Findings Of Fact The property has been annexed into the Acme Improvement District (Intervenor) by Special Act of the Florida Legislature. Petitioner purchased 487.7 acres of this tract from private owners in 1954. Subsequently, Petitioner purchased 653.59 acres from the Trustees of the Internal Improvement Fund of the State of Florida on or about March 4, 1960. The balance of the land constituting the property is a 224 acre hiatus tract owned by Marshall Brown with whom Petitioner has an agricultural use agreement. A parcel of Petitioner's land within the property includes a commercial lease to Malrite Corporation for siting a television antenna, consisting of 111 acres in the southeast corner of the property. This area is within the permit application. The tract is otherwise undeveloped and is currently submerged or semi- submerged during much of the year. Petitioner's development plan envisions drainage of this tract and use of the property for cultivation. The property is bounded on the north by Acme Improvement District, on the east by a subdivision called Homeland, on the west by Water Conservation Area #1, also known as the Loxahatchee Refuge, and on the south by undeveloped lands. The boundaries of the Loxahatchee Refuge actually encroach by approximately 300 feet into the property. The property development plan, which is the basis of this application, was prepared by the engineering firm Gee and Jensen. This plan calls for the creation of a 240 acre reservoir of a proposed 3 foot maximum depth. This reservoir would hold the internal stormwater runoff for subsequent agricultural irrigation. Perimeter dikes are to be constructed to prevent surface water runoff from outside areas entering the project and perimeter ditches are to be developed for the deliverance of stormwater runoff from the internal agricultural system to proposed pump stations located at the southwest corner of the development area. On the northwest corner of the proposed reservoir, the existing Acme Improvement District pump station No. 2 would be increased in capacity by 27,000 gallons per minute. Under Acme's charter and its statutory annexation of the property, the proposed reservoir and water management works would become a unit of development controlled by Acme. Under Petitioner's agreement with the hiatus tract owner, Acme would be the exclusive manager and operator of the proposed system, and the property would become an integral part of Acme's water management system. The Acme Water Improvement District is not solely an agricultural support enterprise but serves the various uses which may evolve within its boundaries. The area is currently zoned for limited residential development as well as agricultural. The television antenna facility located on the property is an example of a non-agricultural use. Petitioner's surface water management system is proposed to discharge into the Acme system, which in turn discharges offsite. Discharge into the Acme system is of a limited nature, but the system is designed to discharge for successive days under wet conditions. The design discharge is not limited to an extreme rainfall event but would probably occur during the traditional hydrologic cycle of south Florida. Under conditions which reflect actual rainfall over the past 20 years, the proposed surface water management system would have discharged 19 out of 20 years into the Water Conservation Area (Loxahatchee Refuge). In some years this discharge would have continued for approximately three months. The unrebutted testimony of expert witnesses called by Respondent established that the entire 1,393 acre tract referred to herein as "the property" is a freshwater wetland habitat. The western half is emergent marsh land, while the eastern half is forested with woody species. The wetlands on the property form a valuable wildlife habitat. Environmentally, they are in excellent condition. This area has not been adversely affected by drainage, fire or exotic species. These marshes also have good habitat diversity. The populations of aquatic invertebrates and forage fishes that are produced in these Everglades marshes are utilized by the many species of wading birds that feed in these wetlands. The proposed project will adversely affect wildlife species, including a variety of wading birds which will likely be unable to relocate. While this is undesirable from an environmental standpoint, conversion of this land would provide benefits from an agricultural standpoint, and would create additional water recreational facilities.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the application. DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
The Issue The issues are whether Georgia-Pacific Corporation is entitled to the issuance of an industrial wastewater facility permit under the National Pollutant Discharge Elimination System program that would authorize it to discharge industrial wastewater to the St. Johns River in Putnam County, Florida, and whether Georgia-Pacific Corporation has met the statutory criteria for a related administrative order for the interim discharge to Rice Creek in Putnam County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Respondent, Department of Environmental Protection (Department), is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of wastes to waters of the State. Under approval from the United States Environmental Protection Agency (EPA), the Department administers the National Pollutant Discharge Elimination System (NPDES) permitting program in the State. The Department also enforces specific water quality standards that have to be achieved in order to ensure protection of the designated uses of surface waters in the State. Respondent, Georgia-Pacific Corporation (Georgia- Pacific), owns and operates a bleached and