The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
The Issue The issue is whether the 100 foot separation of respondents/applicants sewage treatment plant from the surface water management system is adequate.
Findings Of Fact Based upon all of the evidence, the following supplemental findings of fact are determined: Background Respondents/applicant, John D. Remington and Bolton S. Drackett (applicants), are the owners of record of approximately two thirds, or around 2,700 acres, of Keewaydin Island (Key Island), which lies just south of the mainland portion of the City of Naples, Florida. In conjunction with a planned luxury development of forty-two homes on Key Island, applicants have filed an application with respondent, South Florida Water Management District (District), seeking the issuance of a permit authorizing the construction and operation of a surface water management system (system) through which stormwater runoff from the project will be directed and controlled. Petitioner, Florida Audubon Society (FAS), has initiated this proceeding to contest the issuance of a permit. In an earlier and separate proceeding (DOAH Case No. 90-2415), applicants applied for a permit from the Department of Environmental Regulation (DER) to construct a wastewater treatment plant (plant) to serve the planned development. The permit was issued on January 2, 1990, and because all appeals by FAS in Case No. 90-2415 have been concluded, that proceeding is now final. Although the wastewater treatment plant has not yet been constructed, the parties agree that it will be situated more than one hundred feet from the surface water management system. This distance (100 feet) is the minimum amount of space allowed by District rule between the plant and system. Even so, the purpose of the remand proceeding is to determine whether that amount of separation is adequate. Thus, the factual issue here is whether the treated wastewater from the plant and filter fields will enter the surface water management system and cause a violation of applicable water quality standards and other relevant District criteria. In support of their respective positions on this issue, the parties have presented the testimony of a number of experts. In resolving the conflict in their testimony, the undersigned has accepted the more credible and persuasive testimony which is embodied in the findings below. A Brief Description of the Development and System The proposed development and surface water management system were described in detail in the prior recommended order entered in this case. For purposes of this Supplemental Recommended Order, it need only be noted that Key Island now has a lodge, guest quarters and recreation facilities, all presently served by septic tanks. Access to the island is provided by motor launch from an existing shore station. Subaqueous utility crossings from the mainland provide electric power and potable water to the island. The planned development includes the construction of forty-two large luxury homes and an expansion of the lodge facilities to accommodate the needs of the new residents. The homes will be built in phases with approximately ten to be built in the first year. The entire project may take as long as seven or eight years to complete. The proposed surface water management system was designed to handle a seventy-five residential unit development. However, by virtue of a reduction in size imposed by the City of Naples, the project has been reduced to forty-two homes. Even so, the capacity of the system has not been downsized. Therefore, the system as designed will more than accommodate all proposed development on the island. The development area has been divided into seven surface water management basins based upon seven existing natural water sheds on the upland portion of the project. Each basin will have a system of inlets, culverts and swales which will direct runoff to control structures. The dry swales are approximately one foot deep and five to ten feet wide and run parallel on both sides of the cart paths that link the various portions of the project. The cart paths, which will be at an elevation of 5.5 feet above mean sea level (NGVD), will have culverts running underneath to aid in maintaining the natural flow of water and limit impounding of water. The swale bottoms are designed to be one foot below the cart path elevation, or at 4.5 feet NGVD, and will be dry, except during significant rain events, because they are designed so that the bottom of the swale is at least one foot above the average wet season water table. Both the cart paths and swale system utilize a design system that is common to residential developments. Once the water reaches a specified height, it goes over the control structure and is discharged downstream into spreader swales from which the water is dispersed into either interior, low wetland areas or into two artificial lakes (7.3 and 1.0 acres in size) created for wet detention. Basins one, two, three, four and seven are designed to treat water quality by the dry detention method, that is, by the unlined swales that parallel cart paths, while water quality is accomplished in basins five and six by best management practices and wet retention, that is, the two artificial lakes. The Wastewater Treatment Plant The DER permit was issued on January 2, 1990, and carries an expiration date of January 2, 1995. It authorizes applicants to: construct a 0.035 MGD extended aeration process wastewater treatment plant with reclaimed water to dual absorption fields located at the project site as depicted on Wilson, Miller, Barton, Soll & Peek, Inc. design drawings, project number 6270, sheets 1 thru 5 of 5, dated March 20, 1989, revised October 16, 1989 and received October 19, 1989. The design drawings were submitted in support of construction application, engineering report, hydrologeolic characteristics and hydraulic modeling for effluent disposal report and related documents, dated March 20, 1989. The hydraulic capacity of the plant is limited to 0.030 MGD based on the reclaimed water disposal system. The collection system shall not exceed the 0.030 MGD hydraulic capacity as well. The wastewater treatment plant is designed to meet all DER water quality, health and safety standards. For example, the plant must achieve 90% removal of biological oxygen demand (BOD) and 90% removal of total suspended solids from the raw wastewater, or effluent levels below 20 parts per million for BOD and 10 parts per million suspended solids, whichever is more stringent. The plant must also have twenty-four hour detention in the aeration chamber and four hours detention in the clarifer. Further, a chlorine chamber contact time of fifteen minutes is required. In addition, DER has issued the permit with certain specific conditions. Among others, these include standards as to effluent chlorine residuals, the requirement that a professional engineer inspect the construction, operation requirements, sampling schedules, defined perameter levels, and the establishment of a hydraulic plant load (permitted maximum daily flow) at 30,000 gallons per day. By issuing the permit, DER has concluded that up to 30,000 gallons per day of sewage effluent can be treated and disposed of by the plant filter fields without violation of applicable DER water quality, health and safety standards. The wastewater treatment plant will be located on a centralized utility site within basin seven of the system. There are also gravity sand filters and a drainfield effluent disposal system located in basin six, which is the northeastern corner of the project. The plant will provide a high degree of treatment and disinfection for the effluent before it is discharged to the filter field. The filtered (treated) effluent will flow by gravity main to the filter fields located in an adjacent basin. Two filter fields will be used in disposing of the treated wastewater effluent. Constructed as sand mounds at a grade level of two or three feet above the existing island elevation, each filter will have dimensions of twenty feet wide and four hundred feet long. The filter fields will be constructed as a bed of gravel wrapped in filter cloth and placed within a mound of soil. A perforated four-inch pipe will be installed within the gravel bed at 5.5 feet NGVD to distribute the effluent through the filter beds. The effluent will then percolate downward and laterally away from the bed and into the groundwater table. At that point, the effluent will become indistinguishable from the groundwater Because the total daily flow will be pumped alternately into one part of the two sections of the drainfield, this allows one filter field to "rest" for a seven-day period during the use of the other filter field, thereby avoiding saturation. Therefore, the average theoretical maximum input into a filter field over a one year period at the plant's maximum capacity is 15,000 gallons per day. The plant was designed and permitted for maximum daily flows at all times of the year. However, the actual operating conditions will reflect significantly less flows due to the seasonality of the population and occupancy levels. More specifically, the plant was designed and permitted for seventy- five dwelling units and ancillary uses with an estimated maximum design flow of 28,450 gallons per day. The approved planned development will contain only forty-two dwelling units and ancillary uses with a maximum design flow of 21,200 gallons per day. Therefore, the permitted plant will treat the wastewater to a higher level due to the reserve capacity, and the plant will rarely be used at over fifty percent of its available capacity. Revised projected wastewater flows will range from daily loads of 2,325 gallons per day during the months of August and September to a high of 15,137 gallons per day during the month of February. This projected usage is consistent with historical occupancy and usage trends in the Naples area which show that occupancy of homes is at its peak during the dry season (the cooler winter months) and substantially lower during the wet season (the hot summer months). Applicants' projected wastewater flows are found to be reasonable and are hereby accepted. In making this finding, the undersigned has rejected the contention by FAS that the daily wastewater flows will be higher than that projected by the applicants and the plant will operate at maximum capacity for sustained periods of time. The system plans reflect that there will be swales within basin six located between one hundred ten and one hundred twenty feet to the west of the filter fields. These swales run parallel along a cart path and flow to the north discharging into an artificial lake at the north end of the project. The swales in this basin have a bottom elevation of 4.5 feet NGVD and decrease to an elevation of 3.5 feet NGVD at the point of discharge into the artificial lake. Adequacy of Separation Between Plant and System Rule 40E-4.091, Florida Administrative Code, adopts and incorporates by reference a document known as the "Basis for Review for Surface Water Management Permit Applications within the South Florida Water Management District - September 1989" (Basis for Review). Section 3.2.2.8 of the Basis for Review reads as follows: Sewage treatment percolation ponds. Above ground pond dikes shall not be within 200 feet of water bodies or 100 feet of dry detention/ detention areas. Additional calculations by the applicant may be necessary in unusual cases requiring deviations from these dimensions. The purpose of the above section is to provide adequate separation between above-ground percolation ponds and surface water management systems in case the percolation pond dike fails. For example, above grade percolation ponds contain large volumes of sewage treatment plant effluent. If a pond dike should fail, a large portion of effluent would be quickly released into the adjacent ground. The minimum 100-foot separation is designed to provide adequate distance for percolation into the ground prior to