian River County situated west of the Indian River Lagoon between U.S. 1 and I-95, including portions of the City of Vero Beach. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company headquartered in Miami, Florida, formed for the principal purpose of developing and operating express passenger rail service connecting the four largest urban population centers in Southern and Central Florida--Miami, Fort Lauderdale, West Palm Beach, and Orlando. This project is known as the All Aboard Florida Project. Respondents, RAM Land Holdings, LLC, and J. Acquisitions Brevard, LLC, are third-party mitigation providers. The parties stipulated that RLH and JAB are not necessary parties to this proceeding. SJRWMD is an independent special district created by chapter 373, charged with the duty to prevent harm to the water resources of the District and to administer and enforce chapter 373 and the rules promulgated thereunder. The proposed project is within the boundaries of the District. The Proposed Project Most of the Applicant’s passenger service route, including the portion which will pass through Indian River County, will use an existing railroad right-of-way established in the late 1800s by Henry Flagler, the founder of the Florida East Coast Railway (“FECR”). The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It was designed to support passenger and freight operations on shared double mainline tracks and was in use from 1895 to 1968. The passenger service was then terminated and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The Project would restore the passenger service that once existed on the FECR rail corridor. The passenger service route will utilize the FECR right-of-way from Miami to Cocoa Beach and then continue along a new segment to be constructed along a limited-access highway system which runs inland from Cocoa Beach to Orlando. The Applicant is proposing to upgrade the portion of the FECR right-of-way between Miami and Cocoa Beach by, among other things, replacing existing railroad ties and tracks and reinstalling double tracks. This proceeding involves only Segment D08 of the proposed Project. Segment D08 runs from the southern edge of Indian River County to Cocoa Beach in Brevard County. In Segment DO8, the existing FECR railway includes bridges which cross the North Canal, Main Canal, and South Canal owned and maintained by the Petitioner. The bridges are referred to as the North Canal Bridge, the Main Canal Bridge, and the South Canal Bridge. Each bridge supports a single track. The Project calls for adding new bridges alongside the three existing bridges over the canals so that the crossings will again accommodate two tracks. The Petitioner’s objections to the proposed permit are confined to the proposed bridges at the North Canal and South Canal. The new bridge at the North Canal would be constructed along the west side of the existing bridge. The new bridge at the South Canal would be constructed along the east side of the existing bridge. Obstruction of Water Flow The Petitioner’s main objection to the proposed project is that the proposed new bridges over the North Canal and South Canal are too low to allow clearance during a 100-year storm event, which would cause water flow to be obstructed. The Petitioner believes floating debris is likely to be blocked and accumulate at the bridges, causing water to back up and flood lands upstream of the bridges. The Petitioner’s Superintendent, David Gunter, testified that there were “a couple of events where debris backed up either at a bridge or a culvert.” However, he said none of the Petitioner’s ratepayers ever had a flooding event that was attributable to the FECR bridges. The new bridges would be constructed with the same low chord/beam elevations (lowest part of the bridge) as the existing bridges that would remain. For the existing bridge and the proposed new bridge over the North Canal, the low beam elevation is 13.1 feet NAVD88 (North American Vertical Datum 1988). For the existing bridge and the proposed new bridge at the South Canal, the low beam elevation is 8.5 feet NAVD88. Because the proposed new bridges would be at the same height above the canals as the existing bridges, the potential problem the Petitioner is concerned about--floating debris being trapped by the bridges--is already a potential problem. The Petitioner did not claim or present evidence to show that the new bridges would increase the probability that floating debris would be trapped, over and above the current probability for such an event. The Petitioner argued that “two wrongs don’t make a right,” and the new bridges should not be approved even though they are at the same height as the existing bridges. Obviously, the Petitioner wants the existing bridges raised, too. Based on the FEMA Flood Insurance Rate Maps used by the Applicant, the 100-year flood elevation at the North Canal bridge is 11.5 feet NAVD88, or 1.6 feet below the low beam elevation of the North Canal Bridge. The 100-year flood elevation at the South Canal Bridge is 9.3 feet NAVD88, or 0.8 feet below the low beam elevation of the North Canal Bridge.1/ The Applicant’s consultants performed hydrologic and hydraulic analyses for the proposed new bridges using a HEC-RAS model which was adapted to local site-specific conditions and incorporated FEMA flood level data. They determined that in a 100-year storm event, the new bridge at the North Canal would cause no more than a 0.04-foot (0.48 inches) increase in water levels immediately upstream (within 500 feet) of the bridge, and the new bridge at the South Canal would result in no more than a 0.07-foot (0.84 inches) increase in water levels immediately upstream. These were considered insignificant impacts that would not cause flooding to upstream properties. The Petitioner disputes the Applicant’s determination that there is a 1.6-foot clearance at the North Canal Bridge and a 0.8-foot clearance at the South Canal Bridge. The Petitioner asserts that the FEMA elevations used by the Applicant are not based on the best available data, and the best available data show the 100-year flood elevations are higher. The Petitioner calculated higher 100-year flood elevations using SJRWMD flood stage gages in the canal near the North bridge and the Petitioner’s own hydrologic model. The Petitioner determined that the low beam at the North Canal bridge is 0.6 feet below the 100-year flood level, and the low beam at the South Canal bridge is 1.5 feet below the 100-year flood level.2/ In other words, the Petitioner contends there is no clearance. The Petitioner’s witness, Simons, testified about why he thought FEMA did not use the Petitioner’s water level data and analysis in determining 100-year flood elevations for the FEMA flood maps, but the testimony was largely hearsay. SJRWMD’s Applicant’s Handbook refers to the use of FEMA flood level data for these kinds of analyses, but it also refers to the use of “detailed information” possessed by SJRWMD. See Section 3.3.4, A.H., Vol II. Information possessed by SJRWMD would likely include data from their own water level gages. The Petitioner did not present sufficient evidence to prove their data and modeling was more accurate or reliable than FEMA data and the Applicant’s modeling. FEMA flood insurance rate maps are a standard reference in the industry. The HEC-RAS model is a generally accepted tool used by engineers for this kind of analysis. None of the parties presented evidence to make clear what is the usual or industry protocol for choosing between conflicting data of this kind in the permitting process. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. It is found, therefore, that the Applicant’s use of FEMA data and the HEC-RAS model was reasonable. The Petitioner admitted that the 100-year flood elevation in the canals has been increasing over time because of the conversion of land uses in the area from agricultural to urban. Because the Petitioner regulates discharges to its canals, it has some responsibility for the rising water levels in its canals. The Petitioner claimed that reduced clearance was due in part to the bridges from “age, use, lack of maintenance, frugality or causes other than design.” However, the Petitioner presented no supporting evidence for this allegation in the record. In its regulatory role, the Petitioner requires a minimum clearance of one foot between a bridge’s lowest horizontal beam and the 100-year flood elevation to avoid obstruction of water flow through the canals. SJRWMD rules do not specify that bridges be designed to have a minimum clearance above the 100-year flood elevation. The applicable design standards for flood protection in the Applicant’s Handbook are set forth in Section 3.3.2(b), A.H., Vol. II, which provides in pertinent part as follows: Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other water courses must not be altered so as to adversely impact the off-site storage and conveyance capabilities of the water resource. It is presumed a system will meet this criterion if the following are met: * * * A system may not cause a net reduction in the flood conveyance capabilities provided by a floodway except for structures elevated on pilings or traversing works. Such works, or other structures shall cause no more than a one-foot increase in the 100-year flood elevation immediately upstream and no more than one tenth of a foot increase in the 100- year flood elevation 500 feet upstream. The bridges would not cause more than a one-foot increase in the 100-year flood elevation immediately upstream or more than one tenth of a foot increase in the 100-year flood elevation 500 feet upstream. Therefore, the Applicant is presumed to have provided reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property, or adversely impact the existing surface water storage and conveyance capabilities of the North Canal or South Canal. The Petitioner argues that the SJRWMD criteria fail to account for floating debris. The Petitioner claims that bridge designers are obliged to follow basic design guidelines published by FDOT and other government agencies and provide clearance for floating debris, but Petitioner did not offer into evidence these “basic design standards” or prove their industry- wide acceptance.3/ SJRWMD’s engineer, Fariborz Zanganeh, stated that the potential for floating debris to be blocked by a bridge or any other traversing work is considered by SJRWMD to be an operation and maintenance issue, not a design issue. The Petitioner referred to some road bridges in the area that, upon reconstruction, were raised by county, state, or federal governments to comply with the Petitioner’s clearance requirement. First, it is noted that the Applicant does not propose to reconstruct the existing North Canal Bridge and South Canal Bridge. Second, there is a substantial difference between the effort and cost of raising a road and raising a railroad track. Raising the proposed bridges would require elevating the railroad bed for a considerable distance in each direction so that slopes comply with railway safety criteria. The Petitioner failed to prove the Project does not comply with SJRWMD flood control criteria. The Sand Bar The Petitioner also objects to the proposed bridge at the North Canal because the Petitioner contends the existing bridge pilings have caused a sand bar to form, and shoaling and erosion would likely increase with construction of additional pilings. The Petitioner believes the problem is caused by the fact that the existing and proposed pilings, which would have the same alignment, are not parallel to water flow in the canal. There are sand bars upstream of the bridge which cannot have been caused by the bridge pilings. The North Canal, which runs downstream almost due east makes a turn to the northeast under the North Canal Bridge. The record evidence, as well as generally known facts of which the Administrative Law Judge may take official recognition, establish that a change in the direction of water flow in a channel creates non-uniform flow, which can cause erosion and shoaling. The Petitioner did not present evidence to distinguish between shoaling and erosion that could be caused by the pilings and shoaling and erosion that could be caused by the turn in the canal. The Petitioner did not call a witness for this subject who had special knowledge of the science of hydraulics and no study was done by the Petitioner to confirm its theory of the cause. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. The Applicant asserts that the conditions of the proposed permit provide for maintenance that would include “the removal of any buildup of siltation that might occur over time and potentially cause the North Canal Bridge structure to cease operating as designed.” However, whether the bridge is operating as designed would not address whether the canal is operating as designed because of shoaling. There is no condition in the proposed permit that imposes on the Applicant the duty to remove built-up sediment beneath the North Canal Bridge. It is unlikely that such a requirement can be imposed on the Applicant because it does not own or control the canal. The Petitioner claims the railroad authority denied the Petitioner access to the right-of-way when it sought permission in the past to remove the sandbar at the North Canal Bridge. Unfortunately, a permit condition that requires the Applicant to cooperate with the Indian River Water Control District in performing canal maintenance at the bridges is probably not enforceable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the issuance of Environmental Resource Permit No. 135214-2, with the conditions set forth in the Technical Staff Report dated August 26, 2016. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2017.