unbleached kraft pulp and paper mill in Putnam County, Florida. The plant presently discharges treated wastewater to Rice Creek, a Class III water of the State, and a tributary of the St. Johns River. Petitioner, Putnam County Environmental Council, Inc. (PCEC), alleged in the Petition for Formal Administrative Hearing (Petition) that it is a non-profit Florida corporation headquartered in Palatka, Florida. However, other than a statement by one witness that PCEC was incorporated on an undisclosed date prior to the hearing, PCEC failed to present any evidence to establish its corporate status or residency in the State of Florida. According to the same witness, the organization was created in an unincorporated status in 1991, and it currently has 65 members who use and enjoy the St. Johns River for recreational purposes. Petitioner, Stewards of the St. Johns River, Inc. (SSJR), also alleged in the Petition that it is a non-profit Florida corporation with headquarters in Jacksonville, Florida. Like PCEC, SSJR failed to prove its corporate status or residency in the State of Florida. Although the number of members in SSJR is unknown, "many" of its members are boaters and "most" live along the St. Johns River. Petitioner, Linda Young, is Southeast Regional Coordinator for the Clean Water Network and a citizen of the State of Florida. As such, she has standing to "intervene" in this action under Section 403.412(5), Florida Statutes. In this complex case, the parties have presented extensive and conflicting evidence regarding the factual issues raised by the pleadings. In resolving the numerous conflicts in that testimony, the undersigned has accepted the more credible and persuasive evidence, as set forth in the findings below. The Applicant's Mill Operation Georgia-Pacific's Palatka mill was built in the 1940's before the establishment of Department water quality standards and classifications. Because of the nature of the pulping process, the mill has not been able to fully meet water quality standards in Rice Creek because of poor dilution. Georgia-Pacific receives wood chips from a sister facility and purchases residual chips from local wood products facilities. Those chips are separated into pine and hardwood, conveyed into the pulp processing facility, and loaded into digesters, that is, industrial-sized pressure cookers, which cook the chips for several hours. Pulp from the digesters goes to the brown kraft, bleached kraft, and tissue manufacturing facilities. Water in the manufacturing process is used, re-used, and recirculated until it cannot be used again, at which point it is conveyed into a primary wastewater clarifier, which is used to settle out fiber and other settleable solids. Additional wastewater sources are collected in sumps located in the facility, which are discharged into the primary clarifier. The underflow from the primary clarifier flows into a solids settling area (sludge pond) while the water from the primary clarifier passes into a secondary treatment system. The secondary treatment system uses aerobic and facultative biological treatment. Stormwater at the facility also flows into the treatment system. The secondary treatment system consists of four ponds in series: Pond 1, 485 acres, aerated with over 1600 horsepower of aeration; Pond 2, 175 acres, with 140 horsepower of aeration; Pond 3, 130 acres, with 120 horsepower of aeration; and Pond 4, 100 acres. Pond 4 is a quiescent basin, used to settle solids in the wastewater before discharge. The treatment system has a very long hydraulic detention time; once water enters the system, it remains there for 50 to 60 days. After treatment, a side stream of roughly 8,000,000 gallons per day of treated effluent is withdrawn, oxygenated with liquid oxygen, and discharged at two locations in Rice Creek: 3.4 miles upstream from the St. Johns River (Outfall D-001); and 2.4 miles upstream from the St. Johns River (Outfall D-002). Under low flow conditions, effluent from the Georgia-Pacific mill dominates the flow in Rice Creek. The Application Process Rice Creek is a small tributary of the St. Johns River, particularly in its upper reaches where Georgia- Pacific's effluent discharge occurs. Over the years, there have been exceedances of certain Class III water quality standards including specific conductance, color, and periodically whole effluent toxicity. Because of this, and during the permit review process, the Department began considering alternatives for mitigating or eliminating those existing concerns with the facility's discharge. In October 1992, Georgia-Pacific applied to the Department for the renewal of its existing wastewater discharge permit. In June 1994, Georgia-Pacific submitted an application to the Department for the construction and operation of an industrial wastewater treatment and disposal system. This application included a request to relocate Georgia-Pacific’s existing discharge to the St. Johns River. Because Georgia-Pacific submitted timely permit applications, it is authorized to continue operations based on an "administratively extended permit." In June 1994, Georgia-Pacific also applied to the EPA for a permit under the NPDES program. In October 1994, the EPA acknowledged receipt of a timely application for the renewal of Georgia-Pacific's existing NPDES permit, advising Georgia-Pacific by letter that its permit was automatically extended and that continued operation was authorized in accordance with the existing permit and 5 U.S.C. Section 558(c). On May 24, 1995, the Department advised Georgia- Pacific that the EPA had granted the Department the authority to administer the NPDES program and that its state permit and existing NPDES permit were deemed combined into one order. In response to a Department request, in November 1995, Georgia-Pacific