infiltrating the surface water management system. However, filter fields contain lesser volumes of effluent than do percolation ponds, and should a filter field fail, the effluent will trickle out the side of the field with a much lower rate of effluent release than from a failed pond dike. In accordance with the District rule, applicants have proposed to locate the surface water management system more than one hundred feet from the wastewater treatment plant and filtration beds. Even though the rule standards have been met, the purpose of this remand proceeding is to determine whether that amount of separation is adequate to prevent adverse impacts to the water quantity and water quality functions of the system from the operation and location of the filter fields. The Computer Models As a part of their application filed with DER in 1989, applicants' witness Missimer prepared and submitted a report known as "Hydrogeologic Characteristics and Hydraulic Modeling for Effluent Disposal at Keewaydin Club". The report was based on a computer model known as "Modflow" and was designed to show the increase in elevation of the water table for a loading rate of 30,000 gallons per day alternating between the two filtration beds. The purpose of the modeling analysis filed with DER was to investigate whether the plant would continue to discharge effluent to the drainfields under the most extreme conditions. The model demonstrated that the effluent discharge would not be impaired even under conditions that are beyond any reasonable or probable operating conditions. After reviewing the model, DER accepted those results and issued a permit. Utilizing in large part the underlying assumptions and parameters of the Missimer model, and without performing any independent field evaluation on the site, FAS witness Chin ran the model to investigate the impact of the operation of the plant on the system. Because the model used by Dr. Chin was not constructed for the design of a surface water management system, but rather was constructed for the purpose of designing an adsorption field, without modification it provided a more than worst case scenario of impacts associated with the operation of a plant. In this case, Dr. Chin utilized the ultra- conservative assumptions used in designing the adsorption field and made no revisions to the model. Thus, it is found that the model as used by Dr. Chin, and any conclusions drawn from the model alone, are not a sufficient or reasonable basis for evaluating the impact of the plant on the system. The model used by Dr. Chin is not representative of the natural occurring conditions on the island or the reasonably expected plant flow rates. Moreover, in developing the worst case scenario, as opposed to reasonable expectations, both the Chin and Missimer models incorporated the simultaneous occurrence of certain conservative assumptions including an impermeable flow boundary, a year round wet season water table elevation, a conservative rate of transmissivity, and a constant rate of evapotranspiration. The use of these assumptions caused the model output to grossly overstate the effects of the plant on the system in the following manner. First, by assuming a flow barrier on the island, the model had the effect of overestimating the height of the groundwater mound from operation of the plant than would occur if no boundary were used. Second, the assumption of a year-round wet season groundwater level is unrealistic since groundwater levels fluctuate seasonally, receding to near zero NGVD on the island during the dry season. Thus, the model overestimated the height of the groundwater level. Further, by using only the upper ten feet of the water table aquifer in calculating the rate of transmissivity, the model incorporated a much lower rate than would be attained had the entire thickness (74 feet) of the aquifer been used. This also resulted in an over-estimation in the height of the mound from the operation of the plant. Finally, by assuming a constant rate of evapotranspiration, the model "grossly exaggerated" the impact to the groundwater level from operation of the plant. In reality, as the water table increases, the loss of water from evapotranspiration increases significantly and constitutes a major output of a water budget. Besides the foregoing assumptions, the Chin model also assumed a continuous loading rate of 30,000 gallons per day for a period of up to one year. While the District should properly consider the permitted flow rate of the plant in evaluating a worst case of potential impact, there was no evidence substantiating any likelihood of the plant actually producing 30,000 gallons per day for 365 consecutive days in conjunction with all other conservative assumptions discussed above. The more reasonable and accepted method of analyzing the impact of plant flows is to examine the peak month's average day flow over a six-month period. As noted earlier, for the proposed forty-two units, the peak day flow is estimated to be approximately 21,200 gallons per day. Therefore, it is highly probable that actual flow rates will be much lower than the maximum plant capacity of 30,000 gallons per day. By failing to use the more reasonable and realistic reduced flow rates, the Chin model overestimated the elevation of the groundwater level from the operation of the plant. In contrast, the Missimer analysis demonstrates that it is extremely unlikely that the plant output will ever elevate groundwater to the extent that it would reach the system swales by either surface water or groundwater flow. The foregoing modeling assessments, including the criticisms of the Chin model, were concurred in by the District expert. Water Quantity Impacts There is no credible evidence to support a finding that the operation of the plant will adversely impact the ability of the system to provide adequate flood protection and drainage. Indeed, the more credible evidence shows that an alteration of existing drainage patterns will not occur by virtue of the operation of the plant, and the post-development discharge rates will not exceed the pre-development discharge rates. Therefore, the undersigned's previous finding that applicants have provided reasonable assurance that the the system provides adequate protection and drainage is not altered after considering the operation and location of the plant. There is insufficient credible evidence to support a finding that the plant's operation will adversely impact the system functions in such a way as to cause adverse water quantity impacts on receiving waters and adjacent lands. Indeed, the post-development discharge rate approximates the pre-development discharge rate on receiving waters, the ultimate receiving water body (the Gulf of Mexico) has an infinite capacity to receive water, and there are no adjacent lands subject to flooding from discharge of the system regardless of whether there is any impact of the plant on the system. There is no credible evidence to support a finding that the plant will cause the system to have an adverse impact on surface and groundwater levels and flows. Rather, the more persuasive evidence shows that the plant's operation will not result in groundwater elevation in the area of the system that would cause the impoundment of water or prevent the percolation of water into the soil. In addition, the overflow levels for control structures will operate as designed to insure against over-drainage or flooding. Finally, the operation of the filter fields will not cause adverse impacts on surface and groundwater levels and flows. Water Quality Impacts The operation of the plant will not impair the water quality functions of the system. This is because the swales will continue to detain the first flush of run-off allowing the majority of the suspended solids and other pollutants to settle out regardless of the operation of the plant. Further, in the unlikely event the treated wastewater effluent reached the system, it would be indistinguishable from the stormwater or rainfall due to the high level of treatment from the plant, the filter fields and dilution from groundwater and rainfall. The operation of the plant will not cause adverse water quality impacts on the receiving waters. In making this finding, the undersigned notes initially that the plant is permitted by DER, and therefore it is assumed to comply with all DER water quality standards. Second, there is no evidence that the system will impact the operation of the plant. In the event the groundwater mixed with treated effluent resurfaces, there would be no adverse impact to the surface water quality. This is because the treated effluent from the plant exceeds state water quality standards. Once the treated effluent becomes a part of the groundwater, it is unlikely that it will resurface again in the areas of the swales, which are more than one hundred ten feet away. Indeed, in order for the groundwater with effluent to travel that distance, it would have been in the groundwater system for at least one hundred days. This period of time is more than sufficient for the denitrification and adsorption processes to remove all nutrients. Even if the worst case scenario became a reality and the groundwater reached the swale bottoms, it would only result in a wetting of the ground and would not be of sufficient quantity to create a flow of water in the swale to travel off-site impacting a receiving water. In any event, at that point, any groundwater resurfacing that distance away would no longer be effluent. Finally, during abnormal conditions, such as a hurricane or large storm event, the groundwater may rise to the surface and mix with the surface water and enter the system. However, any effluent already significantly diluted under normal circumstances would be indistinguishable from the stormwater or rainfall. Adverse Environmental Impacts There is no credible evidence that the operation of the plant filter fields will adversely impact the system in such a manner as to cause an adverse environmental impact. In so finding, the undersigned rejects the contention that the system will act as a conduit for treated effluent to travel off-site to the ponds, marsh, mangrove areas or receiving waters. The evidence shows that the design of the filter fields and high permeability of the island soils will prevent the surface flow of effluent to the system swales. The elevation of the swales above the groundwater table level will prevent the introduction of effluent into the swale system. In the unlikely event the groundwater reaches the bottom elevation of the swale, there would be no significant environmental impact because the quality of effluent would be indistinguishable from the groundwater due to the high level of treatment and dilution, and such water would still be further treated by the system before discharge to receiving bodies. The location of the plant and system will not have an adverse impact on the gopher tortoise population on the island. Rather, the system should enhance the gopher tortoise population by providing mananged land with vegetation suitable for gopher consumption. Further, the general development on the island will reduce the number of raccoons which prey on gopher eggs and young gophers. Miscellaneous During the remand hearing, FAS presented evidence concerning the impact of tides and mean sea level rise and saline lakes on the island. This evidence was essentially the same as that presented in the prior hearing and was rejected in favor of the more credible evidence presented by the applicants on this issue. Nothing was presented during the remand hearing which would alter these prior findings. During the hearing, and in response to a question by District counsel, witness Missimer agreed it would not be unreasonable to install a few monitoring wells to insure that the system is operating properly. Because this requirement is not unreasonable, will serve a valuable purpose, and has been utilized by the District as a special condition on numerous prior occasions, it should be incorporated into the permit conditions. Even though the evidence clearly shows that seasonal tidal fluctuations would not have an adverse impact on the functioning of the system, if such a tidal incursion were to occur, the placement of a check valve device on the water control structures would prevent sea water from flowing back into the system. Such a device would be a minor addition to the system, would not otherwise affect its design, and if deemed necessary by the District, should be incorporated into the permit conditions. Prior to hearing, the District retained the services of an outside consultant to assist it in preparation for trial. The consultant did not testify at final hearing and prepared no reports. He did make several computer runs, none of which are a part of this record. Among other things, District witness Rogers relied upon the computer runs in formulating his opinion on the issue presented on remand.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting the requested permit in accordance with the agency's proposed agency action dated March 28, 1990. DONE and ENTERED this 22 day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22 day of March, 1991.