Findings Of Fact The Parties The Applicant, Trail Ridge Landfill, Inc. (Trail Ridge), is a corporation formed in 1989 for the purpose of developing a landfill project and providing waste disposal capacity for the City of Jacksonville. Trail Ridge Landfill, Inc. is a wholly-owned subsidiary of Waste Management of North America, Inc. Its operating division is involved in the waste collection, recycling and disposal business. Waste Management of North America, Inc. is a wholly-owned subsidiary of Waste Management, Inc., which is involved in all facets of solid waste collection and disposal nationally. The Florida Department of Environmental Regulation (DER) is an agency of the State of Florida charged with the responsibility of regulating solid waste management facilities and with permitting their initial construction and operation. It is charged with reviewing applications for permits for construction of such facilities, for reviewing applications for dredge and fill permits in wetlands or waters of the State and, as pertinent to the project involved in this proceeding, for storm water management and storage of surface water and the regulation thereof through its permitting and enforcement authority contained in Chapters 403 and 373, Florida Statutes, and Titles 40C and 17, Florida Administrative Code. The Petitioners are Coastal Environmental Society, Inc. (CESI), a not- for-profit Florida corporation established for the purpose of protecting natural resources. St. Johns Preservation Association, Inc. (SJPA), also a not-for- profit Florida corporation established for the purpose of protecting the community, including environmental concerns; Baldwin-Maxville Coalition, Inc., also a not-for-profit corporation established to promote the health and welfare of its community, including environmental concerns; William McCranie, a resident of Jacksonville, Florida; Darryl Sperry, a resident and citizen who lives 1 1/4 miles from the proposed landfill site in Baker County. All Petitioners have been established to be substantially affected by the proposed permitting and the projects related thereto and all have met pertinent standing requirements as a matter of fact and law. The Respondents do not contest the standing of the Petitioners. Background and Purpose of the Project The purpose of the proposed landfill facility is to address the solid waste disposal needs of the City of Jacksonville and Duval County (the City). The City currently disposes of solid waste at two landfills. One is on the east side of Jacksonville on Gervin Road, and the other is located in the north area of Jacksonville on Island Road. The presently used, east landfill is an unlined landfill currently operated pursuant to a DER Consent Order, in connection with which closure of that landfill is planned. The north landfill consists of three unlined cells and one lined cell. The City currently has unused landfill capacity at these two landfills which will last approximately one more year, but has also sought approval for expansion of the north landfill which would provide about two more additional years of capacity, if approved. The proposed landfill project, if approved, constructed and operated, would meet these solid waste disposal needs for approximately 20 to 25 years. The project at hand began when the City issued a Request For Proposal for private companies to submit bids to the City for construction of additional landfill capacity somewhere to the northwest of Jacksonville in Duval County. Two companies that met qualifying requirements submitted proposals in response to the request for proposals. Trail Ridge was one of those two qualifying bidders. The City selected the Applicant for contract award and then entered into a contract. The Applicant has an option to purchase the proposed landfill site from Gilman Timber and Land Company (Gilman, Gilman Paper Company). After issuance of the permits to the Applicant, the option would be exercised. Thereafter the property would be immediately conveyed to the City from the Applicant. Thus the site of the proposed facility will ultimately be owned and controlled by the City, although the Applicant will operate the landfill under its contract with the City. Gilman presently uses the 1,288 acre site and several thousand surrounding acres for growing timber, principally pine trees, in a pine plantation-type operation grown for use as pulp wood. Much of the site and surrounding Gilman land is characterized by pine trees grown to an age of 20 years or less and then harvested. A great deal of the site property has recently been cut, chopped, plowed re-bedded and re-planted with pine trees. Although some of the site is characterized by mature timber, much of the timber has been recently planted or is otherwise timber not yet mature enough for harvest. The option agreement provides that Trail Ridge will purchase the property from Gilman for $10,000 per acre. The City will then purchase the 1,288 acres from the Applicant for $2,600 per acre, which the Applicant maintains is the current, fair-market-value for the land as it is currently used as pine plantation for growing pulp wood. These terms and conditions are a part of the City's Request For Proposals. In addition to paying the Applicant $2,600 per acre for the 1,288 acre site, the City will pay the Applicant a fee over the life of the operation of the proposed landfill. The fee, amortized over the 20- year span of the agreement, will make up the difference between the Applicant's $10,000 per acre purchase price paid to Gilman and the City's $2,600 per acre initial purchase price paid to the Applicant. The City will thus ultimately re- pay Trail Ridge the $10,000 per acre for the purchase price for the property. The Applicant corporation will operate the landfill over its entire useful life and then close it. Thus, the Applicant's own figures show the land is valued at $3,348,800. The record does not reflect the reason for the purchase price paid to Gilman being $12,880,000, of which the City will repay $9,000,000 to the Applicant in the form of the operation fee, over and above the initial payment to the Applicant of $3,348,800. In any event, the utilities payment to the Applicant of the $12,880,000 for the land and the operation of the landfill only represents the recompense to the Applicant for the purchase funds expended for it to buy the site from Gilman. Additionally, the Applicant, through its option agreement with Gilman, is required to pay Gilman a $60,000 per month option fee. $15,000 per month of that must be paid during the pendency of the option, with the remainder of the $45,000 monthly fees due upon closing of the purchase. The portion of the operation fee paid by the City over and above the $2,600 per acre initial purchase price, attributable to the land appraisal itself, will be paid by the City on the basis of a certain dollar fee-per-ton of solid waste handled and disposed of in the landfill by the Applicant. Testimony indicates this will be approximately $8.00-$15.09 per ton, although the evidence as to which amount is indefinite. The testimony of Applicant's witness Allen, in any event, references these amounts as applicable to the City's solid waste "stream" handled by Trail Ridge at the proposed facility. Its contact with the City assures the Applicant of a minimum of 569,000 tons of waste per year to which the fee would apply. The City currently generates approximately 750,000 tons of waste per year. There is no evidence of what the construction or other capital costs or operation expenses related to the proposed facility will be over the useful life of the facility for the Applicant or related corporations. Site and Design The proposed site is 1,288 acres in size, located in southwestern Duval County, approximately three miles south of Interstate Highway 10, 1.5 miles west of U.S. Highway 301 and 1.14 miles north of State Road 228. The site is located in a sparsely populated area approximately 4 to 6 miles from the City of Baldwin, 5 miles from the City of Macclenny and 2 miles from the City of Maxville. A substantial portion of the proposed site will be left undisturbed and used as a buffer area to separate it from any surrounding development. There are water supply wells within fairly close proximity to the site. One well is within a mile of the site and three are approximately 1.5 miles southeast of the site. The proposed facility will include both a Class I and Class III solid waste disposal area. The Class I area will be approximately 148 acres in size, and the Class III area, 28 acres. The Class III disposal area will only be used for non- household refuse such as construction debris, tree and shrubbery clippings and the like, which will not generate deleterious substances in liquid or gaseous form, as will the Class I landfill. The remainder of the 1,288 acres will be used for buffer zones, dirt borrow areas, storm water management facilities and ancillary facilities necessary to the day to day operation of the landfill. No part of the Class III disposal area will be located within 200 feet of jurisdictional wetlands, which are the closest bodies of water. The project will be located on "Trail Ridge," which is a relatively elevated geographic feature, extending generally in a north-south direction in western Duval County. Geologically, it is an ancient sand dune. There is a substantial decline in elevation of this portion of the ridge from west to east, which produces surface water drainage patterns in a west to east direction at the site, also accompanied by surface water drainage patterns in a southerly- northerly direction into wetlands which occur on the south and north verge of the site, because the site is a prong or easterly extension of Trail Ridge lying between wetlands which occur on the northerly, southerly and easterly boundaries of the Class I disposal site. The 1,288 acres, including the landfill sites themselves, have been used for silvi-culture practices since 1948 or earlier, and are currently managed primarily as a slash pine plantation grown for pulp wood purposes. The present owner of the site, Gilman Paper Company, plans to continue this use of the site should the landfill project not be approved and constructed. Since 1948, the entire site, including much of the wetlands thereon, have been logged, some portions of it as many as three times. The silvi-culture practices at the site include clear- cutting, chopping, burning, harrowing, tilling and bedding of the soil, and planting of pine trees. The pine trees are grown to be harvested on a 20-year cycle or less. Due to these intensive silvi-cultural practices, the natural conditions of the site have been significantly altered and much natural vegetation, such as bottom-land hardwoods, has been replaced by planted pine trees. The area has been extensively ditched for drainage purposes and logging roads have been constructed throughout the site. The design of the Class I disposal area of the landfill includes three major components: a liner system, which includes a permanent leachate collection and removal system, a cap and closure system and a gas control system. The Class I disposal area is designed to be 140 feet high when the landfill is completed and closed in approximately 20-25 years. It will have typical landfill refuse "lifts," of approximately 8 to 12 feet in height, with a side slope grade of three horizontal feet to one vertical foot of elevation gain. This is the maximum grade steepness allowed by DER rules. The Class III landfill, in which no household garbage, chemicals, oils and greases or other deleterious substances will be deposited, will include only a cap and closure system. In order to carry out Department regulatory requirements designed to contain waste permanently in a well- defined area and to minimize the amount of leachate produced within a landfill, as well as to collect and remove leachate that is produced, the landfill will have, in effect, a double liner system. The liner system is designed to contain the leachate produced when rain water contacts waste in the landfill and to cause that leachate to percolate vertically downward through the landfill, capture it in the liner system, prevent it from contacting groundwater and to remove it and treat it. Leachate from the Class I disposal area will be contained by the liner system and removed by a leachate collection and removal system. The liner system, starting from the bottom and proceeding upward, will consist of a 6 inch thick layer of compacted, subgrade soil. Over that layer, a prefabricated "bentonite" clay-like material will be deposited. Directly over the bentonite layer will be a high density polyethylene liner (the secondary liner) called a "geomembrane." The bentonite material has the characteristic of swelling when contacted by a liquid so that, if the geomembrane leaks, the bentonite will swell and plug the hole in the liner above it. On top of the bentonite layer and the geomembrane layer, is a synthetic drainage material called "geonet." Geonet has a very high transmissivity rate and therefore has great capacity to conduct water within its own plane. Lying immediately above the geonet material is a geotextile filter designed to keep sand out of the pores or interstices of the geonet. Above that geotextile filter is a second geomembrane (the primary liner). Above the second geomembrane is another geonet layer, as well as another geotextile filter layer. Then to protect the entire liner system from damage, two feet of clean sand will be placed above the uppermost geotextile filter layer. The two feet of sand also acts as a drainage layer for the uppermost geonet. The leachate that percolates down through the waste and the sand will contact the geonet and then be carried down slope on top of the geomembrane. This constitutes the leachate collection system. The bottom geonet is called the "leak detection system." This is because, if a hole develops in the primary liner, any leachate coming through the hole will be quickly drained away through the bottom geonet. The bottom geonet thus operates as a backup leachate collection system, since any leachate reaching the bottom geonet will also be discharged into the leachate removal system. If a leak should develop in the secondary liner, the bentonite material would quickly plug the leak, swelling and absorbing that liquid. The Petitioners have stipulated that the Applicant has proposed a liner system and leachate collection system for the Class I disposal area which meets all criteria of Chapter 17-701, Florida Administrative Code, except as to the requirements of Rule 17-701.050(5)(c), (e)3. and 4. and (f)3., Florida Administrative Code. The Applicant demonstrated that the liner system and leachate collection system will meet the criteria of Rule 17- 701.050(5)(c), Florida Administrative Code. The liner system will be installed in accordance with a quality assurance plan. A specific condition already agreed upon will require the Applicant to submit for approval a revised quality control and assurance plan for installing the Class I synthetic liner system, after selection of the liner manufacturer and prior to the liner's installation. The liner system is designed so that it will be protected from puncture by waste materials or landfill operation equipment. In addition to the two feet of sand placed on top of the entire liner system to protect it, when initial waste disposal begins, the first lift of waste across the entire area of the liner system, as it is installed in phases, will be composed of 6-8 feet of "select waste" to protect the liner from puncture. Select waste is waste containing no pipes, roots or other potentially puncturing objects which could penetrate the sand layer to damage the liner system. A quality assurance engineer will be on site full-time supervising the initial placement of the select waste until that phase of the landfill operation is completed. A grant of the permit should be so conditioned. The Applicant has established that the liner system and leachate collection system will meet the criteria of Rule 17-701.050(5)(e), Florida Administrative Code. The leachate depth on top of the primary and secondary liners will not exceed a foot because the geonet has the capacity to quickly remove leachate from the liner. The actual hydraulic head of leachate on the primary liner will be only approximately 1/4 inch. The depth on the secondary liner was shown to be even less. The liner system and leachate collection system will meet the criteria of Rule 17-701.050(5)(e)3. and (f)3., Florida Administrative Code. The design of the collection system, including the geotextile filter, will prevent clogging of the system throughout the active life and closure period of the landfill, primarily by placing a gravel aggregate around the collection pipe so as to prevent debris from entering the system. A pilot line will also be installed in each collection pipe to facilitate access for mechanical cleaning, should it be necessary. In the unlikely event of an obstruction in the system, the leachate would simply bypass that area and continue down-grade to the next downstream leachate collection pipe and be removed from the landfill for treatment by that means. The liner system and leachate collection system will also meet the criteria of Rule 17-701.050(5)(e)4., Florida Administrative Code. The leachate collected will be carried downhill to pipes at the east end of the landfill. The leachate will then be pumped from the pipes into storage tanks. Trucks will then be filled with leachate to be transported to the City's Buckman Regional Wastewater Treatment Plant, owned and operated by the City, for treatment and disposal. Unrefuted evidence shows that this plant has adequate capacity and treatment capability to safely treat and handle the leachate. The truck loading areas will be equipped with berms and other means of protecting the surrounding wetlands, surface and groundwaters from leachate spills during the truck filling process. The Applicant's evidence does not demonstrate, however, that the tanks themselves and the area surrounding them will have protective measures for containing leachate spills. In order to comply with the above rule, the totality of the evidence concerning the leachate collection, disposal system and treatment method demonstrates that the tanks should be accompanied by a surrounding containment system (walls or berms) which will have the capability of containing the entire capacity of a tank should failure of a leachate collection tank or related piping or valving occur. Any grant of the permit should be so conditioned. The Petitioners have stipulated, and the Department agrees, that the Class III disposal area is exempt from the liner system and leachate collection system requirements of the above-cited rule provisions. Covering and Closure System Both the Class I and Class III landfills are designed with a composite soil covering system to minimize the amount of rainfall which can come into contact with the solid waste so as to minimize the creation of leachate. During the day to day landfill operations, a 6 inch initial cover will be applied to enclose each Class I landfill disposal cell on a daily basis, except for the working face itself, where waste is currently being deposited. The working face may be left uncovered, so long as solid waste is scheduled to be placed on it within an 18 hour period. A 6 inch initial cover will also be applied once every week to enclose each Class III landfill disposal cell. Thereafter, an intermediate cover of one foot of compacted earth will be applied on top of the initial cover within seven days of initial completion, if a final cover or additional lift on top of that completed cell is not to be applied within 180 days of cell completion. The initial cover will consist of sandy soil, over which will come the intermediate cover of one foot of compacted earth. The final cover will be applied to those portions of the landfill which have been filled with waste to the extent of designed dimensions at the time those portions have been filled. The final cover, to be placed on the sides of the landfill and ultimately upon the top at the end of its useful life, will be placed on top of the 12 inches of intermediate soil layer and will consist of 12 inches of compacted clay with a permeability of 1 X 10/-7 cm/sec. Next will come a layer of 12 inches of compacted soil and then a final layer of 12 inches of top soil, upon which the Applicant will plant grass for erosion control. Erosion of the cover layers on the side slopes is designed to be minimized by closing areas of the landfill as they are filled, an operational procedure commonly referred to as "close as you go." The final cover layers placed on the