Findings Of Fact Lake Worth Drainage District requested a variance from the provisions of Rule 17-3.121(13) , Florida Administrative Code, related to dissolved oxygen parameters which would be involved in the installation of a canal known as the S-9 Canal to be located in Palm Beach County, Florida. That request was met by the Department of Environmental Regulation's Statement of Intent to Deny, leading to a request for formal hearing filed by Petitioner with the Department on May 26, 1983. On June 1, 1983, the Department requested the Division of Administrative Hearings to conduct a formal hearing in that matter. The variance request became D.O.A.H. Case No. 83-1741. Contemporaneous with the variance request that was pending before the Department of Environmental Regulation, was petitioner's request for necessary construction permits to install the S-9 Canal. Again, the Petitioner was informed of the agency's intent to deny that permit request. As a consequence, Petitioner requested a formal hearing to question the Department's policy decision. That request for formal hearing was made on June 23, 1983. Effective July 1, 1983, the Department asked the Division of Administrative Hearings to conduct a formal hearing related to that permit request. The case related to the dredge and fill permit is D.O.A.H. Case No. 63-2132. WITNESSES AND EXHIBITS In the final hearing, petitioner presented the testimony of Richard Wheeliahn, Assistant Manager for Lake Worth Drainage District; John Adams, General Counsel for Lake Worth Drainage District; Mike Slaton, supervisory biologist with the United States Corp. of Engineers; William Winters, Lake Worth Drainage District's in-house engineer; Rebecca Serra, South Florida Water Management District's Water Management Engineer, who was accepted as an expert in water management engineering; Raleigh Griffis, Agricultural Agent with the United States Department of Agriculture, accepted as an expert in the agricultural practices found within the area of the proposed S-9 Canal; William E. Hill, Consulting Engineer for Petitioner, who was accepted as an expert in civil engineering and drainage design; and Robert D. Blackburn, consultant to Lake Worth Drainage District, accepted as an expert in freshwater ecology to include water quality and biology. Respondent called as witnesses Dan Garlick, Environmental Specialist for the Department of Environmental Regulation, accepted as expert in dredge and fill matters; Keith McCarron, Environmental Specialist for the Southeast Branch of the Department of Environmental Regulation, accepted as an expert in dredge and fill matters and Helen Setchfield, Technical Assistant to the Department's Director of the Division of Environmental Permitting. In addition, Richard L. Miller, Rebecca Butts, Francis T. Kuschell, Donald King and Dan alley were public witnesses in favor of the proposed project. Rosa Druando and Sherry Cummings were public witnesses opposed to the project. Petitioner offered 45 exhibits which have been received. Respondent introduced two exhibits which were admitted. The public offered two composite exhibits which were admitted. SPECIFIC FACTS Lake Worth Drainage District is a governmental entity created by the Florida Legislature. The District's function is that of the control of water supply and elevation related to lands within its jurisdiction. Those areas in dispute in the present case are within that jurisdictional ambit. In this instance, Lake Worth Drainage District has proposed the construction of a drainage facility involving dredging and filling of approximately 45,000 cubic yards of material. In particular, Petitioner seeks necessary permits from Respondent to construct a canal known as the S-9 Canal, whose purpose would be to transport the flow of water from an agricultural operation north of the canal site. Petitioner's Exhibit No. 1 depicts the area in question with the north- south orange tape representing an unnamed drainage ditch or canal and the blue tape showing the proposed S-9 connecting it to the east-west orange tape line which is L23W. The primary type of water expected in the canal is stormwater; however, surface and groundwater will also be in the canal system at times. The agricultural operation is capable of discharging at a rate which would utilize 145 CFS of the potential capacity of the canal system contemplated for construction which ultimate capacity is 170 CFS. The proposed canal by its connection of the existing agricultural drainage ditch or canal and L23W, becomes part of a water transport system flowing to the Atlantic Ocean through the South Florida Water Management District and Lake Worth Drainage District canal network. The principal benefit of the construction of S-9 would be to create a uniform connection of water discharge from the agricultural operation into L23W. Secondarily, it would relieve periodic flooding of a residential area west of the unnamed drainage ditch and northwest of the proposed S-9 Canal. It is not designed to receive direct water input from that residential area. Only the agricultural operation has been granted permits to discharge into the unnamed canal through two pumping stations to the east of that canal and as a result of the present permit request through S-9 and thus to L23W. Those persons living in the residential area west of the unnamed canal have not sought necessary permitting for discharge into the proposed S-9 System. Moreover, even if permits were granted to the residents, the S-9 system would only allow the addition of 25 CPS over and above the 145 which the agricultural operation has preempted. The 25 CPS would not satisfactorily address high water problems found in the residential area. A more particular description of the limited value of the project's benefit to the homeowners is that it protects against occasional flooding which occurs when the farm operation discharges into the unnamed canal, causing water incursion in the southeast corner of the residential area to the west of the unnamed canal. If the S-9 Canal is constructed, it will be built within an 80 foot right-of-way held by petitioner. The canal as depicted in petitioner's Exhibit 35 admitted into evidence is 40-45 feet wide, approximately 5-8 feet deep and is configured in a u-shape transversing an area of 7,730 feet. The applicants in this present proposal have added a vegetated iittoral zone on one side of the canal and it covers approximately 20 percent or 1.9 acres of the canal surface. This zone affords a limited amount of treatment of the water in the system. In this regard, approximately 30 percent of the nutrients found within the water flowing in the system would be expected to be taken up or absorbed in the vegetational zone, except in the months of August and September, when optimum retention time within the system will not be afforded to allow the littoral zone to uptake 30 percent of contaminants in the water. A 21 foot maintenance berm would be constructed on the east side of the canal and bleeder pipes would be installed to control water elevations in the adjacent wetlands. The 170 CFS volume mentioned before is the design capacity of the proposed system. At that volume, the flow velocity is less than 2.6 feet per second, a velocity at which the canal's structural integrity would be expected to continue, i.e., erosion will not occur. The 145 CFS expected from the agricultural operation pursuant to permits for discharge issued by the South Florida Water Management District would promote a flow velocity of approximately 2 feet per second. This farm activity is known as the DuBois farm. (Its permit from the South Florida Water Management District allowing the 145 CFS to be discharged into the unnamed drainage ditch or canal is not contingent upon the construction of S-9.) The configuration of the S-9 Canal has been brought about principally to advantage the Petitioner in obtaining a construction permit from the United States Corps of Engineers. The Corps had an interest in protecting that corridor of land over which it has jurisdiction which is adjacent to the S-9 Canal and is described as a wetland area. A consequence of this choice of design for S-9 is the typical 72 to 80 hour travel time of water introduced into the system providing some settling of pollutants and some assimilation of pollutants within the littoral zone of the canal discussed before. 10..Necessary permits have been obtained from South Florida Water Management District and the United States Corps of Engineers to allow the construction of the proposed project. The configuration of this project takes into account the special concerns of those two agencies. In this sequence of collateral permitting, South Florida Water Management District has been responsible for an examination of stormwater quality considerations in deciding to grant a permit to Petitioner. With the construction of S-9 and connection of the unnamed canal to S- 9 and thus to L23W, all the waters within that conveyance system become Class III waters of the state in keeping with Chapter 403, Florida Statutes and its associated rules of the Florida Administrative Code. In effect, this is a dredge and fill activity under the Respondent's jurisdiction found in Rule 17- 4.20, Florida Statutes. As such, it becomes a stationary installation which can reasonably be expected to be a source of water pollution of waters of the state by discharge of pollutants into waters of the state as envisioned by Section 403.087, Florida Statutes. During the construction phase of the canal, water quality degradation can be controlled related to turbidity, transparency and other criteria. Upon connection of the S-9 Canal to L23W and the utilization of that system, problems will be experienced with dissolved oxygen levels and to a lesser extent, nutrients and total coliform. Oils and greases problems are possible though not probable. No other water quality impacts are expected after connection. In expectation of the difficulty in achieving compliance with Respondent's water quality standards related to dissolved oxygen, the Petitioner has sought a variance under Section 403.021, Florida Statutes. This request is necessary because the dissolved oxygen levels in the proposed S-9 Canal, the unnamed canal or drainage ditch and L23W are not expected to uniformly exceed 5 mg/1. See Rule 17-3.121(13), Florida Administrative Code. The problem with dissolved oxygen in the unnamed canal and L23W and expected in the S-9 canal is not an enigma. This condition is prevalent in the South Florida area to include Palm Beach County, the site of the project. The water in the canals and drainage ditches in the region is frequently in violation of the standards related to dissolved oxygen, given the elevations of the land, climatic conditions, type of plant life, water temperature and constituents of the water. The addition of S-9 to the system would neither improve nor significantly degrade the quality of water related to the dissolved oxygen values for Class III waters, of which this proposed system is constituted. This finding acknowledges the fact that dissolved oxygen values in the unnamed canal are superior to L23W. Nonetheless, upon completion of S-9 and connection to the two other canals, no significant positive improvements of dissolved oxygen will be realized. Moreover, considering the fact that the installation of the S-9 Canal will stop the flooding on the southeast corner of the residential area west of the unnamed drainage ditch or canal, an increased volume of water flowing into L23W at any given moment can be expected, compared to the present outfall primarily along the Florida Power and Light system road into L23W. This has significance related to the dissolved oxygen standard to the extent of an increased volume of water in which substandard dissolved oxygen levels are found being introduced into L23W. It is more significant related to nutrients and bacteriological quality of the water, in particular fecal coliform. While there is no reason to believe that the quality of cleansing of water involved in sheet flow into L23W related to nutrients and coliforms is remarkably better at present, given the sparse vegetation along the power-line road which leads to L23W, than would be the case with S-9 with littoral zone, the increased volume of cater being introduced at the connection of S-9 and L23W during times of peak discharge, can be expected to present greater quantities of nutrients and coliform. In essence, the treatment afforded by the littoral zone and the transport in the S-9 Canal, contrasted with the treatment afforded during the transport of waters by sheet flow along the relatively barren stretch of land adjacent to the power-line road is found to be comparable, and the differences relate only to volume of discharge. This difficulty with nutrients and coliform count has been confirmed by tests made in the unnamed canal showing excessive levels of nitrogen, phosphorus and coliform and the water treatment features of the S-9 Canal will not entirely remove these materials. Although the farming practices of the DuBois operation tend to alleviate some nutrient loading in the unnamed canal, the test results established that those practices do not entirely eliminate the introduction of those nutrient materials into the canal. Consequently, some problems related to the effects of nutrient loading on populations of flora and fauna in the proposed system can be expected. In the context of the variance request, alternatives to the construction of the S-9 Canal are here considered. The alternative to leave the circumstance as it now exists carries with it the risk of periodic flooding of the southeast corner of the residential property west of the unnamed canal. That area and the balance of the residential acreage are subject to flooding without regard for the agricultural operation to the east. To deal with the difficulty related to the elevated water table, rainfall events and the flooding due to farm operation, some persons who reside in that residential tract have employed their own pump systems and ditches and retention areas to combat problems related to the geography of their property. In addition, the property is protected to some extent from outside influences by the existence of a dike and associated ditch, which limit some off-property incursion of water and assists to an extent in the transport of water away from their property. Moreover, the DuBois farm operation recently has placed a barrier at the end of the unnamed canal which directs water south along the Florida Power and Light road into L23W. In addition, the farm management has held down the pump speed during a rain event to protect the residential area. Nonetheless, at times the dike in the southeast corner adjacent to the residential property has breached in heavy rain events. As an alternative, the installation of S-9 would be only partially effective in alleviating the adverse conditions in the residential area west of the unnamed canal. It principally helps the DuBois farm operation. The relief afforded the residents would be the cessation of flooding caused by the operation of the farm pumps to the east as they breach the area in the southeast corner of the residential property, the future possibility of introducing as much as 25 CFS into the S-9 System subject to appropriate permits and the more tenuous possibility that the farm operation and the residential area could share the remaining 145 CPS capacity in the proposed system. The latter point isn't tenable from an examination of testimony at hearing. First, because the farmer wishes to conserve fertilizer and to maintain the moisture gradient and he does this by pumping off stormwater in a rainfall event, which events are most prevalent during his agricultural season. Secondly, the residential area is most in need of relief when the farmer is. Finally, the question of necessary permits to share capacity is unclear. Other alternatives related to a more comprehensive protection of the residential area by diking, a direct connection canal system to L23W from the unnamed canal, or dispersed sheet flow through the wetland area adjacent to the proposed S-9 Canal are not viable either for reason of design infirmity or impediments from other permitting agencies or inadequate property rights. Therefore, the viable choices are to either leave the property as it now stands or grant a permit to allow the construction of S-9. Between the remaining choices, no particular advantage is gained by the construction of this project. Dissolved oxygen problems in L23W, the receiving body of water, will not improve with the S-9 construction in a significant way and given the increased volume of discharge into L23W promoted by this construction are made worse. Nothing in the construction is so compelling to cause the exercise of the Respondent's discretion in favor of the grant of a variance related to dissolved oxygen values. 16..In examining the variance request by affording deference to Petitioner's regulatory responsibility, the need of the Lake Worth Drainage District to provide relief to those residents who are paying for drainage services is conceded. To that end, the proposed project does provide a certain amount of relief but it does not have as its primary emphasis purported assistance to those residents. As often stated, its principal benefit is to the DuBois farm operation. Left unresolved is the major source of suffering which is the lay of the land, a source which has prevailed from the beginning of the utilization of that property on the part of the residents. Plainly stated, much of the residential area was from the beginning and continues to be under water. The removal of the farm flooding and the future possibility of introducing a small increment of discharge into the S-9 system from the residential area subject to necessary permitting does not modify the characterization of this project as being one primarily for the farmer and to a much lesser extent for the residents. On this occasion, Petitioner's choice to fulfill its change is not persuasive enough to create special permission to violate the dissolved oxygen standard. In summary, a variance from the dissolved oxygen standard for Class III waters is not indicated. On the question of the permit application, in addition to failing to give reasonable assurances related to dissolved oxygen, the applicant has failed to satisfactorily address the problems with nutrients and coliforms. Other water quality standards have been satisfactorily addressed. Again, most of the water that will be introduced into the proposed system shall be stormwater; however, there will be other water components in the system constituted of surface water an groundwater, which also carry nutrients arid bacteriological deposits. Surface and groundwater are involved, given the level of elevations in the area, the depths of the unnamed canal, S-9 Canal and L23W and the fact that the DuBois farm operation can extract waters from the E-l Canal to the east of the farm properties as well as discharge water into that canal. It will not always be possible to distinguish whether the water in the proposed system is stormwater, groundwater or surface water. Consequently, South Florida Water Management's permitting related to stormwater is not definitive.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The SFWMD is a public corporation in the state of Florida existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 573, Fla. Stat., and Title 40E, Fla. Admin. Code, as a multi-purpose water management district, with its principal office in West Palm Beach, Florida. The Navy has proposed construction of a naval housing facility on the Peary Court site (the "Site") in Key West, Florida. The Site is approximately 25.89 acres and will provide 160 housing units for junior enlisted Navy and Air Force personnel and their families. The Site is the center of a larger, 37 acre drainage basin. The Site was formerly the location of military housing. However, for the past 18 years, the Site had been used by the City of Key West, with the assent of the Navy, for active and passive recreation for city residents. The Site contains a cemetery of historic value and a former military housing structure now being used by the Navy Key West Federal Credit Union with an associated parking area of paved asphalt. On February 6, 1992, the Navy submitted an application for a Surface Water Management District General Permit for the Project. The proposed surface water management system (the "System") was designed by Rice Creekmore, a registered professional engineer, and his company Johnson, Creekmore, and Fabray. The proposed System utilizes the existing topography and incorporates a number of drainage control mechanisms to manage the run-off from the Site. The System employs inlets, swales and culverts to direct stormwater run-off into dry detention areas (ponds) for pretreatment prior to discharging into seven 24-inch Class V injection wells (drainage wells). As discussed below, these injection wells must be permitted by the Florida Department of Environmental Regulation ("FDER"). The dry pond areas utilize key ditches, bottom elevation 1.0' NGVD, in order to hydraulically connect all of the dry pond areas together into one dry system prior to overflowing into the drainage wells beginning at elevation 1.5' NGVD. In other words, the detention ponds are interconnected with pipes. The design includes only one point where run-off would be discharged from the Site during any storm equal to a 25 year, three day storm event. That discharge would occur at the lowest point of the Site at the corner of Eisenhower and Palm. The water would be discharged through a V notch weir (the "Weir") into the City's stormwater system. An existing 12" storm drain line at the discharge point will be replaced by a 13.5" by 22.0" Reinforced Concrete Elliptical Pipe culvert. As discussed in more detail below, the System is designed so as to detain 1" of run-off within the dry detention ponds prior to any discharge through the Weir. After review of the application and submittals, the SFWMD issued a Notice of Intent to issue General Permit and Stormwater Discharge Certification No. 44-00178-S (the "Permit") on September 29, 1992. Petitioner and Intervenor timely petitioned for an administrative hearing challenging the SFWMD decision to award the Permit. There is no dispute as to the standing of either Petitioner or Intervenor. The SFWMD has adopted rules that set forth the criteria which an applicant must satisfy in order for a surface water management permit to issue. The criteria are set forth in Rule 40E-4, Florida Administrative Code. Rule 40E-4.301(1)(m) and 40E-4.091(1)(a) incorporate by reference The Basis of Review for Surface Water Management Permit Applications within South Florida Water Management District - April, 