landfill outside of the clay cap are designed to allow the establishment of a planted grass cover as soon as possible to minimize erosion of the cover material and the side slopes. In addition, the intermediate cover placed on top of and between each cell, beneath the clay layer surrounding the outside perimeter of the landfill, has a high permeability, thereby acting as a drainage layer to direct rainfall and leachate vertically downward to the leachate collection system, as well as to collect runoff so as to retard erosion. Erosion is also retarded, as is the runoff of storm water/leachate over the side slopes of the landfill, by containing storm water which comes into contact with the working face of the landfill cells. This will be accomplished by minimizing the size of the working face to approximately 42 feet width. This will serve to reduce the potential for storm water to contact waste. Additionally, berms will be constructed around the working faces of each active cell which will cause any runoff or storm water which gets inside the working face of the cell to remain there and to percolate through the land fill to eventually be collected as leachate by the collection system. If enough rain falls on the working face of a cell to cause an overflow of storm water over the berms, additional berms placed on the interior slopes of the landfill will catch the overflow and divert it back through the landfill and the leachate collection system. The Applicant contends that normal maintenance equipment and personnel will be able to maintain the exterior side slopes of the landfill and thus minimize erosion. However, if erosion should become a problem, the Applicant proposes to install interceptor berms constructed on the side slopes, accompanied by various geotextural fabrics or synthetic materials proposed to be imbedded on the side slopes to help anchor the interceptor berms. These berms, however, have been demonstrated by Petitioner's witness, Mr. Peavy, to be inadequate to retard erosion. In fact, they may promote erosion because they would be insufficiently anchored to the side slope (as designed with 3:1 slope) and the downhill slope of the berms themselves is considerably steeper than a 3:1 ratio, which will actually promote erosion. The erosion problem will be discussed in further detail infra, but the proposed "optional" berm system, consisting of two proposed berms down the length of the 450 foot side slope will have to be redesigned in order to serve the purpose of retarding side slope erosion. The cap or cover for the exterior side slopes of the landfill will consist of a relatively impermeable clay layer overlain by a sand layer, as well as a top soil layer. Mr. Lithman, an expert in geotechnical engineering testifying for the Applicant, established that as a result of the side slope stability analysis he conducted of the clay layer for the Class I disposal area, that the clay layer would be stable, with a safety factor of 2.9-3, which is more than adequate for a slope as designed for the Class I disposal area (3:1). Mr. Evander Peavy, testifying for the Petitioners and accepted as an expert witness in the fields of civil engineering, soil mechanics, surface water hydrology and hydraulics, agreed that there was an adequate safety factor in the clay cap layer itself and that no plane of failure would likely occur in that layer. The problem, however, lies in the sand layer immediately predetermined or potential plane of failure will occur at the interface between the sand layer and clay layer. This is where the side slope of the landfill is most likely to fail. Failure means that the weight of the sand and soil layers on the outside of the clay layer would exceed the resisting forces, holding them back on the slope of the landfill, which would result in a deformation, slumping or break in the sand layer. If this slumping or break occurs in the sand layer and is not immediately repaired, rain water can erode the clay layer, which is highly erodible if exposed to rainfall. If not redressed soon, this could result in exposure of the waste of the landfill to rain water with the result that leachate could seep out of the side slopes of the landfill and enter surface waters of the State through the functioning of the storm water system. The most likely layers a civil engineer would analyze to determine the stability of the side slope would be the sand and soil layers above the clay layer because they are the weaker layers in terms of adhesion, shearing and resistance to downward movement under stress. However, Mr. Lithman, Trail Ridge's expert who conducted a side-slope stability analysis, only analyzed failure in the clay layer initially, until he was called on rebuttal to address findings of Mr. Peavy. The DER rule provision that allows 3:1 ratio side slopes for the sides of such landfills only serves as a guideline or maximum steepness criteria for design engineers. It does not relieve an engineer from analyzing slope stability in accord with good engineering practices. Analyzing side slope stability must be done in terms of establishing "safety factors." An acceptable safety factor for a landfill is 1.5 because, if failure occurs, solid waste can quickly be uncovered which can cause leachate contamination to surface waters of the State. A safety factor of 1.5 is the commonly accepted factor for earthen dam design because of the risks posed by failure of such slopes or embankments. Mr. Peavy is extensively experienced in the design of earthen dams and similar earth works, including extensive analysis of slope constituents and design for stability under shear forces and other failure-inducing factors, as well as for resistance to erosive forces. He was engaged in such phases of engineering work for approximately 26 years, during which period he designed and oversaw construction of numerous dams, revetments and other earthen embankments and works of many types. Because of this, and because of the commonly accepted engineering methods and calculations he used in analyzing the stability and integrity of the side slopes of the landfill, involving plane of failure analysis and erosion damage analysis, his testimony is credited over that of the other witnesses testifying on the subject matters involving side slope integrity of the landfill. Because of this, a safety factor was established for the side slopes of the landfill, for the sand and soil layers of 1.5. Safety factors of 1.25 are indeed commonly used for highway embankments, but highway embankments are not designed with predetermined or potential planes of failure, such as is involved at this landfill (as presently designed) between the sand-soil layers and the clay layer. Trail Ridge's expert witness in this area, Mr. Lithman, had testified that a safety factor of 1.25 would be adequate because it was typical of DOT earthen embankments for roadways. Mr. Niehoff testified that a 1.3 safety factor was sufficient. In fact, however, Mr. Peavy, testifying for the Petitioners, calculated the safety factor of the side slopes of the landfill to actually be 0.85, using his initial assumption of a weight for a cubic foot of the sand-soil layer of approximately 100 pounds. Mr. Niehoff testifying for Trail Ridge found no basic fault with Mr. Peavy's analysis of the safety factor and alleged that his analysis was done with accepted engineering procedures, but only with use of slightly different assumptions. He testified that if he had used the same assumptions as Mr. Peavy, he would have reached the same conclusions. Mr. Peavy also calculated his safety factor again by employing the same equation used by Trail Ridge's expert, Mr. Lithman, and assumed instead that the unit of sand-soil layers was 125 pounds per cubic foot, as did Mr. Lithman. This assumption coupled with the internal angle of friction of 35 degrees used by Mr. Peavy, which was shown to be a conservative assumption, resulted in a calculated safety factor of 1.05, which is still unacceptable, even under Mr. Lithman's analysis, because Mr. Lithman opined that the safety factor should be 1.25. Using Mr. Peavy's equation, but his own assumptions as to angle of friction and weight per cubic foot of the sand-soil layer, Mr. Niehoff, testifying for the Applicant, calculated a safety factor of 1.3. This safety factor also is unacceptable because it is less than the 1.5 safety factor established as proper by Mr. Peavy's testimony and, indeed, if Mr. Lithman's safety factor of 1.25 could be deemed acceptable, the 1.3 figure would result only in a marginal safety factor at best. The major difference between the safety factor calculations of Mr. Peavy and Mr. Niehoff is that Mr. Peavy assumed that the sand-soil layer above the clay layer would be saturated, while Mr. Niehoff assumed that only 19 inches of the 24 inch sand-soil cover layer would be saturated by rainfall. However, Trail Ridge's own experts, Mr. Lithman and Mr. Niehoff, offered conflicting testimony between themselves on the amount of saturation to be expected. Like Mr. Peavy, Mr. Lithman did his analysis on the basis that the sand-soil layers would be saturated completely, contrary to Mr. Niehoff's subsequent testimony that this would not happen beyond a 19 inch depth in the layer. Mr. Niehoff's conclusions that the sand-soil layer would not become saturated or valid only if there is a complete grass cover over the entire side slopes of the landfill. He admitted that if the sand-soil layer became saturated, the safety factor would only be 1.1 or less according to his own calculations. Trail Ridge offered no preponderant evidence to establish that an adequate grass cover could be established so as to prevent saturation of the sand-soil layer during the design 25-year, 24-hour storm event (approximately 8- 9 inches rainfall in 24 hours). The evidence indicates, rather, that establishing and maintaining a grass cover on the side slopes of the landfill will be very difficult to achieve on a uniform, completely grassed basis. This is because of erosion and because of the damage by equipment necessary to repeatedly repair erosion damage and because of the fact that much of the side slopes of the landfill will be, in effect, under construction until the landfill is completely built out and completed at the end of approximately 20 years. Even if the lower several lifts of the landfill, when covered on the "cover as you go" basis can achieve them, more recently deposited, will not have a complete grass cover. Thus, there is a substantial likelihood of saturation of the sand-soil layer, during storm events of the type for which the landfill is designed. Further, the volume of water that would saturate into the sand-soil layer, even if the landfill was completely grassed, will still be sufficient to totally saturate the lower 90 feet of the landfill side slopes above the clay layer in the event of a 25-year, 24-hour storm event. If the sand-soil layers become saturated, sloughing or failure of those layers will occur at the toe of the landfill. If that occurs, then the clay layer, protective cap can be quickly eroded by subsequent rainfall and surface runoff. This will cause the waste within the landfill to be exposed to rainfall, generating leachate which can migrate to the surface of the landfill and thence to the storm water system and ultimately to the surface waters of the State. No provisions have been made in the design to remove water from the sand-soil layers once it reaches the area near the toe of the landfill to prevent sand-soil layer failure. The impermeability of the clay layer would prevent the rainfall from migrating through the clay layer and continuing to the interior bottom of the landfill to be collected properly as leachate because the clay layer properly should be an impermeable barrier to storm water. Thus, a saturated condition of the sand-soil layers would be most likely to cause their sloughing and failure near the toe of the landfill, with resulting damage by erosion or cracking to the clay layer with the effect of allowing leachate to escape to surface waters of the State. Although the Applicant's expert, Mr. Lithman, opined that side slope stability had not been a problem with the 3:1 ratio slopes at the City's Rosemary Hill Landfill, he admittedly was unaware of the height or length of the side slopes of that landfill. The longer the side slopes and the higher the landfill, the more likely it is that the sand-soil layers will become saturated and fail during design storm events or shortly thereafter, especially as the landfill, in its later years is built both longer and higher toward its final configuration. Further, Mr. Lithman and the Applicant's evidence does not reveal the composition of the side slopes of the Rosemary Hill Landfill, in terms of whether or not the clay and sand-soil layers designed in the proposed landfill are present. Due to the height of the proposed landfill, the lengths of its side slopes and the absence of design features such as terraces and benches, failure of the side slopes, especially in the later years of the landfill's life and, indeed, after closure (closed landfills can generate leachate) is likely to occur, based upon the facts established through Mr. Peavy's testimony. The likely side slope failure is a result of the design flaw and is not a problem which can be cured by normal operation and maintenance activities. Indeed those activities may aggravate the problem through their deleterious effect on the establishment of a uniform, complete grass cover. Because of the height of the proposed landfill, the length and slopes of its sides and the lack of design features such as benches or terraces, it is likely to experience significant side slope erosion due to storm water. The volume of rain water that would accumulate and flow down the sides of the landfill will achieve velocities which would destroy even a well established grass cover, especially in the later years of the landfill's life when the sides have reached significant length and height. Storm water would thus gain sufficient velocity to destroy a grass cover and to particularly attack those portions where the grass cover is incomplete, thinned or possessed of an insufficient root mat to hold the soil. Once erosion starts, small rills will form which will soon develop into deeper gullies, ultimately penetrating the sand-soil layer. It can then quickly erode away the resulting exposed clay cap layer, exposing the waste to storm water. Leachate could thus leak from the landfill. Because of the present design of the Class I landfill, the only way to repair erosion damage is to push material from the bottom with heavy machinery, such as bulldozers. These erosion maintenance activities themselves would prevent the establishment of a uniform solid grass cover. The presently operated East Landfill in Duval County exhibits both side slope failure and erosion damage due to rainfall on its 3:1 slopes, including damage to the grass cover. Erosion damage to the slope layers due to erosion maintenance activities of the type which would be necessary to repair damage at the proposed landfill has occurred. Both erosion and side slope failure will ultimately result in exposure of solid waste to rainfall runoff and assure side slope seepage of leachate. The material eroded or sloughed away from the side slopes can obstruct the drainage conveyance system surrounding the landfill, rendering the MSSW/storm water system inoperative. Because of the presently proposed design of the landfill, it would be impossible to effectively correct side slope erosion or failure, due especially to maintenance activities. Even if a uniform grass cover could be established in the last years of landfill operation and after closure, the great length and slope of sides of the landfill by that time would result in erosion even if the grass cover were initially uniform and solid on the entire slope of the landfill. A change in the design of the landfill, however, whereby 15 foot wide benches or terraces would be incorporated into the sides of the landfill every 20 or so vertical feet, would likely prevent the side slope erosion and failure established to be likely by Mr. Peavy. In fact, benches or terraces similar to those found to be required by Mr. Peavy have had to be recently installed at the East Landfill in Duval County in order to resolve side slope erosion and failure problems on those 3:1 slopes. The mere installation of interceptor berms, as depicted in TRL Exhibit 28, would not alleviate side slope failure and erosion problems, but rather would aggravate them and would reduce the safety factor of the side slopes to 0.5. Consequently, in order to grant the permit, it should be conditioned on the landfill being re-designed and constructed so as to incorporate benches or terraces at approximately 20 foot intervals on the slope of the landfill from bottom to top. Although this may potentially reduce the volume of space within the landfill, depending on how it is accomplished, it has been established that, without the use of the bench or terrace system, pollutant leachate cannot be reasonably assured to be prevented from entering State waters and wetlands. Leachate Control Leachate is any water coming in contact with solid waste. The chemical constituents of leachate which are present and will be present in the Duval County solid waste stream, to be disposed of at the proposed landfill, include chlorobenzene, volatile organics of various types, benzene, acetone, phenolic compounds, gasoline constituents, chloroform, methylethylketone, methylene chloride, toluene, xylene, ethylbenzene, total organic carbon, nitrogen, phosphorus and metals such as aluminum, chromium and zinc. Leachate thus contains toxic, hazardous and priority pollutants which will be disposed of in the landfill. The breakdown and degradation of solid waste can also generate additional toxic or hazardous compounds and substances. Leachate can potentially be discharged in a proposed landfill into groundwater and surface waters in a number of ways, including leakage from the bottom of the landfill liner into groundwaters, including into the Class I storm water pond and surface waters of the State through discharge from the groundwater into the storm water pond system. It could also be deposited into the storm water system through spillage of leachate where tanker trucks are loaded, through seepage of leachate through the side slopes of the proposed landfill by damage to the integrity of those side slopes as found above. The Petitioners maintain that side slope seepage of leachate will occur because the permeability of the intermediate cover layers surrounding the cells of the landfill is significantly less than the permeability of solid waste. This will have the result, according to Petitioners, that leachate will migrate horizontally through the intermediate cover layers to the sides of the landfill. Once there it arguably would migrate to the surface of the landfill side slopes through erosion of the outer cover, and fissures in the clay due to drying from exposure to the sun and through erosion. Additionally, the Petitioners maintain that leachate will migrate downward through the peripheral intermediate cover layer under the clay and contact the impermeable clay anchor cap, build up hydraulic head pressure and thus seep out through landfill sides near the toe of the landfill. The Petitioners maintain that Trail Ridge's policy and proposal to punch holes in the intermediate cover layers atop the cells of the landfill to encourage downward migration of leachate and discourage horizontal migration of leachate through the intermediate cover layers will be ineffective because the intermediate cover is more permeable than the solid waste itself so that punching holes in the intermediate cover to allow the leachate to migrate down through solid waste will actually not occur. Additionally the Petitioners contend that the filter system and the storm water pond will not treat the dissolved chemical components of the leachate specified in Petitioner's Exhibit 2 and that these dissolved components will move through the sand filters into waters of the State. Contrary to Petitioner's contentions, however, the Applicant has demonstrated that leachate will not avoid capture by the leachate collection system by seeping horizontally through the cover or cap and out the sides of the landfill, provided that the side slope failure and erosion prevention measures found to be necessary in the above Findings of Fact are instituted in the design, construction and operation of the landfill. The design of the cap and closure system is basically a side slope seepage prevention system, except for the absence of terraces or benches. The intermediate soil cover beneath