1987, ("The Basis for Review"). The Basis for Review explicates certain procedures and information used by the SFWMD staff in reviewing a surface water management permit application. The SFWMD issues general permits for projects of 40 acres or less that meet specific criteria. All other projects must obtain individual permits which are reviewed by the District Board. The specific rules relating only to general permits are set forth in Rule 40E-40. In addition, the Basis for Review sets forth certain technical requirements which must be met for the issuance of a general permit including general construction requirements and special requirements for wetlands. The Basis for Review also sets forth criteria for how a proposed system should address water quantity and water quality issues. The SFWMD assumes that water quantity and water quality standards will be met if a system satisfies the criteria set forth in the Basis for Review. Water Quantity Criteria Rule 40E-4.301(a), Florida Administrative Code, requires an applicant to provide reasonable assurances that a surface water management system will provide adequate flood protection and drainage. The purpose of the water quantity criteria is to insure that pre- development flows and post-development flows are equal. The SFWMD requires calculations of a project's projected post-development flow to guarantee that the post-development discharge rate will not be in excess of the pre-development discharge rate. These calculations are based on a 25 year, 3 day storm event. There is no stormwater management system in place at the Project Site. The pre-development topography results in a pre-development discharge point from the Site at the corner of Eisenhower Drive and Palm Avenue. At this point, a discharge or outfall pipe leads into the City of Key West's stormwater management system. The City's system ultimately discharge into Garrison Bight, a nearly waterbody which is discussed in more detail below. At the time the Navy began planning for the Project, the Navy was told that the discharge pipe had a capacity of accepting water at a rate of 40 cubic feet per second ("CFS"). The Navy initially designed a system to utilize this capacity. Subsequently, it was discovered that, due to the size of the pipe at the discharge point and the capacity of the pipes downstream in the City of Key West's stormwater management system, the City would not allow or accommodate a discharge of more than 11 CFS from the Site. Thus, the System had to be redesigned so that the discharge to the City's system would not exceed 11 CFS. The system was redesigned to incorporate the seven (7) Class V injection wells. The injection wells are intended to insure that discharge from the Project into the City stormwater system through the surface water discharge pipe at Eisenhower Drive and Palm Avenue will not exceed 11 CFS. The injection wells introduce treated stormwater into the ground before it reaches the discharge point. The pre-development rate of surface water discharge from Peary Court in a 25 year, 72 hour storm event was 55 CFS. This rate was calculated based upon a site survey, a determination of the existing amount of pervious versus impervious surface area, and a calculation made through a generally accepted civil-engineering computer program. 1/ This predevelopment discharge is the amount of water which would be expected to discharge off-site after percolation occurs. The number and size of the injection wells for the proposed system were determined based upon tests of an on-site twelve-inch fire well. The results of the tests revealed that the on-site test well could manage in excess of 2 CFS. Due to test limitations, the exact capacity could not be measured, but the capacity was clearly more than 2 CFS. These results were then compared with data obtained from the engineering firm of Post, Buckeley, Schuh & Jernigan for installed wells in the Florida Keys of a similar nature and size to the wells in the proposed surface water management system. The Post, Buckeley test results indicated that 24-inch wells had a capacity of 31 CFS. In addition, the design engineer consulted with South Florida Well Drillers, who have drilled other wells in the Florida Keys including 24-inch wells at the Key West airport which were completed shortly before the application for this Project. South Florida Well drillers found the capacity of 24-inch wells in Key West to be in the 25 to 30 CFS range. Based upon the results of the test well and the related reports described above, the project engineer based his design of the surface water management system on an estimated well capacity of 8.4 CFS for each well. These estimates were submitted by the Navy in its application and were appropriately determined to be reasonable by the SFWMD staff. Indeed, the evidence established that 8.4 CFS was a conservative estimate. The seven injection wells, at an estimated capacity of approximately 8.4 CFS each, provide in excess of 56 CFS of well discharge capacity, which is beyond the necessary discharge volume for the Project. Limiting Condition No. 13 of the Permit requires the Navy to obtain a well capacity test from a Florida Registered Professional Engineer or Professional Geologist following the installation of the first Class V injection well at the Site. If the results of this test indicate that the capacity of the well is different than that submitted by the Navy in its application, the Navy must apply for a permit modification to provide a design which incorporates a representative injection well flow-rate and an appropriate number of wells for the Site. In view of the reasonableness of the capacity rates utilized for the wells, it is unlikely that the results of the capacity test will result in any major design change in the proposed surface water management system. The use of the injection wells in the proposed surface water management system will significantly reduce the amount of run-off which would otherwise reach Garrison Bight from the Site. After the System is completed, it is expected that the amount of run-off from the Site that will reach Garrison Bight will be only 20 percent of the predevelopment amount. In addition, because there has previously been no management of the run-off from the Site and surrounding areas, there has been a frequent flooding problem at the corner of Eisenhower Drive and Palm Avenue after heavy rain storms. The proposed surface water management system will accommodate the overflow of water which historically occurred when discharges from Peary Court and the surrounding areas could not be accommodated by the Key West storm water management system. Petitioner and Intervenor suggest that the effect of tidal flow on the capacity of the wells was not fully considered. The evidence established that the design engineer considered normal high tides in calculating groundwater elevations. Respondent's engineering experts have concluded that the proposed surface water management system is effectively designed to accommodate the Florida Keys' tidal flows. Petitioner and Intervenor offered no expert testimony to refute this conclusion and/or to establish that the tides would impact the effectiveness of the proposed surface water management system. In the event that an extremely high tide occurs at the time of a storm, the detention ponds may hold standing water for a short time. This water would not be discharged off-site. There is no evidence that tidal influences would in any way adversely affect the System's ability to uptake pollutants in the "first- flush". The Class V shallow injection wells are an integral part of the proposed Peary Court surface water management system. Without the injection wells it is not clear whether the Project could meet the SFWMD water quantity criteria. The SFWMD does not have authority to permit Class V injection wells. FDER must permit those wells. The Peary Court site is not the first Florida Keys' project permitted by the SFWMD which utilizes injection wells. The surface water management permits for the other projects were issued contingent upon obtaining the necessary permits for the injection wells. Special Condition No. 14 of the Permit provides that the Permit is conditioned on the Applicant obtaining the applicable permits from FDER for the injection wells. During the interim while the Navy is seeking the FDER permits, it should be required to retain all run-off on-site. If the Navy is not able to obtain the necessary FDER permits for the injection wells, the Navy should be required to either retain all run-off on-site or propose an alternate design to meet the SFWMD's water quantity requirements. A modified permit application with a new Notice of Intent should be required for any alternate design. The following Special Condition Number 14 was offered by the SFWMD at the hearing (language revised from original condition is highlighted and underlined): THIS PERMIT IS ISSUED BASED ON THE APPLICANT OBTAINING THE NECESSARY CLASS V INJECTION WELL PERMITS FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION (FDER). THE PERMITTEE SHALL SUBMIT AN APPROVED CLASS V DRAINAGE WELL PERMIT FROM FDER PRIOR TO OPERATION OF THE SURFACE WATER MANAGEMENT SYSTEM. IN THE INTERIM, THE PERMITTEE SHALL CERTIFY TO THE DISTRICT THAT NO OFF-SITE DISCHARGE WILL OCCUR UNTIL THE APPROVED CLASS V DRAINAGE WELLS ARE IN OPERATION. IF THE SURFACE WATER MANAGEMENT SYSTEM DESIGN MUST BE MODIFIED AS A RESULT OF FDER REQUIREMENTS OR IF THE CLASS V INJECTION WELL PERMITS ARE NOT ISSUED, THE APPLICANT SHALL APPLY FOR A PERMIT MODIFICATION TO PROVIDE A SURFACE WATER MANAGEMENT SYSTEM DESIGN WHICH SHALL MEET DISTRICT CRITERIA IN EFFECT AT THAT TIME. The proposed additional language requires the Navy to certify that no off-site discharges will occur until the injection wells are permitted and are operating. This revised language should be added to Special Condition No. 14 to clarify that the injection wells must be in operation prior to any off-site discharge from the surface water management system. Maintenance of the surface water management system entails upkeep of the dry detention areas and routine grass cutting, as well as inspection of the injection wells on a periodic basis to guard against clogging and reduced capacity. The system is essentially designed to operate without direct surveillance or intervention. Injection wells do not require any additional maintenance over and above that which is routinely required for other types of surface water management systems. The injection wells will require routine maintenance to ensure that manholes and inlets do not become clogged. Limiting Condition No. 8 of the Permit requires that the surface water management system, including the injection wells, be maintained. At the hearing, the SFWMD proposed that a condition be added to the Permit to further clarify the maintenance requirements. A condition requiring long-term maintenance would be desirable and reasonable. A new special condition should be added to the Permit requiring long-term maintenance of grass swales and inspections of injection wells for clogging. Acceptable language for such a condition would be: SPECIAL CONDITION NO. 15 The permittee shall provide long-term maintenance of the surface water management system, encompassing the injection wells, including, but not limited to, (a) maintenance of the vegetation in the grass swales and detention ponds and (b) routine inspections of wells and discharge structures for clogging. Water Quality Criteria As noted above, there is no designed system for surface water management and/or water quality pretreatment at the Site in its undeveloped state. Surface water run-off that can not be managed by the City of Key West's storm water management system collects in roads adjacent to the Site, resulting in adverse water quality and quantity impacts to adjacent land and receiving waters. The applicable water quality criteria, contained in Rule 40E-4.301, Florida Administrative Code, require an applicant to provide reasonable assurances that a surface water management system will not cause adverse water quality impacts to receiving waters and adjacent lands, and will not cause discharge which results in any violation of the standards and criteria of Chapter 17-302 for surface waters of the state. Rule 40E-4.301 provides that: In order to obtain a permit under this chapter, an applicant must give reasonable assurances that the surface water management system is consistent with the State Water Policy as set forth in Chapter 17-40, Florida Administrative Code (40E-4.301(1)(h), Florida Administrative Code. Rule 17-40.420 provides in pertinent part: Minimum Stormwater Treatment Performance Standards. When a stormwater management system complies with rules establishing the design and performance criteria for stormwater management systems, there shall be a rebuttable presumption that such systems will comply with state water quality standards. The Department and the Districts, pursuant to Section 373.436, Florida Statutes, shall adopt rules that specify design and performance criteria for new stormwater management systems which: 1. Shall be designed to achieve at least 80 percent reduction of the average annual load of pollutants that would cause or contribute to violations of state water quality standards. The Basis for Review, which is incorporated into Title 40E, Florida Administrative Code, by reference, further delineates the applicable water quality permit criteria for surface water management systems. Regarding water quality criteria, the Basis for Review provides: 3.2.2.1 State standards - Projects shall be designed so that discharges will meet state water quality standards, as set forth in Chapter 17-3 [revised to 17-302], Florida Administrative Code. The SFWMD's water quality criteria do not require chemical testing of stormwater for residential projects. The SFWMD's water quality criteria require that the design of a surface water management system meet applicable design/technology based criteria. Section 3.2.2.2 of the Basis for Review contains the specific water quality criteria for the design of a surface water management system. The SFWMD allows applicants to design their surface water management system using either dry or wet detention or dry or wet retention, so long as the treatment provided by the system meets water quality and quantity criteria. Dry detention consists of a system of grass swales and vegetative- covered ponds which detain water at a predetermined rate prior to off-site discharge. Wet retention can contain canals, ditches, lakes or ponds to retain water on-site. If a system is designed to meet the criteria specified in 3.2.2.2(a) of the Basis for Review and incorporates Best Management Practices ("BMP's") for the type of system proposed, the SFWMD presumes that water quality standards will not be violated. In determining which system is appropriate for a particular site, water quantity (flooding impacts) and water quality impacts must be balanced. In some cases, water quantity concerns may preclude certain types of water quality treatment methods. At the hearing in this case, Petitioner and Intervenor suggested that retention is superior to detention in designing surface water management systems. The evidence presented in this case was insufficient to support this conclusion. In any event, this contention focuses only on water quality considerations. One drawback to retention is that it may have on-site flooding impacts. With respect to this Project, the evidence indicates that retention may not have been an acceptable alternative because of possible adverse water quantity impacts. The Navy's proposed surface water management system was designed to utilize dry detention with filtration for treatment of surface water prior to discharge into the injection wells and/or off-site. The design uses a system of grass swales and grass-covered detention ponds to detain and filter pollutants from the surface water as it makes its way through the dry detention system. The System is designed to utilize as many grass swale areas as possible to filter or treat the surface water before it reaches the detention ponds which provide further treatment. The swales restrict the flow of water to approxmiately one half to one foot per second which allows for percolation and a tremendous amount of filtration. The System utilizes the natural topography of the Site to direct water through the dry detention system to the lowest point of the Site at the corner of Eisenhower Drive and Palm Avenue. Any water which makes it to this last detention pond and is not drained into one of the injection wells can flow through the discharge structure (the Weir) at 11 CFS and ultimately make it into Garrison Bight. Petitioner and Intervenor have suggested that the design of the proposed System is defective because water discharged from the cul-de-sacs in the Project design will flow directly into detention ponds without passing over any of the grass swales. The permit criteria do not specify that all surface water must contact grass swales prior to reaching a detention pond. While greater filtration is achieved the longer the run-off remains in the system, the evidence established that the detention ponds by themselves provide sufficient water quality treatment. With respect to all but one of the cul-de-sacs, the water must pass through at least two detention ponds before it is discharged. Run-off from the cul-de-sac closest to the Weir will receive treatment only in the last discharge pond. Petitioner and Intervenor questioned whether the run- off from this last cul-de-sac will receive adequate treatment, in other words, whether the "first flush" will be adequately detained prior to discharge, especially in circumstances when the detention pond is already wet. However, the evidence was insufficient to establish that their concerns are justified and/or that this situation would constitute a violation of water quality standards. This cul-de-sac is only 100 ft in diameter and accounts for no more than 8 percent of the total run-off from the Site. After considering all of the evidence, it is concluded that the water from the cul-de-sacs will be adequately treated in accordance with the permit criteria prior to any discharge. In assessing the Navy's proposed surface water management system the following criteria from the Basis for Review are pertinent in determining whether the proposed System will provide appropriate water quality treatment: 3.2.2.2 Retention and/or detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof. . .: Wet detention volume shall be provided for the first inch of run-off from the developed project, or the total run-off of 2.5 inches times the percentage of imperviousness, whichever is greater. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention. If the receiving waterbody, is a "sensitive receiving water," which would include an Outstanding Florida Water, the following additional criteria regarding direct discharges are applicable: 3.2.2.2 d. Projects having greater than 40 percent impervious area and which discharge directly to sensitive receiving waters shall provide at least one half inch of dry detention or retention pretreatment as part of the required retention/detention. The SFWMD interprets the permitting criteria as creating a rebuttable presumption that a surface water management system that provides detention in accordance with BMP's of the first inch (1") of run-off from a Site, commonly referred to as the "first-flush", will meet state water quality standards. The "first-flush" occurs at the onset of a rainfall when most pollutants run off paved areas and percolate into the grass swales. It is an accepted design parameter that the "first flush" contains 90 percent of the pollutants which will be collected in the run-off. The 90 percent of the pollutants in the first flush are consequently retained on-site through pure percolation and never reach the discharge facility. Although Petitioner and Intervenor suggest that dry detention does not provide this degree of filtration, the evidence was insufficient to support this contention. The proposed System for this Project provides treatment for the first one inch (1") of run-off from the developed Project, thereby meeting the permitting criteria for sensitive receiving waters. Intervenor and Petitioner contend that the development of this Project will necessarily result in a larger amount of pollutants in the run-off from the Site. They argue that the Applicant has not provided reasonable assurances that capturing 90 percent of the increased level of pollutants in the first flush will meet water quality standards. As noted above, compliance with the permit criteria creates a rebuttable presumption that water quality standards will be met. Insufficient evidence was presented to overcome this rebuttable presumption. In calculating the appropriate volume for the dry detention ponds, the Project engineer used the Site's percentage of impervious area. The percentage of impervious area was determined in accordance with SFWMD criteria. The calculations do not account for any percolation from the impervious areas even though much of that run-off will pass through swales and other grassy areas of the Site. In addition, there is a built-in buffer between the berm elevation around the ponds and the expected water level in the ponds. These factors confirm that there is significant additional capacity in the ponds which is an overage or safety net. In sizing the detention ponds, the project engineer also factored in additional off-site water that will be coming on-site from Palm Avenue. This water currently ponds on Palm Avenue contributing to a recurring flooding problem in the area. This off-site water will be routed through an inlet and pumped directly into on-site detention areas thereby reducing flooding on Palm Avenue and providing some treatment for off-site run-off that was not previously treated before entering the City's stormwater system. As noted above, additional water quality criteria requirements apply to projects which discharge to an Outstanding Florida Water. These additional criteria are set forth in paragraph 40 above. Outstanding Florida Water or OFW is the designation given exclusively by the FDER to certain waterbodies in Florida which have special significance, either for ecological or recreational reasons. Outstanding Florida Waters are afforded the highest degree of water quality protection. The criteria for designation of waters as Outstanding Florida Waters is found in Chapter 17-302, Florida Administrative Code. When the SFWMD initially reviewed the Permit application for this Project, it erroneously assumed that Garrison Bight, the ultimate receiving body for the waters discharged from the project through the City stormwater system, was an OFW. Although the SFWMD applied water quality criteria for OFW's when it reviewed the subject permit application, the evidence at the hearing in this case established that Garrison Bight is not an Outstanding Florida Water. A FDER representative, qualified as an expert in the designation of Outstanding Florida Waters, testified that the Outstanding Florida Water designation does not apply to certain waterbodies that were degraded at the time of designation or did not have the significance or pristine water quality that merit special protection. The designation also does not apply to artificial waterbodies. Artificial waterbodies are defined in Rule 17-302.700(9)(i), Florida Administrative Code, as a waterbody created by dredging or excavation or by the filing in of its boundaries on at least two sides. The FDER has formally determined that Garrison Bight is not an Outstanding Florida Water because Garrison Bight is an artificial waterbody in accordance with the definition. Furthermore, Garrison Bight is the site of extensive boating and marina activities. The water quality of Garrison Bight is currently degraded in comparison to ambient conditions and offshore/unconfined water. In sum, the evidence established that proposed surface water management system meets or exceeds the current permit criteria. Consequently, the water flowing into Garrison Bight from the Site will be significantly less and much cleaner after the proposed surface water management system is installed than it currently is without a designed surface water management system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered approving the issuance of Surface Water Management General Permit No. 44-01785 in accordance with the Notice of Intent dated September 29, 1992 and the additional conditions noted in this Recommended Order. DONE AND ENTERED this 14th day of May, 1993, at Tallahassee, Florida. J. STEPHEN MENTON 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 14th day of May, 1993.