the clay cap and surrounding each cell of the landfill acts as a drainage medium. It will channel any seepage of leachate from the cells of solid waste through the permeable, intermediate soil cover, generally in a downward direction, both in and between the cells of the landfill throughout its cross-section, as well as downward through the intermediate soil cover lining immediately beneath the clay cap around the periphery of the landfill. This system, if the above design deficiency is corrected, will tend to force the leachate downward into the collection system, as opposed to horizontally out the cover or the sides of the landfill. The reason this system will work in this manner is because the intermediate cover soil is more permeable than the solid waste itself. The permeability of the intermediate cover will promote vertical movement of the leachate because, as the leachate migrates across each cell, it will encounter the vertical, intermediate soil cover layer at the side of each cell and that will promote its moving downward toward the collection system. The water in the landfill will thus follow the path of least resistance, so that the vertical portions of the intermediate cover layers surrounding each cell and surrounding the sides of the landfill beneath the clay cap, coupled with the force of gravity, will provide a preferential path downward toward the leachate collection system. This finding includes consideration of the Petitioners' contention that leachate will migrate downward and contact the impermeable clay anchor cap and build up head pressure so that it will seep out of the sides at the toe of the landfill. The intermediate cover layer underlying the sides of the landfill beneath the clay anchor cap is connected with the leachate collection system underlying the bottom of the landfill. Thus, a continuous conduction of leachate down through the intermediate cover, permeable layer will allow the leachate to seep downward all the way to the leachate collection system rather than pooling behind the impermeable clay anchor cap. This condition will be enhanced by the fact that surrounding each cell is the approximately vertical, permeable intermediate cover layer, throughout the entire cross-section of the landfill, such that much of the leachate will migrate downward in the interior of the landfill. Because of the ready conductance of leachate in a downward direction by the intermediate cover layers, Trail Ridge's policy of punching holes in the intermediate cover layer on the top of each cell in order to seek to prevent side slope seepage of leachate will be ineffective because the intermediate cover is more permeable than the solid waste. Thus, this procedure is unnecessary and, in fact, could become counter-productive to the extent that punching holes in the intermediate cover would allow rain water mixed with leachate to contact more of the solid waste contents of the landfill as it migrates down through the interior of each solid waste cell. This would result in a more highly concentrated form of leachate, which could pose more deleterious threats to ground and surface waters should it escape to ground and surface waters. Therefore, any grant of the permit should be conditioned on a prohibition of the Applicant thus violating the integrity of the intermediate cover layer overlying each cell as the landfill is built up in lifts. Gas Control System The Class I disposal area is designed with a gas control system which will prevent explosions and fires caused by the accumulation of methane gas due to decomposition of the waste in the landfill. The gas control system will prevent damage to the vegetation on the final cover of the closed portions of the landfill or vegetation beyond the perimeter of the property. It will prevent objectionable odors off site. The Petitioners have stipulated that the Applicants' gas control system will be designed in accordance with Rule 17- 701.050(5)(j), Florida Administrative Code. Although the Petitioners presented testimony of various persons who live in close proximity to other landfills, which were at one time operated by Waste Management subsidiary companies, neither the persons who testified of odor problems at those landfills, nor other witnesses presented testimony to show whether any of the landfills utilized a gas control system or one of equivalent design to that proposed for the subject facility. No evidence was presented to support a finding that the proposed landfill facility would produce objectionable odors to any significant degree. The Petitioners have further stipulated that the Class III disposal area is exempt from the gas control system requirements set forth in Rule 17- 701.050(5)(i) and (j) and (6)(i), Florida Administrative Code, and the Department agrees. Hydrogeology and Ground Water Monitoring The Applicant filed as part of its application, and placed in evidence, a hydrogeological survey and groundwater monitoring plan, contained in TRL Exhibit 51. The hydrology of the proposed landfill site may fairly be characterized as complex because it contains many different features such as recharge and discharge areas, varying zones of conductivity, a sand component to the surficial aquifer as well as a rock aquifer component and multi-directional groundwater flows. Additionally, wetland systems occur down-gradient from the higher levels of the surficial aquifer on the north, east and south sides of the proposed Class I disposal area. From the surface grade down to a depth of approximately 100 feet lies the surficial aquifer, which primarily consists of a coarse sand medium. Lying below the sand aquifer is a confining unit (relatively impermeable) identified as the Hawthorn Group, which consists of denser marls, dolomites and silver clays. Beneath the Hawthorn layer, at a depth of approximately 300-400 feet, is the Floridan aquifer, which serves as the principal deep water supply source for this part of Florida. Additionally, immediately above the Hawthorn layer in the deep zone of the surficial aquifer, a "rock aquifer" exists under a portion of the landfill site, generally the eastern-most portion. It was not shown to be continuous throughout the site. The rock aquifer is connected to the sand surficial aquifer lying above it. Zones of varying higher and lower permeability occur at various places within the surficial aquifer. Generally, groundwater at the site flows down-gradient in an easterly direction, caused by rain or surface water recharging the surficial aquifer on the higher portions of Trail Ridge, including the western side of the landfill Class I disposal site. The surficial aquifer then discharges this groundwater to the land surface and the wetlands lying on the eastern side of the site. Additionally, some northward and southward flow of groundwater occurs from recharge areas to the wetlands lying on the northerly and southerly boundaries of the Class I disposal site in the wetlands. The specific condition 19 contained in the Department's Notice of Intent to issue permit and draft permit requires the Applicant to periodically (quarterly) sample monitoring wells to ensure that water quality standards are not exceeded at the boundary of a zone of discharge established by that specific condition and authorized by Rule 17-28.700(4)(a), Florida Administrative Code. A groundwater monitoring plan has been developed by the Applicant, with accompanying hydrogeological survey as mandated by Rule 17-28.700, Florida Administrative Code. The proposed groundwater monitoring system consists of 42 monitoring wells in and around the area of the proposed Class I and Class III landfill sites. The system is designed to monitor upgradient and downgradient flows in wells constructed to sample from the shallow and intermediate zone and from the deep zone (to some extent) on the east boundary of the Class I disposal site. Specific condition number 18 of the Notice of Intent to grant the permit and draft permit, to which the Applicant has agreed, requires that a detailed chemical characterization of a representative sample of leachate be performed, so as to allow for any necessary modifications to the list of chemical substances to be analyzed in water samples drawn from the monitoring wells on a quarterly basis. Although there are up-gradient monitoring wells for the shallow and intermediate portions of the surficial aquifer, there are no upgradient monitoring wells for the deep zone of the surficial aquifer. There are no upgradient monitoring wells on the west side of the landfill in the deep zone. The deep zone of the surficial aquifer is the zone between the intermediate zone and the top of the Hawthorn confining bed. The rock aquifer is present beneath the proposed landfill site and was encountered at well locations B-7, B-8, B-12 and B-14. That rock aquifer is hydrologically connected to and part of the deep zone, which is hydrogeologically connected throughout the site to the uppermost portions of the surficial aquifer lying beneath the landfill. The rock aquifer is a significant source of drinking water in Duval County and the surrounding northeast Florida area and is used as a supply source for domestic and commercial wells within one and one-half miles of the landfill Class I site. "Sinkers" are immiscible liquids contained in landfill leachate that are denser than water. When released from the landfill they would sink to the first low permeability unit in the surficial aquifer. This would be at the bottom of the surficial aquifer at the rock unit. Once they encountered a lower permeability unit or strata, sinkers would then move in a more lateral direction downgradient in undetermined directions. The silty clay layer depicted on Figure 9 of TRL Exhibit 51 would intercept those sinkers and cause them to tend to move in a direction toward the silty clay layer intercepted by well B-1. At that point the sinkers would then have a tendency to move in a north or south direction on top of the confining zone. The direction those sinkers would move, following a gradient, cannot be determined at present from the groundwater monitoring plan because no deep wells are proposed in either of those areas which could detect sinkers. The groundwater monitoring plan is thus not adequate for the deep zone or to detect pollutants that could migrate off site in the rock aquifer because there are no monitoring wells in the deep zone on the west, north and south sides of the Class I landfill area. Monitoring for sinker compounds in the deep zones is thus insufficient and water supply wells nearby in the deep zone would be at risk because there is no way to detect pollutants between those water supply wells and the source of the pollutants at the landfill. The groundwater monitoring plan is inadequate because there is insufficient information to determine the direction of water flow in the deep zone. Sufficient upgradient monitoring wells in the deep zone are necessary in order to determine the direction of water flow in the deep zone which will in turn indicate where additional deep zone monitoring wells should be located to detect contaminants migrating off site. Leachates also contain contaminant constituents or compounds called "floaters." Floaters are immiscible liquids which are lighter or less dense than water. They tend to float on top of the groundwater table. The hydrologic information depicted with the application and the Applicant's evidence is not sufficient to determine where floaters might migrate. The shallow monitoring wells referenced in TRL Exhibit 42 would not adequately detect floaters at or near the water table surface. Due to the lower lying stream or wetland systems on the north and south side of the Class I landfill on Trail Ridge, groundwater flows in the vicinity of those areas are likely moving northward and southward to some extent. Thus, TRL Exhibit 51, and particularly Figure 14 of that exhibit, is insufficient to support a determination of where monitoring wells should be located because it does not include the impact of the stream or wetland systems on the north and south sides of the landfill. Groundwater contours bend into the stream areas on the north and south sides of the landfill which would indicate groundwater flow to the south and the north instead of just from west to east. The general shape of these contour lines would resemble the contour lines depicted in Figure 16 of TRL Exhibit 51. These contour lines bend back to the east and the west on the north and south sides of the Class I landfill. Since there is groundwater flow to the north and to the south from the Class I landfill, intermediate and deep monitoring wells in addition to shallow wells, should be located along the west, north and south sides of the landfill. Because they are not in the groundwater monitoring plan thus far, the plan is inadequate. A grant of the permits should be conditioned on such additional wells being installed and made a part of the monitoring program, in accordance with the above findings. A zone of discharge for the proposed landfill has been established pursuant to Rule 17-28.700(4)(a)2., Florida Administrative Code, which is intended to extend vertically from the base of the surficial aquifer and horizontally 100 feet beyond the footprint of the landfill or to the compliance groundwater monitoring wells, whichever is less. (See pages 611- 618 of the transcript.) Therefore, even if the groundwater monitoring wells are closer than 100 feet to the footprint of the landfill, they are to be used for monitoring for compliance with applicable water quality standards, including the primary and secondary drinking water standards for G-II groundwater, as contained in Rules 17-550.310 and 17-550.320, Florida Administrative Code. The Applicant has agreed to this location of the wells, their spatial relationship to the footprint of the landfill, to the zone of discharge and to their use for compliance purposes. Storm Water and Surface Water Management System The Applicant proposes as part of its permit application a storm water discharge and surface water management system. The application for permitting for that system was submitted to the DER which reviewed it using the Water Management District's permitting criteria set forth in Chapters 40C-4 and 40C- 42, Florida Administrative Code. Pursuant to its independent permitting authority set forth in Section 373.413, Florida Statutes, the DER noticed its intent to issue the MSSW permit to the Applicant, based upon its opinion that the project will comply with applicable rules. The proposed storm water discharge/surface water management system (MSSW system) will utilize roadside swales, perimeter ditches, catch basins, culverts, detention ponds and pump stations to manage storm water in compliance with Chapters 17-25, 40C-4 and 40C-42, Florida Administrative Code. The solid waste disposal areas will operate as watersheds, routing storm water in to the MSSW system. The retention areas have been designed to handle the retention treatment requirements of a 25-year, 24-hour "design storm" runoff, resulting from approximately eight to nine inches of rainfall. The system is comprised of three independent parts; the Class I landfill system, the Class III landfill system and the separate roadway surface water management system. The Class I system will use temporary berms to intercept storm water runoff from the cap cover system of the landfill, on top of the solid waste disposal area. These top berms will divert the storm water runoff to regularly spaced pipes which will convey the storm water into the perimeter swale located at the foot of the landfill side slopes. The runoff will then be diverted through a culvert into a concrete-lined perimeter ditch which will convey it to the pond. The top berms of the landfill also operate as erosion control features, capturing and channelling some storm water runoff away from the side slopes of the landfill, thereby assisting in erosion control. The Class I retention pond covers an area of approximately ten acres and will contain approximately 43 million gallons of water at design water levels. The peak flow of storm water runoff from a design 25-year, 24-hour storm can be accumulated and released at predetermined rates. The runoff from the first one inch of rainfall in a 72 hour period is retained and stored in the pond. No discharge will be allowed to the pond's outfall system, rather all the outfall from the runoff from the first inch of rainfall will be routed through the sand filter system prior to discharge. When storm water runoff enters the pond, it will mix with the water already in the pond and become part of the total water column. When a rainfall event then produces greater than one inch of rainfall, some water will have to be discharged from the pond by passing it through the sand filter and then discharging through the outfall structure. The water discharged is water which was already resident in the pond before the rainfall event, mixed with the current rainfall runoff from that hypothetical rainfall event. The volume of the pond is so large that storm water runoff will constitute a very small fraction of the actual water volume in the pond at any given time. On the average, it will take 33 days for a given molecule of storm water runoff to travel through the pond, the sand filter and then be discharged through the outfall system. the sand filter system operates on a water level trigger device involving floats in wet wells attached to electrical switching mechanisms. When a certain water elevation in the wet wells, reflective of the elevation in the pond, is reached, the pumps automatically start and pump water into the filter chambers, causing the water to flow over a filtering sand. The filter will be maintained periodically by lowering of the water level to permit removal and replacement of the top six inches of sand in the filter. The Class III storm water pond is similar in design to the Class I pond except that it will not use a top berm. Rather, a perimeter swale will function similarly to the Class I landfill top berm, intercepting storm water runoff from the top and side slopes of the Class III landfill. The Class III storm water pond is equipped with the same type of filtration and pumping system as the Class I pond. The Class III system is designed also to retain the first inch of storm water runoff from a "design storm" rainfall in a 72 hour period. All of that runoff from the first inch of rainfall will likewise be routed through sand filtering prior to discharge. The roadway storm water system utilizes grassed roadside swales to act as a retention structure to filter the storm water runoff. The runoff retained in the swales will be conveyed by pipe to a smaller detention and dispersion pond located between the Class I and Class III disposal areas and built with the same design constraints as the Class I pond. The roadway system will not use a pumping system to operate, but rather discharge will occur through natural action of gravity through the dispersion pond. The filtered storm water runoff from the Class I and Class III disposal areas will be discharged into adjacent wetlands after it leaves the ponds. The discharge will be performed by a wetland irrigation system. The irrigation system will discharge the filtered storm water through conveyance pipes to the wetland boundaries. There a series of perforated pipes will extend outward from the conveyance pipes themselves and serve as a means of gradually releasing the filtered storm water into the wet land area as a means of wetland replenishment and mitigation. Concerning the issue of surface water quality, it has been established that the sand filtering systems on the Class I and Class III storm water ponds are capable of providing 100 percent of the treatment required by State water quality standards when considered in conjunction with the treatment capability of the ponds themselves as natural lake systems. The individual sand filters each provide twice the capacity for treatment necessary which equates to a safety factor of 2. With both filters operating, there is a combined safety factor of 4. Although the Class I and Class III retention ponds are designed with filtration systems, the primary pollution removal system will be the ponds themselves operating as natural lakes. Once storm water enters the ponds, the average residence time is adequate to allow the biological processes of uptake and assimilation to function to remove the bulk of the pollutants, including those derived from any spillage of leachate into the storm water management system and ultimately deposited into the ponds. The volatile organic compounds which can occur in the leachate can largely be removed simply by the process of evaporation, due to the adequate