The Issue The issue to be determined in this case is whether Respondents, United States Sugar Corporation (“USSC”), Sugar Farms Co-op (“SFC”), and Sugar Cane Growers Cooperative of Florida (“SCGC”) (collectively “the Applicants”) are entitled to the Everglades Works of the District permits (“WOD Permits”), issued to them by the South Florida Water Management District (“District”).
Findings Of Fact The Parties Audubon is a not-for-profit organization dedicated to restoring and conserving natural ecosystems, focusing on birds and their habitats. Audubon has a substantial interest in the protection of the Everglades and other ecosystems in the area. Audubon’s interest is affected by the proposed agency action because the WOD Permits authorize agricultural discharges that affect these ecosystems. The District is a Florida public corporation with the authority and duty to administer regulatory programs in chapter 373, and Florida Administrative Code Title 40E, including a program for regulating discharges from the Everglades Agricultural Area (“EAA”) into works of the District. The EAA is located south of Lake Okeechobee and comprises about 570,000 acres. The majority of EAA agriculture is sugarcane, with some row crops, such as radishes, leafy vegetables, and corn, and turf sod. During fallow periods, rice is also grown. The Applicants are owners and lessees of agricultural lands in the EAA. Background Some essential background for this case is set forth in rule 40E-63.011: The Everglades is a unique national resource. It has a high diversity of species, and provides habitat for large populations of wading birds and several threatened and endangered species, including wood storks, snail kites, bald eagles, Florida panthers, and American crocodiles. Large portions of the northern and eastern Everglades have been drained and converted to agricultural or urban land uses. Only 50% of the original Everglades ecosystem remains today. The remainder is the largest and most important freshwater sub-tropical peatland in North America. The remaining components of the historic Everglades are located in the Water Conservation Areas (WCAs) and Everglades National Park (ENP). ENP and Loxahatchee National Wildlife Refuge (WCA 1) are Outstanding Florida Waters, a designation which requires special protection for the resource. Large portions of the Everglades ecosystem have evolved in response to low ambient concentrations of nutrients and seasonal fluctuations of water levels. Prior to creation of the Everglades Agricultural Area (EAA), nitrogen and phosphorus were mainly supplied to large areas only in rainfall. Phosphorus is the primary limiting nutrient throughout the remaining Everglades. Sawgrass has lower phosphorus requirements than other species of Everglades vegetation. A substantial portion of EAA nutrients is transported to the remaining Everglades either in dissolved or in particulate form in surface waters. The introduction of phosphorus from EAA drainage water has resulted in ecological changes in substantial areas of Everglades marsh. These changes are cultural eutrophication, which is an increase in the supply of nutrients available in the marsh. The increased supply of phosphorus in Everglades marshes has resulted in documented impacts in several trophic levels, including microbial, periphyton, and macrophyte. The areal extent of these impacts is increasing. In 1988, the United States sued the District and the Florida Department of Environmental Regulation, now the Department of Environmental Protection (“DEP”), in federal court, alleging that the agencies failed to enforce Florida’s water quality standard for nutrients in waters of Loxahatchee Wildlife Refuge and Everglades National Park. The principal pollutant of concern was phosphorus. Audubon, USSC, and certain members of SCGC and SFC intervened in the federal case. In February 1992, the parties resolved their dispute through a settlement agreement approved by the federal court (“the Consent Decree”). The Consent Decree required the District and DEP to take action to meet water quality standards by December 31, 2002. At that time, the nutrient water quality standard was a narrative standard, prohibiting the discharge of nutrients so as to cause “an imbalance in natural populations of aquatic flora and fauna.” The Consent Decree directed the District to construct 34,700 acres of stormwater treatment areas (“STAs”) so that nutrient-laden surface water discharged from the EAA could be treated before discharge to the Everglades Protection Area (“EvPA”), which includes Loxahatchee Wildlife Refuge, Everglades National Park, and the Water Conservation Areas. STAs are large freshwater wetlands which remove phosphorus from the water column through physical, chemical, and biological processes such as sedimentation, precipitation, plant growth, and microbial activity. The first STAs were constructed and in operation in 1993. The Applicants operate in the S-5A Basin within the EAA. Their surface water is conveyed to STA-1W for treatment before being discharged to the EvPA. The Consent Decree required the District to initiate a regulatory program by 1992 to require permits for discharges from internal drainage systems (farms) in the EAA. The regulatory program was to be based on agricultural best management practices (“BMPs”). The goal of the program, as stated in the Consent Decree, was to reduce phosphorus loads from the EAA by 25 percent over the base period (1979-1988). In 1992, the District promulgated rule chapter 40E-63, which required EAA farmers to obtain WOD permits and to implement agricultural BMP plans. The BMP plans address fertilizer use and water management. Permittees must also implement a water quality monitoring plan. The rules require reduction of the total phosphorus loads discharged from the EAA Basin, as a whole, by 25 percent from historic levels. See Fla. Admin. Code R. 40E-63.101. If the EAA, as a whole, is in compliance, individual permittees are not required to make changes to their operations. See Fla. Admin. Code R. 40E-63.145(3)(d). If the 25 percent reduction requirement is not met, the rule contemplates that individual permittees in the EAA would have to reduce nutrient loads in their discharges. See Fla. Admin. Code R. 40E-63.145(3)(e).1/ The Consent Decree also required the District to obtain permits from the Department for discharges from the STAs to the EvPA and to conduct research and adopt rules to “numerically interpret” the narrative standard. In 1994, the Florida Legislature enacted the Everglades Forever Act (“the Act”), chapter 94-115, Laws of Florida, which is codified in section 373.4592. The Legislature authorized the district to proceed expeditiously with implementation of the Everglades Program. See § 373.4592(1)(b), Fla. Stat. The “Everglades Program” means the program of projects, regulations, and research described in the Act, including the Everglades Construction Project. The Everglades Construction Project involved the construction of 40,452 acres of STAs, which is 5,350 acres more than was required by the federal Consent Decree. The Act acknowledged the BMP regulatory program for the EAA that the District had established in rule chapter 40E-63, and stated: Prior to the expiration of existing permits, and during each 5-year term of subsequent permits as provided for in this section, those rules shall be amended to implement a comprehensive program of research, testing, and implementation of BMPs that will address all water quality standards within the EAA and Everglades protection Area. See § 373.4592(4)(f)2., Fla. Stat. The Act required DEP to issue permits to the District to construct, operate, and maintain the STAs. See § 373.4592(9)(e), Fla. Stat. The Act required development of a numeric water quality phosphorus standard for the EvPA by 2003. See § 373.4592(4)(e), Fla. Stat. The Act set the goal of achieving the phosphorus standard in all parts of the EvPA by December 31, 2006. In June 1995, modifications were made to the Consent Decree. The deadline for achieving water quality standards in the EvPA was changed from December 31, 2002, to December 31, 2006. The STAs were increased from 34,700 acres to 40,452 acres. The chronological developments outlined above indicate the intent of the Legislature and the parties to the Consent Decree to conform state law and the Consent Decree to each other. In 2001, DEP initiated rulemaking that lead to its adoption of the Phosphorus Rule, rule 62-302.540, in 2003. The rule set a numeric phosphorus criterion for the EvPA of 10 parts per billion (“ppb”), applied through a four-part test in which attainment is determined separately for “unimpacted” and “impacted areas” of the EvPA. See Fla. Admin Code R. 62- 302.540(4). In conjunction with this rulemaking, the DEP and District developed the Everglades Protection Area Tributary Basins Long Term Plan for Achieving Water Quality Goals (“Long- Term Plan”) in March 2003. The Long-Term Plan provided remedial measures and strategies divided into pre-2006 projects and post- 2006 projects. The pre-2006 projects included structural and operational modifications to the existing STAs, implementation of agricultural and urban BMPs in areas outside the EAA or C-139 basins, and construction of several restoration projects congressionally mandated by the Comprehensive Everglades Restoration Plan. Modeling of treatment capabilities of the STAs after implementation of the pre-2006 projects predicted that the 10 ppb standard for phosphorus could be achieved, but not consistently. Therefore, the Long-Term Plan required the District to identify and evaluate methods to improve phosphorus reductions, and if the phosphorus criterion was not achieved by December 31, 2006, to implement post-2006 modifications and improvements. The post- 2006 strategies include projects to expand and improve the STAs. They do not include changes to the BMP program. In 2003, the Legislature substantially amended the Act. It incorporated the Long-Term Plan into the Act, finding that it “provides the best available phosphorus reduction technology based on a combination of the BMPs and STAs.” § 373.4592(3)(b), Fla. Stat. The Long-Term Plan contemplates maintenance of the BMP program in the EAA, with refinements derived from BMP research. Recent Conditions and Events As previously stated, chapter 40E-63 requires the total phosphorus load from the EAA to be reduced by not less than 25 percent from historic levels. Since full implementation of the BMP regulatory program, annual phosphorus loads have been reduced by approximately 50 percent. Despite the efforts and projects undertaken, the phosphorus standard was not being achieved as of December 31, 2006, in all parts of the EvPA. In 2007, the DEP issued a permit to the District for discharges from the STAs to the EvPA (referred to as the “Everglades Forever Act” or “EFA permit”). The permit required the District to design and construct several regional water management projects, including structural enhancements to STA-1W, and the construction of 6,800 acres of additional STAs. The permit and its compliance schedules provided interim relief through 2016 from the water quality based effluent limitation (WQBEL) necessary to achieve the 10 ppb phosphorus standard. The 2007 EFA permit was not