retention time of any leachate- containing storm water which reaches the ponds. It has been established that, due to the storm water pond's natural treatment mechanisms, especially the long retention time, the size and volume of the ponds, as well as the vegetated sides of the ponds, that, considering also the operation of the filter system, the water discharging from the Class I and Class III storm water treatment facility will have very low concentrations of total nitrogen, phosphorous, biochemical oxygen demand (BOD), suspended solids and heavy metals. The Applicant's expert witness on water quality and water chemistry, Dr. Harper, also assumed that the Class I retention pond would have some leachate migration into the pond through groundwater influx. Worst case scenarios were used to estimate this possible influx and the results established a maximum deposition of 2.46 gallons of leachate into the pond over a 65 day period. This amount would be diluted by a factor of 14 million solely by new storm water runoff and rain normally expected under average rainfall conditions during such a 65 day period, without even considering the considerable dilution by the existing water volume of approximately 43 million gallons already in the pond in such a period. Dr. Harper's testimony is accepted. It is unlikely that any runoff can enter the retention pond on one day and then exit within one day's time through the outfall overflow device. Even assuming that runoff occurs in excess of the designed one inch, that runoff would dilute with the large volume of water already present in the storm water pond. Thus, the new storm water would be mixed, diluted and subject to natural biological processes and the process of evaporation (of volatile organic compounds), operative in the pond before it can be released through the outfall structure. The runoff will enter the pond at the west end and discharge through the opposite or east end of the pond. The majority of water caused to be discharged through the outfall because of a larger-than-design storm event runoff would thus actually be water already present in the pond as opposed to incoming runoff from the recent rain event being deposited in the west end of the pond where the storm water system discharges from the Class I disposal area. Even a rainfall event producing twice the designed-for volume would produce no effect on the water quality of the discharge. Further, along with the filter systems and the natural processes of biological uptake, assimilation as well as evaporation in the natural lake system which would operate in the pond, the side slopes of both ponds will be vegetated so as to further assist in uptake and removal of any pollutants present in the runoff, further mitigating any potential for water quality impacts. It has been established that the surface water management system is designed to segregate surface water from leachate by minimizing the size of the landfill working face and reducing the potential for storm water to contact waste and become leachate. Further, a berm will be constructed around each working face which will encompass the entire active cell of the landfill, causing any runoff water entering the working face to remain there and percolate through the landfill to the leachate collection system, rather than entering the storm water system. If a severe rainfall event could cause leachate to overflow those berms, the design includes additional berms on the interior slopes of the landfill to catch that overflow and divert it back through the leachate collection system. The berms are relocated as the working face of the landfill changes, so they will continue to fulfill these functions on an ongoing basis. In terms of a worst case event, the Applicant has also established that the estimated impact of runoff from approximately one acre of exposed solid waste entering the retention pond would still cause no water quality impacts. Further assurance of leachate segregation from surface waters is provided in a spillage control plan which would be activated in the event of leachate spillage from a tanker truck. In connection with this, any grant of the permit should be conditioned upon an adequate berm system surrounding the tank truck leachate filling device in order to contain any such spill to prevent the leachate from entering the storm water retention facilities and surface waters. Such a system should also be characterized by (and the permit conditioned upon) retention berms or other forms of containment being placed around each leachate storage tank, designed to retain the full capacity of such a leachate storage tank in the event of a catastrophic tank valve, piping or other failure. It has been demonstrated, moreover, that if the leachate-storm water separation and control system were to fail in some way so that leachate directly entered the retention pond, the volume of leachate entering the pond would have to exceed approximately 150,000 gallons to cause any water quality violation in the storm water retention pond, even assuming the high concentration of contaminants in the leachate envisioned in the opinion of Dr. Robert Livingston, the Petitioners' aquatic ecologist and toxicologist. He raised concerns that pollution of the head water systems of the St. Johns and St. Mary's Rivers might result from the operation of the project. The Applicant has rebutted the concerns expressed by Dr. Livingston and Dr. Parks and established reasonable assurances that toxins and contaminants occurring in leachate will not deposit in surface waters of the State in any significant or rule-violative amounts for the reasons expressed in the above Findings of Fact. Draw-Down Effects The Petitioners contend that there will be a draw-down of groundwater levels in surrounding wetlands caused by these storm water ponds and associated pumping, in violation of the Water Management District's rules and policy embodied in MSSW Handbook Section 10.6.3. This section presumes an adverse impact on wetlands will result if the system causes the groundwater table to be lowered more than five feet lower than the average dry season low water table. The Petitioners' expert in this area, Dr. Motz, estimated that a measurable draw-down of groundwater of one to two feet in the wetlands water table would extend outward as far as maybe 1,000 feet in all directions from each of the storm water ponds. Dr. Motz used a large error convergence factor in his calculations, however, and also used a model for a confined aquifer, which was not shown to exist at the subject site. He did not use a model which should be appropriate for unconfined or semiconfined aquifers which the evidence reveals is the more appropriate hydrogeology which would be employed in groundwater modeling for the subject site. Dr. Motz' use of a large error convergence factor can potentially result in an answer which is far from the actual appropriate draw-down figure. Numerical models are approximations of reality and the smaller the error convergence factor, then the closer to the real number of the cone of depression, or draw-down level, the model will give. Consequently, the use of an analytical groundwater, cone of depression model was shown by the Applicants' witnesses to give a more accurate result, especially in view of the large error convergence factor employed by Dr. Motz in his numerical model. It was not shown that Dr. Motz had actually "calibrated" the groundwater model he employed. The Applicants' hydrogeology expert, Don Miller, used three analytical and two empirical methods to determine radius of influence or draw-down from the storm water ponds and calibrated the models he used. Validating the data or calibrating the model is a way of making sure the model actually represents the situation intended. Calibration is performed in this instance by inputting some data and then seeing if the model itself could accurately predict the remainder of the data of interest. Using these various methods, Dr. Miller arrived at a range of radius of influence likely to occur from the Class I storm water pond of 167 feet to 184 feet at the western end of the pond and approximately 40 feet at the eastern end. The maximum radius of influence for the Class III storm water pond was shown to be approximately 160 feet at the western end and 0 at the northeastern corner. The other hydrogeology expert for the Applicant, Dr. Leve, performed a separate analytical analysis of draw-down using the Southwest Florida Water Management District's "KOCH" model to produce a projected radius of influence of approximately 167 feet, which is comparable to the projections of Dr. Miller. In conjunction with this, it was shown that Dr. Motz' use of a small value for groundwater infiltration and the large error convergence factor served to increase his predicted radius of influence in an inaccurate way. Dr. Motz also used a higher value for transmissivity or hydraulic conductivity ("K"). The Applicant's experts relied on the average of the actual permeability test results obtained for the site. A different figure for transmissivity or hydraulic conductivity results from Dr. Motz taking into account two test wells in which hydraulic conductivity could not be measured because the well water level rose too quickly to obtain a measurement. Consequently, he predicted or assumed that that factor might affect the hydraulic conductivity at the site by a whole order of magnitude, which resulted in his 1,000 foot prediction for draw-down cone of influence. The problem here is that the evidence does not demonstrate clearly that this much- greater hydraulic conductivity factor with regard to these two wells, which was an isolated incident compared to all other wells tested, is not some mechanical or human error in the installation or evaluation of the wells. Further, even if one predicts the hydraulic conductivity of the unmeasured, apparently highly conductive wells at the geometric mean of all the hydraulic conductivity measurements for the water table zone (except for the marl zone) at 3.0 X 10 cm/sec or three times greater than the value used by the Applicant, it would result in a cone of influence of 265 feet instead of 184 feet. If one also assumed a value for the two ignored wells, as data points, by assuming that they had a hydraulic conductivity value of 3.5 x 10/-3 cm/sec, the highest reported well conductivity value, and then employed that in the empirical formula used by Donald Miller, it would still not greatly exceed the 265 foot cone of depression number. No evidence was adduced to demonstrate that a cone of depression of that magnitude would have any adverse affect on the wetlands, especially in view of the recharging of the wetlands through the storm water pumping and irrigation system. In summary, the totality of the evidence in the Applicant's case, especially on rebuttal, demonstrates that Dr. Motz' methodology significantly overestimated the radius of influence for draw-down at both storm water ponds. The parties agree that the maximum draw-down of 16 feet would occur within the Class I storm water pond, where a "seepage face" would be formed where the pond would cut into the water table through earth borrowing activities. The maximum draw-down inside the Class III storm water pond, where a seepage face would be formed by the excavation into the water table to construct the pond, will be 14 feet. The lowered groundwater within the storm water ponds is due in part to the natural sloping land surface of that area and the concurrent natural slope of the water level before the ponds are even excavated. The slope of draw-down will decrease rapidly, that is, much of the 14 foot or 16 foot apparent draw-down amount will be the result of the relatively sheer seepage face formed by the pond excavation. At the top of that seepage face, the groundwater cone of depression will flatten out considerably and very rapidly so that, as the slope of the draw-down decreases rapidly in the immediate vicinity of the pond, the groundwater outside the ponds themselves will actually be lowered less than five feet. The groundwater levels used in the application were based upon seasonal high water level for the site, rather than "average dry season low" water levels, as referenced in Section 10.6.3 of the Water Management District's Applicant's handbook. Therefore, the projected draw-downs are very conservative and would overestimate the actual draw-down for dry season low water table groundwater levels. Consequently, the weight of the evidence supports the Applicant's predictions on the effects of draw-down. The evidence demonstrates that draw-down from the storm water ponds associated with both landfills will have either no impact or minimal impact on wetland species, either transitional or submerged, in the surrounding wetlands. Silvi-culture activities on the site have considerably altered the area and lowered the natural water table through the construction of drainage structures by the timber company in the past. In general, the wetland jurisdictional lines from the storm water ponds are based on United States Army Corps of Engineers (Corps) wetland criteria and thus do not contain species generally considered to be wetland species for purposes of DER dredge and fill or Water Management District MSSW jurisdictional purposes. Many species used by the Corps in determining jurisdiction, such as slash pine, can grow both in uplands or wetlands. The edges of the areas delineated as jurisdictional wetlands are dominated by transitional and upland plant species such as slash pine, gallberry, palmetto, grapevine and huckleberry, which can tolerate dry conditions. It is only as one's investigation proceeds waterward or toward the center of the delineated wetlands, (in which area the land surface slopes down- gradient at the same area where the draw-down cone of influence rapidly diminishes to an insignificant level), that the plant species change to those species adapted to regular and periodic inundation for purposes of the State agencies' wetlands jurisdiction. The draw-down maximum for any wetland location using the maximum projected radius from Dr. Miller's efforts of 184 feet, (17 feet beyond the projection based upon the Water Management District's model), is on the southwest edge of the Class I pond. Maximum draw-down there will be 24' inches at the wetland boundary line, that is, the Corps jurisdictional boundary line where the dominant plant species are transitional or upland plants such as slash pine, gallberry and bay trees. Pine trees at this point exhibit tall and vigorous growth which indicates that the water table, before installation of the ponds, is already well below the surface, otherwise these upland trees would lack sufficient oxygen to grow if water levels were closer to the surface. The potential draw-down here would thus have little effect on this vegetation. There will be essentially no draw-down effect further down-gradient beyond the DER Water Management District jurisdictional boundary, where the pines are already of diminished stature because of water existing close to the land's surface and where DER wetland jurisdictionally-listed plants predominate. The draw-down at the wetland boundary line on the southeastern part of the Class I pond will be 9 2/3 inches. Wetland species which could be affected are found 50-60 feet beyond that radius of influence at this point. The radius of influence on the northern side of the Class I pond will not cross any wetland boundary until it widens at the northwestern corner. The maximum draw-down at the wet land line near the northwestern corner of the pond would be approximately 15 1/2 inches. Here again the predominant plant species are the upland species of slash pine and gallberry and thus the draw-down will have little effect on those species for reasons mentioned above. On the western edge of the Class III pond is an isolated wetland for purposes of the Water Management District MSSW and Corps jurisdiction only. The edge of that wetland is dominated by slash pine and gallberry. The estimated draw-down on the boundary line of that land in the area dominated by slash pine and gallberry is six inches. There will be no draw-down from that Class III borrow pond area in any wetland dominated by transitional or submerged species. In addition to the above considerations and factual findings concerning the effect of the draw-down, the Applicant is proposing an irrigation systems as delineated above, which will deliver water to the wetlands to mitigate and replenish any minimal impacts of groundwater draw-down. The irrigation system will increase the degree and duration of saturation of the soils at the wetlands' boundary. This will mitigate any minimal effect of draw- down and may actually have the effect of enhancing the health and quality of the wetlands over time, from the wetlands' boundary waterward. In order that the irrigation system will pose the maximum benefit and most closely imitate the natural systems, the irrigation system will be designed for flexible operation. A wetlands ecologist will review the wetlands quarterly and adjust the irrigation system as necessary, as to location and operational regime, in order to properly maintain the health, including water levels and hydro-periods in the wetlands. The Applicant has agreed that the grant of the permit be conditioned to allow for this ongoing quarterly investigation and adjustment. Dr. Motz indicated in his testimony his belief that, to a large extent, the water pumped to the wetlands through the irrigation system would simply immediately migrate to the groundwater and immediately back to the storm water pond, through the effects of the draw-down, and not serve the purpose of replenishing the wetlands. He admitted, however, that he did not know whether the proposed irrigation system would work or not. The Applicant's expert witness in this regard, Dr. Leve, established that the irrigation system would effectively distribute water into the wetlands and saturate the surface due to the "mound effect" of water at the irrigation systems' discharge point at the wetland boundary. He used a standard, generally-accepted "mounding model" to predict the effects of the mounding for the irrigation system. Mounding is a hydrogeological phenomenon whereby water will mound up and create a zone of saturation in the soil at the point of discharge to the ground surface. Mr. Leve ran that model for a cross-section of each of the storm water pumps. He also ran the model for two different values of groundwater inputs into the ponds. A figure of 28,800 gallons of groundwater infiltration into the pond per day, as predicted by the Applicant's expert witnesses, and the 100,000 gallon per day groundwater input predicted by Dr. Motz was used. For both cross- section locations examined by Dr. Leve, the discharge of 28,000 gallons per day at the wetland boundary would raise groundwater levels by approximately three inches. The discharge of 100,000 gallons per day at the same locations through the irrigation system would increase water levels by approximately nine inches. These calculations ware based upon the discharge of the groundwater inputs into the storm water pond only. Discharge additionally of the inputs from storm water runoff from the surface of the landfill into the pond and then through the irrigation system would also be delivered into the wetlands as warranted. Additionally, a berm system will prevent surface water runoff from entering the north dirt borrow area. A berm will be constructed at the eastern boundary of the north borrow area to maintain an interior water elevation of 125 feet or one foot above the natural ground, whichever is higher. Water levels will thus be maintained at the north borrow area so that there will be no lowering or de-watering of the groundwater table. Additionally, storm water will be diverted by berms along the west end of both the Class I and Class III landfills upgradient and into the wetlands, so that the adjoining wetlands receive significant surface water recharge that previously did not flow into those wetlands. Mitigation A mitigation plan was proposed for purposes of both the dredge and fill permit application and, in the solid waste landfill application, for the MSSW permitting. It was incorporated into the draft dredge and fill permit and draft landfill permit incorporated in the Department's Notice of Intent to issue. The mitigation plan and other measures will offset the impacts from filling and other activities caused by the project in both the dredge and fill and MSSW jurisdictional wetlands on the site. The proposed mitigation measures include the creation of 4.76 acres of new wetlands; the irrigation of the wetlands surrounding the Class I and