challenged by Audubon or any other entity. The District, DEP, and the United States Environmental Protection Agency began working together in 2010 to develop new strategies for achieving compliance with the phosphorus standard in the EvPA. The agencies determined that compliance could be achieved by expanding the STAs by 7,300 acres (6,500 acres would be added to STA-1W) and constructing flow equalization basins to store up to 110,000 acre feet of stormwater runoff. These basins are designed to attenuate peak flows into the STAs in order to improve the processes that remove phosphorus. In September 2012, DEP issued the District a new EFA permit, which authorized continued operation of the District’s S-5A pump station, STA-1W, and the related conveyance systems by which stormwater runoff from the S-5A Basin is ultimately discharged to the EvPA. The permit was issued with a Consent Order, requiring the District to expand STA-1W by 6,500 acres of effective treatment area in accordance with a timeline and the District’s Restoration Strategies. The 2012 EFA Permit and Consent Order were not challenged by Audubon or any other entity. In 2013, the Legislature amended the Act again. The Act’s reference to the Long-Term Plan was revised to include the District’s Restoration Strategies Regional Water Quality Plan, which called for expanding the STAs and constructing flow equalization basins. See § 373.4592(2)(j), Fla. Stat. The Legislature added a finding that “implementation of BMPs, funded by the owners and users of land in the EAA, effectively reduces nutrients in waters flowing into the Everglades Protection Area.” See § 373.4592(1)(g), Fla. Stat. The 2013 amendments indicated the Legislature’s intent to codify into law the strategies developed by the District and other regulatory agencies to achieve water quality standards in the EvPA. Those strategies do not materially change the BMP program in the EAA. The Act and the rules of the District create programs for achieving restoration of the EvPA that rely heavily on the STAs. Over the years, the STAs have repeatedly been enlarged and enhanced. In contrast, the requirement for farmers in the EAA to reduce their phosphorus loading by 25 percent has not changed in 21 years. It is beyond the scope of this proceeding to question the wisdom of the programs that have been established by statute and rule. Whether Additional Water Quality Measures Are Required A principal dispute in this case is whether the WOD Permits must include additional water quality measures to be implemented by the Applicants. Section 373.4592(4)(f)4. provides that, as of December 31, 2006, all EAA permits shall include “additional water quality measures, taking into account the water quality treatment actually provided by the STAs and the effectiveness of the BMPs.” Audubon asserts that the requirement for additional water quality measures has been triggered. The District does not interpret the statute as requiring additional water quality measures under current circumstances. The interpretation of the statute is primarily a disputed issue of law and is addressed in the Conclusions of Law. There, it is concluded that additional water quality measures are not required. Whether the BMP Plans are Adequate Audubon contends that the WOD Permits should be denied because the Applicant’s existing BMP plans are not “tailored” to particular soils, crops, and other conditions. This contention is based on section 373.4592(4)(f)2.c., which states in relevant part: BMPs as required for varying crops and soil types shall be included in permit conditions in the 5-year permits issued pursuant to this section. Audubon showed that the Applicants have similar BMP plans for the thousands of acres covered in the three WOD Permits, and contends that this similarity proves that BMPs are not being tailored to specific farm conditions. However, soils and crops are similar throughout the EAA. The soils of the EAA are almost entirely muck soils and the primary crop is sugarcane with some corn or other vegetable rotated in. The Applicants use many of the same BMPs because they have similar soils and grow similar crops. There are three main categories of BMPs implemented in the EAA: nutrient and sediment control BMPs, particulate matter and sediment control BMPs, and water management BMPs. See Fla. Admin. Code R. 40E-63.136, Appendix A2. The BMPs proposed by the Applicants are based on research in the EAA and recommendations specifically for EAA soils and the crops grown there. The Applications do not identify the specific BMPs that will be implemented, but only the number of BMPs that will be selected from each of the BMP categories (i.e., sediment control). The Applicants must use BMPs on the District’s list of approved BMPs unless an alternative BMP is requested and approved. The lack of greater detail was explained as necessitated by the need for flexibility during the life of the permit to adapt BMPs to varied crops and conditions. Audubon does not believe the BMP plans are tailored enough, but there is no rule criterion for determining how tailored BMP plans must be, except they must achieve the overall goal of reducing phosphorus loading in discharges from the EAA by at least 25 percent. This goal is being achieved.2/ Audubon did not show that any particular BMP being used by an Applicant was the wrong BMP for a particular soil and crop, or identify the BMP that Audubon believes should be used. Audubon failed to prove that the Applicants’ BMP plans do not meet applicable requirements. Whether the Applications Are Complete Audubon contends that the WOD Permits must be denied because the Applications are incomplete. Many of Audubon’s completeness issues deal with minor discrepancies of a type that are more appropriately resolved between the District and applicants, not violations of criteria that are likely to affect a third party’s interest in environmental protection. Rule 40E-63.130 lists the requirements for a permit application for activities in the EAA Basin. An Application Guidebook is incorporated into chapter 40E-63, which contains instructions for completing the application. For applications to renew a permit, the practice of the District is to not require the resubmittal of information that was previously submitted to the District and which has not changed. The Application Guidebook explains this practice. The Applicants supplemented their applications at the final hearing to provide information that Audubon claimed was omitted from the Applications.3/ Audubon contends that the Applications are incomplete because some application forms are not dated and other forms are not signed by appropriate entities. The District explained its rule interpretation and practices associated with the forms. Additional signatures and dates were submitted at the final hearing. Audubon failed to demonstrate that the Applications are incomplete based on the identity of the persons who signed application forms or the lack of dates. Audubon contends the Applications are incomplete because copies of contracts or agreements are not included as required by rule 40E-63.132(3). Audubon failed to prove that contracts and agreements exist that were not included. Audubon contends the Applications are incomplete because they do not contain a completed Form 0779, entitled “Application For A Works Of The District Permit,” as required by rule 40E-63.132(5). In some cases, the information for Form 0779 had been previously submitted and was unchanged, so the District did not require it to be resubmitted for the permit renewal. Additional information was provided at the final hearing. Audubon failed to prove that the Applications are incomplete based on missing information on Form 0779. Audubon contends that the Applications are incomplete because documentation regarding leased parcels was missing. Pursuant to rule 40E-63.130(1)(a), individual permit applications must be submitted by the owner of the land on which a structure is located and any entity responsible for operating the structure, and the permit application must include the owners of all parcels which discharge water tributary to the structure. Applications may be submitted by a lessee if the lessee has the legal and financial capability of implementing the BMP Plan and other permit conditions. The District explained that when applications are submitted by a lessee who will be the permittee or co-permittee, the District requires the lessee to be a responsible party for the entire term of the permit, which is five years. If the lessee is a not a co-permittee, the District does not require information about the lease and does not require the lessee’s signature. If the lessee is a co-permittee, but the lease expires during the term of the permit, the District requires the applicant to modify the permit when the lease expires. Audubon failed to prove that the Applications are incomplete based on lease information Audubon contends that the Applications are incomplete because they fail to show that the Applicants participated in an education and training program as required by rule 40E- 63.136(1)(g). The preponderance of the evidence shows that the Applicants participated in education and training programs. Audubon failed to prove that the Applications are incomplete for any of the reasons raised in its petition for hearing or advanced at the final hearing. Water Quality Standards in the EAA Audubon presented some evidence of algal accumulations in ditches and canals, but the evidence was insufficient to prove the Applicants are violating water quality standards applicable in the EAA. Summary Audubon failed to carry its burden to prove that the Applicants are not entitled to the WOD Permits.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that South Florida Water Management District issue Permit Nos. 50-00031-E, 50-00018-E, and 50-00047-E. DONE AND ENTERED this 10th day of February, 2014, 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 10th day of February, 2014.
The Issue The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit that is being modified was issued as conceptual approval on January 19, 1978. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes. The Application On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes 193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained, the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010. The Project and the Site The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side). A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District. The Surface Water Management System In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or detain stormwater runoff in order to provide treatment and attenuation of the stormwater. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands; and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. The ERP Permitting Criteria In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application. Water Quantity Criteria Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i). Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules. Water Quality Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met. Hazardous Waste Management Plan Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system. Elimination and Reduction Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when: the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands. Secondary Impacts Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule. Mitigation If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b). Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60. Species Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank. Public Interest Test In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest. Florida Coastal Management Program Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary. Other Criteria Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project. Petitioners' Evidence Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report. DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 November, 2010.