Class III storm water ponds, as delineated above, and the diversion of surface water around the landfills into the wetlands to aid in their recharge. A high quality, forested wetland will be created utilizing the reliable method of mulching and, an extensive hardwood planting program which will include red maple, sweetgum, cypress and tupelo trees. The created wetland will contain deep water and transitional zones. The area will be monitored to insure 80 percent survival of the trees planted and routine maintenance will be performed. Approval of this mitigation plan and any issuance of the permits should include the requirement that rapid replanting be done to replace any dead trees and such approval should also be conditioned on the use of the largest trees possible to be planted, by appropriate tree planting equipment, so that the beneficial uptake and filtering functions, as well as wildlife habitat functions of such hardwood wetlands can begin operating as a mitigatory factor as soon as possible. The created wetland area will replace lost wetlands with a wetland type of higher quality and potentially higher habitat function, depending upon the maturity of the trees planted (see above condition). The wetland replacement ratio attendant to the creation of this wetland area is proposed to be 2.8:1 and the permit should be conditioned on at least that ratio being observed in the mitigation wetland installation plan. Although there was some testimony critical of the wetland creation proposal because it would alter 4.76 acres of uplands which might be of significance to the wildlife in the area, in fact the site of the mitigation area is currently pine plantation which has been greatly altered from its natural state. It does not currently provide high quality upland wildlife habitat. Additionally, only 30-40 percent of the uplands on the entire tract will be altered by the entire project construction proposed. This leaves a majority of the uplands presently on the site in their current condition to the extent that it serves as wildlife habitat at the present time. A conversion of the subject area into a high quality hardwood forest wetland, which would remain bordered by upland on one side in any event, will not have any significant impact on the present value of the mitigation areas as habitat. Wetlands Assessment and Impacts Through the use of consultant personnel skilled in the fields of surveying, biology and botany, the Applicant established jurisdictional lines demarcating the boundaries of DER jurisdiction for dredge and fill permitting purposes and MSSW permitting purposes in the field and adduced evidence of those boundaries at the hearing. The jurisdictional lines established were conservative in the sense that they reflect the jurisdictional standards of the U.S. Army Corps of Engineers, which is generally landward of the lines which would be established by the plant communities characteristic of DER dredge and fill and Water Management District MSSW jurisdiction. The locations of the flags as placed by the biology-botany consultant were then professionally surveyed and plotted by a trained surveyor such that the jurisdictional line was signed and sealed as a "specific purpose of survey." Further, a biologist met with the surveyors weekly to review the plotted line to ensure accuracy. That survey was submitted to the Department in connection with the applications herein. The Department supports that jurisdictional determination in this proceeding. The Department's own jurisdictional determination staff members were on the sites of the jurisdictional determinations for approximately eight days. The location of the wetland jurisdictional line for purposes of MSSW permitting has not been challenged by Petitioners, and no evidence regarding MSSW jurisdiction has been presented by Petitioners in this proceeding. The wetlands jurisdictional survey prepared by the Petitioners, however, showed "new" DER jurisdictional wetlands which would represent, if accepted, an alteration of the DER jurisdictional wetland boundary. Additionally, the challenge to the DER. jurisdictional determination is restricted by the Petitioners to the area around the Class I landfill footprint and its associated storm water pond. No evidence has been presented regarding the jurisdictional determination for the remainder of the site and project, including the access road. Witness Don Garlic has a degree in marine biology with additional coursework and training in the field of botany, including field training in wetland species. He visited the site for seven days for the purpose of critiquing the dredge and fill DER jurisdictional line established by the Applicant and offered as proof by the Applicant in this proceeding. In the 2-3 mile segment of the jurisdictional line around the Class I landfill and associated storm water pond, Mr. Garlick opined that there were three gaps 18-20 feet wide where he did not agree with the dredge and fill jurisdictional line determination. These areas represented by the gaps, if the gaps were determined to be jurisdictional, would add rather long, linear features of putative wetlands to the jurisdictional wetlands already encompassed by the proposed Class I portion of the project. They would add approximately 1/2 acre of additional DER jurisdictional wetlands impacted by the project. The Petitioners, however, did not establish the duration of water flow at any of the areas in which dredge and fill jurisdiction was contested. Mr. Garlick stated that water was flowing each of the seven days he was on the site, from March 28 to May 8, 1991, but stated that it was raining when he was there on April 23. He did not review rainfall data to determine whether it had rained prior to any of his visits. Likewise, he was not shown to have reviewed any groundwater data or to have performed any tests to ascertain groundwater levels in relation to claiming jurisdiction over the disputed Areas A, B, C and D depicted on Petitioners' Exhibit 8. This site has not experienced a prolonged drought. For the period 1988 through the hearing, only the latter portion of 1990 reflected a significant lack of rainfall based on rainfall data obtained from the National Oceanic and Atmospheric Administration Office (NOAA) at the U.S. Navy's nearby Cecil Field, as well as the Jacksonville International Airport. Nineteen eighty-eight, in fact, had above-average rainfall of 61 inches. The Class I landfill area was originally "flagged" in September and early October 1989. July, August and September 1989 were months of above average rainfall. September 1989 had 14 inches of rain, twice the normal rainfall. Nineteen ninety had slightly less than half of its average rainfall for the year, although it started out with normal rainfall and became dry in the fall months. There has since been twice the normal rainfall for the few months of 1991 prior to the hearing. A drought of the type and duration experienced in the latter part of 1990 would have had no significant effect on the plants at the sites in question (sites A, B, C and D). They are perennial plants that remain year-round and therefore are adapted to drought and flood conditions. (T-2047) 1/ The Applicant's jurisdictional determination based upon dominant plant species, established by its consultant in evidence was based upon perennial plant species. Therefore, the hydrological conditions on the site were normal ones when these areas were originally reviewed in 1989 and the jurisdictional delineations established and the conditions found at the site shortly prior to the hearing in March through early May 1991 by Mr. Garlick were unusually wet conditions and do not reflect the normal conditions prevailing at the site. Mr. Byron Peacock was accepted as an expert in wetlands ecology and botany with a B.S. degree in each of those disciplines, with emphasis on Florida wetland species, especially with regard to Florida fresh water wetlands. Mr. Peacock is quite familiar with the site, having been to the site "dozens of times" since September 1989, almost every month for a 21-month period. Mr. Godley, another of Applicant's expert witnesses, also visited the areas put into contention by Mr. Garlick in his testimony for purposes of testifying in rebuttal and also concluded that these areas were not jurisdictional for purposes of the DER's dredge and fill jurisdiction. Mr. Mike Eaton of DER visited at least one of the areas or sites in contention and was of the same opinion. Mr. Garlick had relied on flowing water being present and the plants present to determine that Area A, a ditch along Hells Bay Road, was a jurisdictional wetland area. The areas on both sides are upland. Mr. Garlick testified that there were breaks in the vegetation in Area A and that the vegetation was sufficient to establish a connection. Area A does not contain sufficient water to support a dominance of listed wetland species under either the "a or b tests," as provided in Rule 17-301.400(1)(a) and (b), Florida Administrative Code. There is upland vegetation growing all the way across the ditch on both sides at its connecting point and point of discharge to dredge and fill wetlands. If the ditch held water it would be wettest at this point of discharge into the jurisdictional wetlands, but the ditch does not contain water on a regular and periodic basis, as established by the testimony of Mr. Peacock. Therefore, the water observed in the ditch by Mr. Garlick would have been surface water runoff from the recent high rainfall. Concerning Area B in the Class I storm water pond footprint, Mr. Garlick indicated that he relied on herbaceous wetland plants as a basis for his finding of that as a jurisdictional area. He used the "b test" vegetation method of at least 80 percent transitional plants, less than 10 percent submerged or upland species, as well as the presence of "other indicators" of regular and periodic inundation for that Area B for purposes of the rule cited last above. Area B is a logging road and lies between upland stands of planted pines. It has been used as a road within the past year and there are "rutted- out" or gouged areas in the road caused by vehicular traffic which have puddled water, but between the puddles are areas dominated by upland vegetation. There is also a clear vegetative break in jurisdiction at the point where Area B connects to the jurisdictional line at Area B's southern end. The vegetation at that connecting point is a mixture of red. root, a transitional plant and many upland species, the dominant one being amphicarpum muhlenbergianum, which looks similar to red root in the field. Mr. Garlick testified that red root was the predominant plant in Area B. Mr. Garlick may have mistaken amphicarpum muhlenberqianum for red root. He was not familiar with that upland species and did not know if it was found at the site. A review of photographs from the 1950s, 1960s, 1970s and 1980s showed that Area B had historically always been uplands. The evidence shows that this area holds water only in limited areas following rainfall and that there is no hydrological, "a or b test" vegetative connection between these areas and jurisdictional waters of the State. Area C, located on the west side of the present West Fiftone Road, also contains part of an old road bed, as well as a ditch. Area C was determined to be within MSSW jurisdiction by the Applicant, but was also claimed as a dredge and fill jurisdictional area by Mr. Garlick for the Petitioner. Mr. Garlick indicated in his testimony that plants in Area C were mixed transitional and submerged species, but were sufficient to make out the area as within DER jurisdiction, based upon those plants. He also testified that different parts of Area C met the "a test" or the "b test." The ditch on the eastern side of Area C is dominated by upland vegetation, including amphicarpum grass, slash pine and goldenrod. The slash pines growing in the ditch, as shown by a photograph in evidence, were several years old. This ditch was dry on all of Mr. Peacock's visits to the site except recently during heavy rains. The remainder of Area C is characterized by a canopy of slash pines, a subcanopy of titi shrub of an upland type, with less than ten percent of the vegetation being characterized by bay and tupelos. There is a ground cover over most of that area consisting of upland species such as chokeberry, gallberry and reindeer moss. This area was determined to be jurisdictional for MSSW purposes because of a wet area in the middle containing fetter bush and sweet gallberry, which are both transitional species for jurisdictional purposes. The entire Area C was delineated as MSSW in the permit application, even though it may not all be jurisdictional, simply for ease of delineation and survey. The MSSW wetland areas within Area C, however, have no vegetative or hydrologic connection to the dredge and fill jurisdictional wetlands. Area C thus does not contain sufficient water or vegetation under either the A or B test connected with other jurisdictional areas to be considered jurisdictional for purposes of the DER's dredge and fill jurisdiction. Area D consists of a rutted trail-road used on a regular basis by persons visiting the tract. There is an upland pine plantation on either side of the roadway. Mr. Garlick contended there was a "flow way" in Area D, but that the vegetation was spotty or sporadic. During the past 21 months, Area D was dry every time Mr. Peacock was on the site, except recently after prolonged, heavy rains. At the eastern end of Area D near its connection to Area C, there is a patch of upland amphicarpum grass, growing all the way across the ditch and road. There is also the presence of beak rush, an upland plant which looks similar to submerged rush. There is insufficient water or wetland vegetation under either the a or b test to establish that this Area D is jurisdictional. The evidence thus did not support the Petitioner's contention that additional dredge and fill wetlands would be impacted by the project. The areas claimed by the Petitioners as additional jurisdictional wetlands did not contain sufficient water to be determined jurisdictional, pursuant to DER Rule 17-301, Florida Administrative Code. These areas held water only at certain times of the year in direct response to heavy or frequent rainfall and were normally influenced, that is, fed, by surface water rather than groundwater. Likewise, these areas did not contain sufficient plant species in the canopy, subcanopy or ground cover to be considered jurisdictional pursuant to vegetation indices and procedures delineated in Rule 17- 301.400(1)(a) or (b), Florida Administrative Code. Mr. Mike Eaton of DER testified and established a 1990 DER policy embodied in a memorandum admitted into evidence explaining how the Department employs the above-cited rule for purposes of using hydric soils in making dredge and fill jurisdictional determinations. Both Mr. Eaton and the DER policy in evidence established that hydric soils are not used by the Department except as an indicator of regular and periodic inundation once "b test" vegetation has been determined to be present for purposes of the above rule. Mr. Garlick testified that he used hydric soils as a "back up" to jurisdictional determinations based upon hydrology and plants. He did not identify any area where his jurisdictional determination was based on soils alone. The Department policy memorandum in evidence emphasizes the importance, in jurisdictional determinations with hydric soils as an aid, of not merely determining whether the soil in question is hydric, but also of investigating the specific characteristics of the soil profile, which the Department maintains must be performed by a soils scientist. Mr. Carlisle, a soil scientist, visited the site and took samples of the areas indicated by Mr. Garlick. These locations were located in an approximate fashion by Mr. Garlick on Petitioner's Exhibit 8 at the hearing. Thirty-four of the 35 samples taken were determined to be hydiric by Dr. Carlisle. There are, however, breaks of up to approximately 525 feet between the hydric soils test findings in Areas A, B and D and yet the distance between one hydric and non-hydric soil test finding was shown to be approximately 50 feet. No soil samples were taken by Dr. Carlisle in Area C. These samples are found to provide an insufficient basis for determining the presence of hydric soils throughout Areas A-D. Additionally, Areas A-D did not contain areas of "b test" vegetation contiguous to other jurisdictional areas. Therefore, even if hydric soils had been present throughout these areas, these soils standing alone, without supporting "b test" vegetation, are insufficient to establish jurisdiction in the areas maintained to be so by Mr. Garlick. General Wetland Impacts This project will impact wetlands subject to the DER jurisdiction and which are jurisdictional for MSSW purposes under Chapter 40C-4, Florida Administrative Code, the rules of the St. Johns River Water Management District. Thus, a dredge and fill permit is required pursuant to Section 403.91 et seq., Florida Statutes, and DER Rule 17-312, Florida Administrative Code. Areas subject to DER dredge and fill jurisdiction and MSSW permitting jurisdiction are considered pursuant to DER Rules 17- 301 and 40C-4, Florida Administrative Code. The 1,288 acre site contains approximately 550 acres of wetland, much of which contains planted pines as well as some naturally occurring pines, as well as hardwood swamp, cypress and gum swamp, seepage slope, ditches and swales. Virtually all of the wetlands have been adversely affected in some way by the forestry practices which have occurred and are still occurring on the site. Most of the sloughs and natural flow-ways have been channelized. Ditching has drained the adjacent wetlands and significantly altered the hydrology of the entire wetland system on the site. The wetland known as Hells Bay Swamp, immediately east of the landfills, is currently being clear cut by the Gilman Paper Company. The 550 acres of wetlands are jurisdictional for either dredge and fill or MSSW purposes or both. Some 3.17 acres of MSSW wetlands will be impacted by project construction; 1.61 acres of these are also dredge and fill wetlands. The 1.61 acres of the impacted dredge and fill and MSSW wetlands consist of roadside ditches along the Hells Bay Road and a road on the north side of the Class I landfill. These roads are currently subject to logging traffic, which decreases the usage of the roadways and ditches by wildlife. Consequently, the master of species present and using these ditches is limited. In addition to the 1.61 acres of ditches, the impacted MSSW wetlands also include 0.16 acres of wetland ditches along the entrance road in proximity to dredge and fill wetlands, a 0.80 acre isolated cypress head wetland located within the footprint of the Class I landfill and a 0.60 acre wetland located along West Fiftone Road extending into the south border of the Class I landfill footprint. The 0.80 acre cypress head has already been impacted by a logging road or fire break, and ditches have been constructed through the interior of it. The larger cypresses have been logged, and the remaining vegetation is sparse, rendering it of little quality as habitat for fish and wildlife. The 0.60 acre wetland extending into the south border of the Class I landfill is an old road bed with evidence of ruts from vehicular traffic depicted on photographs in evidence. This area has a slash pine canopy and is dominated by titi shrubs, with a few black gum and traditional wetland plant species such as fetter bush and gallberry in disconnected areas. It is a low quality wetland of scant value as habitat for fish or wildlife. Prior to and during construction, as a condition on a grant of the permits, all wetlands on the site will be protected from erosion, siltation, scouring or excessive deposition of turbidity, de-watering or other construction and operationally-related impacts by the installation and use of siltation barriers placed at wetland boundaries. Because of the significant possibility of the impacts mentioned above, especially siltation and turbidity, to the wetlands during the construction phase of the facilities and attendant to ultimate operation of the landfill itself, grant of the permit should be conditioned on acceptance of monthly inspections by DER enforcement personnel once construction has begun. Wildlife and Archaeological Resource Impacts Wildlife surveys were conducted by expert witness Isaac Rhodes Robinson and members of his staff, as well as by Biological Research Associates, Inc. in the months preceding the hearing. Mr. Robinson and the biologists on his staff spent approximately 1,000 man hours surveying the site, and Mr. Robinson, accepted as an expert in wildlife ecology and wetland ecology, testified on behalf of the Applicant in this proceeding. Assessments of the site were performed by reviewing relevant literature as well as conducting field surveys for both upland and wetland species. No evidence was found of any threatened or endangered species on the site. Mr. Robinson and his staff conducted surveys in 1990 and in early 1991 and biologists from Mr. Robinson's staff were present on the site at various times from September 1989 through the time of the hearing. Surveys performed by Mr. Robinson and his personnel were conducted in accordance with Florida Game and Fresh Water Fish Commission (FGFWFC) guidelines and exceeded that agency's guidelines by surveying 100 percent of the upland areas. No testimony of any witness in this proceeding indicated any physical evidence of use of the site by any endangered or threatened species. Wildlife surveys revealed a shall colony of gopher tortoises, listed as a species of special concern by the FGFWFC in a marginal habitat zone on the extreme western boundary of the Class I disposal area. The colony consists of less than ten individuals and there will not be a significant impact to the tortoises because the individuals will be trapped and relocated to a more suitable habitat on another area of he Applicant's tract, which will be undisturbed by the landfill or its operations, or else to a suitable habitat area off-site, as directed by the FGFWFC. Jay Stephen Godley was accepted as an expert in wildlife ecology and wetlands ecology. He directed an independent assessment of the site and project's impacts. The assessment included reviewing permitting documents, aerial photographs and literature pertaining to wildlife use of the site, as well as over 90 man hours spent at the site. He confirmed that the small population of gopher tortoises was the only significant species on the site and that the project would not significantly impact any listed wildlife species. Extensive trapping and investigation of gopher tortoise and armadillo burrows reveal no evidence of listed "commensal" species, or those species commonly found in association with gopher tortoises, such as Florida mice, gopher frogs, Florida pine snakes, or Eastern indigo snakes. In additions the isolated cypress head in the Class I landfill footprint was sampled for gopher frog tadpoles, and none were found. Florida pine snakes prefer scrub or sand hill habitats, neither of which are found on the site. Pine flatwoods environments, without the presence of either sand hill or scrub habitat, like this site, are not good indigo snake habitat. No indigo snakes' shed skins or other evidence of indigo snake frequency were observed on the site. Indigo snakes are large black snakes which are active during daylight hours and easy to observe in the course of extensive surveys such as those that were conducted for purposes of this project. Considering the amount of time spent by the various biologists on the site, it is quite likely that indigo snakes would have been observed if they frequented this site. The project will have no significant impact on wading birds. All wetlands were surveyed for listed bird species for a minimum of five days using FGFWFC guidelines. No wading birds were observed on the site during the 21 month period of review by Mr. Robinson's firm. The existence of the wood stork, bald eagle or Florida sand hill crane was not established on this site and is considered unlikely by the expert witnesses, whose opinions are accepted. No eagle nests were observed and, since the tree cover provides very limited extent of open water, the site is less than satisfactory as habitat for the little blue heron, snowy egret and Louisiana heron. The only wading bird observed by the Petitioner's expert witness on wildlife issues was a little blue heron observed in a wetland area east of the site, which is off the site being purchased by the Applicant and which was recently clear-cut by the Gilman Paper Company. The project will have no significant adverse impact on the Florida black bear's habitat. The black bear is a threatened species, but black bears do not use the site. No evidence was presented that black bears have ever been present on or in the immediate vicinity of the site. No witness, including Mr. Goodowns, an employee of Gilman Paper Company who has frequently visited and worked on this site over many years, has ever observed a black bear or any sign of a black bear present on the site. Bee hives have been kept at the site since at least 1969 and, although these are very attractive to black bears, they have never been known to have disturbed the hives, nor has it ever been necessary for bee keepers to erect electric fences or other devices to protect the hives from bears. The site presently is not far isolated from human activity, which fact deters the use of it as a habitat or an occasional travel way for black bears. It is located in an area completely enclosed by I-10, State Roads 228 and U.S. Highway 301, all heavily traveled public highways, as well as in close proximity to the town of Maxville, approximately two miles away, and Macclenny, approximately five miles away. Highways with high traffic volumes are significant barriers to movements of black bears, rendering it even less likely that black bears have or will frequent the site. The only evidence of potential black bear presence anywhere near the site presented by the Petitioners was the site's position near the Osceola Black Bear Range, as interpreted from one published article, as well as indication of three bear road kills from six to 15 miles away from the site, and supposed black bear movements recorded by the FGFWFC, all represented on a hand-drawn map, only admitted a corroborative hearsay pursuant to Section 120.58, Florida Statutes. The map exhibit contained the expert's own redrawing of his interpretation of the extent of the Osceola Black Bear Range from the article he referenced, which itself was not offered into evidence. Bear movements depicted on the map really consisted of those of a bear apprehended by the FGFWF and released in the area. The map did not show any roads, therefore making location and distances to the reported road kills speculative at best. Because black bears do not use this site and because of its encirclement by significant human activity, the site is not significant as a bear dispersal corridor or travelway between the Osceola Forest bear population and the Ocala Forest population. No direct evidence by radio-telemetry data or otherwise was offered to show that black bears actually move between the Osceola and Ocala Forest populations, nor particularly that they move through the area in the immediate vicinity of the project site. Construction of the landfill would not prevent the movement or foraging of black bears through the site. Neither fencing nor presence of traffic on the landfill access roads only during daylight hours would prevent such movement. It is also unlikely that bears would likely be hit by traffic on the roads because the noisy trucks which will use the road would provide ample warning to bear's of any danger from traffic so they would avoid it. If the landfill were constructed on this site, less than one-half of 5/100 of one percent of the 3,800 square- mile area of the Osceola Black Bear Range, referenced by the Petitioners' expert witness, would be impacted. The site itself does not provide high quality black bear' foraging or denning habitat. Even the Petitioners' expert characterized it as "good" or "better than average" habitat. All but 3.17 acres of the area to be impacted by the project is upland, consisting primarily of pine flatwoods. Authoritative studies show that flatwoods are not heavily utilized by bears, which spend 70 percent of their time in swamp or wetland habitat. The 550 acres of wetlands, including approximately 280 acres of swamps, which will be left undisturbed on the site, will provide habitat and travel corridors for the black bears should any ever frequent the site. Additionally, the 4.76 acres of hardwood wetlands to be created as mitigation, would add high quality wetland habitat for black bears. Therefore, due to the extremely small area involved, the unlikelihood of use by black bears and the mitigation proposed, the landfill will have virtually no impact on black bear habitat, travelways or populations. The evidence thus established that the project will not have an adverse impact on endangered or threatened species or their habitats. Because the site has been under extensive commercial forest management and harvest operations for over forty years, the density of plant and animal life has been reduced, thus making the site as a whole, low quality wildlife habitat.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation approving Trail Ridge Landfill, Inc.'s applications for the above-referenced permits for the proposed solid waste management facility, including a solid waste management facility permit, a storm water/management and storage of surface waters permit and a dredge and fill permit, provided those mandatory conditions specified in the Notices of Intent to issue such permits, as well as those conditions found to be necessary in the above Findings of Fact and Conclusions of Law are made mandatory conditions of permitting and subsequent facility operations. DONE AND ENTERED this 20th day of September, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September 1991.
The Issue The issue to be determined in this proceeding concerns whether the applicant has provided reasonable assurances that the proposed bridge project will meet the requirements of Chapter 403, Florida Statutes, and the various provisions contained in Title 17, Florida Administrative Code, so that a dredge and fill permit should be issued. More specifically, the issues concern whether the various water quality standards embodied in Title 17 of the Code and Section 403.918(1), Florida Statutes, will be complied with and whether the public interest standards in Section 403.918(2), Florida Statutes, will be met in the sense that the project can be assured not to be contrary to those standards.
Findings Of Fact Taylor County, through its duly-elected representative body, the Taylor County Commission, has filed an application seeking authority, by the grant of a "dredge and fill permit", to place fill material and to perform construction of a bridge across an unnamed canal in Taylor County, Florida, in the vicinity of Keaton Beach. The proposed bridge would connect Balboa Road and Marina Road on Pine Island in the community of Keaton Beach. Pine Island is an elongated strip of land separated from the Taylor County mainland by water and lying generally in a north/south direction. It is an artificial island created by dredge spoil from dredging activities by which certain canals were constructed during the decade of the 1950's. It is bounded on the west by what is known as "Main Canal", on the north by an unnamed canal, and on the east by what is known as "Back Canal". South of Pine Island is an inlet of the Gulf of Mexico. The canals involved in this proceeding, named above, are Class III waters of the State of Florida. Marina Road runs down the center of Pine Island. Lots to the west of Marina Road abut Main Canal and lots to the east of that road abut the Back Canal. Pine Island has been platted into approximately 110 lots. There were 47 homes and two (2) trailers on Pine Island at the time of the hearing. Only 17 full-time residents live there. Keaton Beach Road, also known as County Road 361, runs in a north/south direction generally and relatively parallel to Marina Road on land lying across Main Canal from Pine Island. In the past, Pine Island Drive connected Keaton Beach Road and Marina Road. It traversed Main Canal over what was known as the "humpback bridge", a wooden structure. The bridge ultimately became decayed and hazardous so that it was removed by the County in 1983. East of Pine Island, forming a continuation of Pine Island Drive, is a limerock road. This road presently provides the only vehicular or pedestrian access to Pine Island. It crosses the Back Canal over a culverted-fill area, making a 90 degree turn to the north and runs north along Back Canal. It then turns in an easterly direction until it meets Balboa Road. The property to the east of the center line of Back Canal and to the east of Balboa Road belongs to Dr. William Kohler. Other than the one-half of the culverted-fill area that lies west of the center line of Back Canal, the limerock road is on Dr. Kohler's land. In 1974, Taylor County was concerned about the use of the humpback bridge by school buses. It asked Dr. Kohler to grant it an easement over the limerock road for use by school buses. That limerock road passes over portions of Lots 44 and 45. Although Lots 44 and 45, east of Balboa Road, were not included in the written easement, Dr. Kohler has allowed use of the limerock road that passes over portions of Lots 44 and 45 since that time. Balboa Road presently terminates in a cul-de-sac at the edge of the unnamed canal that bounds the north end of Pine Island. On Pine Island, Marina Road is paved at the present time past the front of and to the northern property boundary of Lot 13, Petitioner Brumbley's residence lot. At that point, Marina Road ends at the south side of an unnamed dirt road. Between the north side of that unnamed dirt road and the unnamed canal lie Lots 2-6. The proposed Balboa bridge will start at the end of Balboa Road, cross the unnamed canal, cross a portion of Lot 2 and 3 on Pine Island, and tie into the existing grade at the "T" intersection where Marina Road deadends into the unnamed dirt road. The unnamed canal runs approximately east and west at the location of the proposed bridge. The bridge would be constructed on top of revetted fill material that will be placed to the north and south of a 15-foot wide span over the middle of the unnamed canal. The bridge construction shall be according to the Florida Department of Transportation specifications for road and bridge construction. The bridge will have a DOT approved guard rail on each side. No water quality violations will result from the proposed project. Turbidity violations may occur on a temporary basis during construction and so turbidity screens and silt barriers will be installed by the applicant to prevent such turbidity from migrating away from the site itself. A condition on the grant of the proposed permit has already been agreed to by the Respondent parties which will require turbidity and erosion-control devices prior to any excavation or placement of fill material. Specific condition eight also requires that these control devices remain in place until the fill has been vegetatively stabilized after construction is over. The proposed project will have a positive impact on public safety and welfare by providing proper and appropriate access to Pine Island by a more stable, safe roadway to which the bridge will be connected. During periods of high water, the present limerock access road floods, limiting emergency access to the Island. On one occasion, an injured person had to be carried down the limerock road to meet an ambulance at another location because the ambulance was unable to traverse the flooded limerock road. It is Dr. Kohler's intention to terminate use of the limerock road by members of the public since it is on his property. When that occurs, there will be no access to Pine Island unless the proposed bridge is built. The present limerock access road can be dangerous and slippery when wet, and persons using the limerock road often travel "dangerously fast", as testified to by Petitioner, Doris D. Brumbley. The 90-degree turn of the limerock road has no guardrails. The proposed project will, to a minimal, temporary degree, adversely impact fish or wildlife and their habitats, marine productivity and the current condition and relative value of functions being performed by the area affected by the proposed bridge. The canal system was originally excavated out of the salt marsh. Being man-made structures, their sides have slumped somewhat and have established a small, littoral zone where vegetation grows. Mud flats at the bottom of the canal bank allow the growth of oysters. The fill area associated with the proposed bridge, however, will have a surface area and volume comparable to the culverted fill that will be removed at the point where the road presently crosses Back Canal. When the culverted-fill area or plug across Back Canal is removed, the lost vegetation and oysters will become re- established at that location, offsetting the loss that will occur at the location of the bridge. Various marine species will also become established on and benefit from the shelter of the bridge and its structure, as well. The project will not cause harmful erosion or shoaling. The banks that will result from the removal of the culverted fill and the sides of the filled areas associated with the bridge will be protected from erosion with vegetation and revetments. The proposed project will enhance the flow of water in Back Canal and will improve navigation and flushing. Water flow through the existing culvert is presently considerably restricted when compared to the water flow beneath the proposed Balboa bridge area. The existing culvert is not at the bottom of the filled area. Therefore, at low water, most of the culvert is exposed, precluding the culvert from functioning at maximum capacity to aid in flushing with the water quality benefits caused by flushing being thus retarded. The lack of water flow has caused a portion of Back Canal, south of the culverted-fill area, to fill up with sediment. At low tide, parts of the Back Canal are without water. The increased flow that will result from removal of the fill plug and culvert where the road presently crosses Back Canal will allow property owners along Back Canal to navigate their boats out into the Gulf of Mexico, thus improving the recreational value of Back Canal and the navigation in the canal system. There are no similar fill projects planned for or expected in the Keaton Beach area. All three Petitioners are concerned that storm water runoff from the proposed bridge will flood their property, however. At the present time, the road in front of the Petitioners' lots is paved, with the pavement ending at the northernmost end of the Brumbley property. Since the Petitioners' lots already receive roadway runoff from the existing paved road, any increase in runoff to their lots would have to come from storm water flowing along the length of the road from the proposed project. The road which is to cross the proposed bridge will be composed of a 20-foot wide strip of asphalt, with 5-foot shoulders on each side. The slope from the crown of the road to the outer edge of the pavement will be one-quarter inch per one foot. The shoulders will have a slope of one-half inch per foot. Thus, rain water will flow off the sides of the road and down the shoulders, rather than down the length of the road towards the Petitioners' lots. Moreover, no additional water should be directed to the Petitioners' lots since the proposed road extension between the end of the bridge and the Petitioners' lots would be flattened. Water flowing off the bridge due to gravity will be shed toward the revetment which extends down to the canal, rather than towards the Petitioners' property. Storm water impacts will be addressed again by the Suwannee River Water Management District. A storm water permit application has been submitted to the Suwannee River Water Management District and is required before the proposed project construction can start. In that storm water permit application, the applicant acknowledged its obligation and responsibility to obtain all required permitting before construction starts. The draft permit reinforces this at specific condition six: "This permit does not constitute any approval of the storm water management system which must be obtained separately from the appropriate agency." All of the Petitioners are concerned about the increase in vehicular traffic which would pass in front of their lots and the Brumbley's particularly are concerned that light from headlights of increased traffic will be cast upon and into their house at night. It is clear that traffic passing the Petitioners' lots will increase due to the proposed project. It is equally clear from the angle of the bridge shown on Joint Exhibit 2 and the elevations of the bridge, shown on Joint Exhibit 3, that light from the headlights of vehicles approaching Pine Island after dark will illuminate, at least momentarily, portions of the Brumbley home.
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 the Taylor County Commission for the dredge and fill permit at issue, as described in the above Findings of Fact and Conclusions of Law, be granted on the terms and conditions set forth in the Department's draft permit, in evidence as Joint Exhibit 7. DONE AND ENTERED this 3rd day of April, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1992. APPENDIX TO RECOMMENDED ORDER Respondent DER's Proposed Findings of Fact: 1-24. Accepted. Petitioners' Proposed Findings of Fact: None filed. Respondent Taylor County Commission's Proposed Findings of Fact: The County adopted the proposed findings of fact filed by the Department. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulatin Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William & Maria Greene P.O. Box 38 Madison, FL 32340 Doris S. Brumbley P.O. Box 742 Monticello, FL 32344 William H. Congdon, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Conrad C. Bishop, Jr., Esq. P.O. Box 167 Perry, FL 32347
Findings Of Fact The subject applications request permits from the Central and Southern Florida Flood Control District (FCD) for the agricultural irrigation and drainage of 1,780 acres of citrus lands. Received into evidence without objection were the public notices of hearing appearing in The News Tribune, Fort Pierce, Florida, and The Stuart News, Stuart, Florida; the three permit applications submitted on behalf of Kay-One Grove, Ltd., and the Revised Staff Report of the FCD. The amount of water requested by the applications is 2,670 acre-feet per year with a maximum monthly withdrawal of 600 acre-feet. The Revised Staff Report, prepared by Doug Winter, a Civil Engineer with the Hydrology Division of the FCD, recommended an annual allocation of 1,619.8 acre-feet with a maximum monthly withdrawal of 574.8 acre-feet. This Report is attached hereto. Mr. Kenneth Harris, a consulting engineer for Kay-One Grove, Ltd., gave a summation of the applications and corrected page 1 of the Revised Staff Report, under the first paragraph of "A", to change "Township 37 South" to "Township 38 South". The summation was substantially the same as that set forth on pages 1 and 2 of the Revised Staff Report. The existing facilities were also represented to be as set forth in the FCD Report. Mr. Doug Winter testified that he evaluated the subject applications and prepared the Revised Staff Report, and testified as to its contents. As to the drainage aspects of the applications, Mr. Winter testified that there would be no adverse effect on the receiving water body since the drainage capacity of the applicant's land is within the FCD's limitations. As to the agricultural uses of the water, Mr. Winter used three criteria to determine the appropriate allocation. These three criteria were the adjusted basin yield, the supplemental crop requirement for citrus and the quantity requested by the applicant. The allocation is normally the lesser of these three quantities. It was determined that the adjusted basin yield was the limiting criteria and the amount of water available for annual allocation is 10.92 inches per acre per year for the C-23 basin, which equates over the applicant's 1,780 acres to be 1,619.8 acre-feet. The FCD uses this 10.92 figure for all allocations within the C-23 basin. The maximum monthly pumpage figure based on the amount of water which would be needed in the driest month to offset a 2 in 10 year drought, modified by an 80 percent application efficiency, was determined to be 3.875 inches par acre per month, or 574.8 acre-feet or 187.3 million gallons for the entire tract of 1,780 acres. This is in contrast to the 4.0 inches per acre maximum monthly withdrawal requested by the applicant, which would equate to 600 acre-feet. As to the use of ground water from three wells located on the property, Mr. Winter determined that the allocation would be the same as for the C-23 withdrawals since the recharge of these wells would be the same as the recharge of the surface water source. Mr. Winter then reiterated the conclusions and recommendations set forth in the Revised Staff Report. It was recommended that a water use permit be issued pursuant to Application Numbers 23238 and 22046 for an annual allocation of surface water and/or ground water in the amount of 1,619.8 acre-feet, which represents 10.92 inches per acre per year, with the condition that the maximum monthly withdrawal of surface water and ground water for the combination of the two not exceed 187.3 million gallons (which represents 3.875 inches per acre or 574 acre-feet) during times of adequate water level or moderate drought conditions. Should severe drought conditions occur, the FCD will issue an order requiring a reduction of water withdrawal rates based on a water shortage plan developed by the FCD. It was recommended that a surface water management permit be issued pursuant to Application No. 22039 for the operation of a system consisting of ditches, dikes, pumps and culverts as described in the application with the conditions set forth on page 11 of the Revised Staff Report. Finally, it was recommended that a right-of-way permit be issued authorizing a 48 inch culvert connection through the FCD's south right-of-way of C-23 adjacent to Project Culvert 15 and the use of Project Culvert 13. Mr. Harris then sought a clarification of the maximum monthly pumpage amount and was assured that the applicant could apply for emergency authorization of further withdrawals under the FCD's rules and regulations, provided extreme drought conditions were not existent. It was explained that the monthly quantity allowed here, the 3.875 inches, was based on reports of the average rainfall for the Fort Pierce area and the crop requirements. The Hearing Officer then asked Mr. Harris to explain his objections, if any, to the Revised Staff Report. Mr. Harris explained that the difference between the amount of water requested and that received in the Report is small, less than 10 percent. His only other objection was to the maximum allowable runoff figure. He would like this to be increased from the recommended 2.2 inches to 4 inches. It was explained that the allowable figure is based upon the maximum capacity of the canal. Mr. Harris stated that the applicant would probably make further application for additional run-off in the future.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested and the right-of-way permit be issued in accordance with the recommendations set forth on pages 9 through 11 of the attached Revised Staff Report. Respectfully submitted this 7th day of October, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. E.D. Holcomb, Jr. General Manager Kay-One Grove, Ltd. Post Office Box 1120 Fort Pierce, Florida 33450 Stephen A. Walker, Esquire Attorney for the Central and Southern Florida Flood Control District Post Office Box V West Palm Beach, Florida
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1983.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: On May 3, 1989, Cersosimo submitted an application for a Management of Surface Water Permit to the District. Subsequent to the submission of this application, the Polk County Board of County Commissioner (Commissioners) added an additional requirement to Cersosimo's Planned Unit Development (PUD) that there was to be a pre- development/post-development match for basin runoff in the event of a twenty- four hour one hundred (100) year storm event, i.e. following completion of this project (post-development) it will handle the same outflow or flow of storm water for the twenty four-hour one hundred-year storm event as in a pre- development situation. Based on the Commissioners' requirement, the design of the PUD was amended to provide for the required storage capabilities. On July 26, 1990, Cersosimo submitted to the District, its amended application, Management of Surface Water Permit No. 405733.01 incorporating the changes necessitated due to the Commissioners' additional requirement as to storm water runoff. On August 24, 1990, Ramon E. Monreal, P.E., of the Polk County Engineering Division, noted in a letter of that same date referring to Cersosimo's modification of Retention Pond No. 300 for the project in question that "this revision appears to meet the PUD condition by the Board of County Commissioners for drainage and compliance with the Surface Water Management Ordinance". The application of July 26, 1990, amends the original application by superceding and replacing that application. In connection with the application for permit, soil borings were taken at the site location for the retention ponds in order to establish the elevation of the seasonal high water level (SHWL) for that site. The borings indicated an elevation for the SHWL of 110 feet to 112 feet above mean sea level (AMSL). The District conservationally established the elevation for the SHWL of this particular site as 112 feet AMSL. The floor elevation of the lowest retention pond was established at 114.00 feet AMSL. The elevation of the surface of Lake Mabel for the ten year flood warning Level is 114.50 feet AMSL as established by Rule 40D-8.624(1)(z), Florida Administrative Code. District policy requires the floor elevation of a dry retention pond to be a minimum of one foot above the established elevation of the SHWL of that particular site. Even though the surface elevation of Lake Mabel for the Ten Year Flood Warning Level was established as 114.50 feet AMSL, there is insufficient evidence to show that there was lateral migration of water from the lake's edge to the site of the soil borings such that it was evidenced by a demarcation in the soil profile. To the contrary, the evidence shows that there were demarcations in the soil profile to establish an elevation for the SHWL for this site of 110 feet to 112 feet AMSL. The designed weir crest in the lower retention pond, Pond No. 300, has an approximate elevation of 118.50 feet AMSL which prevents water from coming over the top into the pond in the event Lake Mabel reaches the ten year flood level warning elevation of 114.50 feet AMSL. The distance from the present water edge of Lake Mabel to the bottom of Pond No. 300 would be approximately 600 feet, laterally and if the lake reached the ten year flood level warning elevation of 114.50 feet AMSL, the lake's water edge would be approximately 100 feet laterally from the bottom of Pond No. 300. There was sufficient evidence to show that even if the surface elevation of Lake Mabel reached the ten year flood level warning of 114.50 feet AMSL and the SHWL (ground water level) reached 112 feet AMSL, the retention ponds as presently proposed with a floor elevation of 114.00 feet AMSL would still percolate sufficiently, even though the percolation may be diminished from what it would be under present conditions, so that there would still be a pre- development/post-development match for basin runoff. Cersosimo can give reasonable assurances that the surface water management system as presently proposed will not diminish the capabilities of Lake Mabel to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code. Among others, the following specific conditions in pertinent part will be placed on the permit, if granted: . . . The applicant shall visually monitor the ponds on a monthly basis to ensure that the ponds are dry within 36 hours from the end of the last rainfall event. Should the ponds fail to percolate the required water quality volume per District criteria, a permit modification shall be required. . . .
Recommendation Based upon consideration of the foregoing Findings of Fact and Conclusions of law, it is, recommended that the Southwest Florida Water Management District enter a Final Order granting the application for Management Surface Water Permit No. 405733.01, as proposed by the District. RECOMMENDED this 12th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4175 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. The Petitioner did not submit any Proposed Findings of Fact Rulings on Proposed Findings of Fact Submitted by Respondent Cersosimo 1. - 7. Adopted in Findings of Fact 1-7, respectively. 8. - 10. Adopted in Findings of Fact 10, 8 and 14, respectively. 11. Adopted in Findings of Fact 12 and 13. 12.-13. Adopted in Findings of Fact 13 and 11, respectively. Respondent District adopted Respondent Cersosimo's Proposed Findings of Fact, therefore the same rulings would apply as was applied to Respondent's Cersosimo's Proposed Findings of Fact above. COPIES FURNISHED: Catherine D'Andrea, Esquire Susan Dietrich, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Gary L. Gandy Omega Farm Post Office Box Omega Waverly, Florida 33887 Beach A. Brooks, Jr., Esquire Post Office Drawer 7608 Winter Haven, Florida 33883 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, FL 34609-6899
Findings Of Fact The subject applications requests a permit from the Central and Southern Florida Flood Control District for the irrigation of 280 acres of golf courses. The public notice of hearing appearing in The Fort Lauderdale News, Fort Lauderdale, Florida, which noticed the permit applications submitted on behalf of the Fort Lauderdale Country Club, were received into evidence without objection. Mr. Carnahan, as representative for the applicant and Mr. Walker, on behalf of the Central and Southern Florida Flood. Control District stipulated to the introduction of the applications and the staff report of the Central and Southern Florida Flood Control District, without objection. It was further stipulated that the matters as contained in the applications and staff report could be utilized as a basis for findings of fact and recommended order, without the necessity of putting on testimony in behalf of - the applicant or the staff. Pursuant to that stipulation, oral testimony was not presented by the parties. The amount of water requested by the applicant in application number 21938 is 26 million gallons per year and the amount requested in application number 21939 is 264 million gallons per year. The staff report recommended an annual allocation in the amount of 14.4 inches which is equivalent to 336 acre/feet or 109.4 million gallons a year for approval. Mr. David Carnahan, P.E., representing the applicant, did not offer any further evidence beyond the application and staff report in support of the requests for permits. Specifically, Mr. Nagendra Khanal, Hydrology Division, Resource Planning, Central and Southern Florida Flood Control District, recommended the following, through his staff report: Allocation of 14.4 inches which is equivalent to 336.0 acre/feet or 109.4 million gallons per year. The following special provisions are recommended: Approval of maximum pumpage not to exceed 5.5 inches which is equivalent to 128.3 acre/feet or 41.8 million gallons per month. Diversions of water in this amount are subject to availability of surplus water in the basin, consistent with and subject to specific basin rules including minimum flows and levels, all as determined by the District. The existing five 12 inch wells with the total installed capacity of 3,020 gpm. The term of allocation is until October, 1977. The applicant shall install a measuring device. Pumpage records from the wells shall be submitted to the District at the end of each irrigation season. There were no persons at the hearing who wished to act as intervenors in the capacity of proponents or opponents of the applications, nor were there any members of the general public, not party to the proceedings, who wished to comment on the applications.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that the permits requested be issued in accordance with the recommendations set forth in the staff report (attached thereto). Respectfully submitted this 31st day of October, 1975, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1975. COPIES FURNISHED: Mr. David Carnahan 1350 South Pompano Parkway Pompano Beach, Florida 33020 Stephen Walker, Esquire Post Office Box V West Palm Beach, Florida 33402 Fort Lauderdale Country Club 415 Country Club Circle Fort Lauderdale, Florida