submitted to the Department an antidegradation review for the relocation of its discharge. After Georgia-Pacific applied to the Department for a renewal of its NPDES permit, the Department directed Georgia-Pacific to provide alternatives that would ensure compliance with water quality standards. Georgia-Pacific submitted a proposal to construct a pipeline that would enable it to discharge its effluent to the middle of the St. Johns River. Under that proposal, Georgia-Pacific would achieve compliance with water quality standards as a result of greater dilution in the St. Johns River. Based on a review of Georgia-Pacific's submittal, the Department determined that Georgia-Pacific could in fact achieve water quality standards by constructing a pipeline to the St. Johns River. Likewise, the EPA concluded that Georgia-Pacific could receive a permit to discharge to the St. Johns River through a pipeline, without additional process improvements. Although the Department concluded that compliance could be achieved solely by the construction of a pipeline, it began discussions with Georgia-Pacific and EPA in order to examine other approaches that might lead to compliance in Rice Creek. These discussions culminated in a decision that Georgia-Pacific would invest substantial funds in the installation of additional technology and also be assured of some ultimate means to achieve compliance with water quality standards. On May 1, 2001, the Department issued a Notice of Intent to Issue an industrial wastewater permit, together with an Order Establishing Compliance Schedules Under 403.088(2)(f), Florida Statutes (the Administrative Order). In late January 2002, Georgia-Pacific submitted a request to the Department asking for consideration of two changes to the proposed permit: first, a request to relocate a groundwater monitoring well; and second, a request to review the Department's proposed mixing zone in the St. Johns River for the transparency standard. The Department also proposes a minor change in permit conditions to allow approval of the bleach plant monitoring plan to take place within sixty days after the issuance of the final permit. Both of Georgia- Pacific's requests were reviewed by the Department, and it has recommended that they be included in the proposed permit. Technology-Based Effluent Limits and Water Quality- Based Effluent Limits When considering a permit application such as the one here, the Department reviews the application to determine compliance with technology-based effluent limits (TBELs) and water quality-based effluent limits (WQBELs). TBELs are minimum industry standards that all facilities must meet regardless of their discharge location. They are predominantly production-based, and they limit the mass of pollutants that may be discharged based on the mass of product produced. Those limits generally reflect EPA's assessment of the industry standard regarding what can be met in a given discharge. In the preparation of a permit, the Department practice is to first determine the TBELs that would apply. In contrast, a WQBEL reflects how low the discharge must be (or how effective treatment must be) for a given parameter to meet water quality standards. Relief mechanisms such as mixing zones are inherent in WQBELs. A WQBEL is necessary only for those parameters for which there is a reasonable potential for the facility either to exceed the water quality standard or come close to exceeding the standard. As a matter of agency practice, the Department does not impose a limit unless there is a reasonable potential to exceed a standard. In order to determine whether there is such a reasonable potential for exceeding a standard, the Department will review past operations and other information it may have regarding the characteristics of the discharge. For a discharge such as the one proposed in the present case, a "Level II" WQBEL is required. The Department's Point Source Section, with expertise in the field of water quality modeling, analyzes the Level II WQBEL. Georgia-Pacific must meet certain technology-based standards, such as those set forth in the Cluster Rule. The Cluster Rule has been promulgated by the EPA and adopted by the Department and requires the installation of technologies to eliminate the use of elemental chlorine in the bleaching process. The Palatka facility far exceeds (performs better than) technology-based effluent limits. In March 1998, the Department created a document titled "Level II Water Quality Based Effluent Limitations for the Georgia Pacific Corp. Palatka Mill" (the WQBEL Technical Report]. The WQBEL Technical Report has a typed notation on the title page reading "March 1998 -- Final." The WQBEL Technical Report contained the following effluent discharge limitations: The following are the effluent limitations for the Georgia-Pacific Palatka mill discharge to the St. Johns River based upon results from the Level II WQBEL. Review comments from EPA Region 4 are included in the correspondence section. Parameter Limitation Discharge 60 MGD Daily Maximum BOD5 Summer (June 1 - November 30) 3,500 lbs/day maximum thirty day average Winter (December 1 – May 31) 7,170 lbs/day maximum thirty day average TSS Summer (June 1 - November 30) 5,000 lbs/day maximum thirty day average Winter (December 1 – May 31) 10,000 lbs/day maximum thirty day average Dissolved Oxygen 2.7 mg/l minimum Specific conductance 3,220 umhos/cm daily maximum Un-Ionized Ammonia Nitrogen Summer (June 1 - November 30) .11 ug/l daily maximum Winter (December 1 – May 31) .13 ug/l daily maximum Iron (Total Recoverable) 2.91 mg/l daily maximum Cadmium (Total Recoverable) 3.46 ug/l daily maximum Lead (Total Recoverable) 5.87 ug/l daily maximum Zinc (Total Recoverable) 480 ug/l daily maximum When the WQBEL Technical Report was approved in 1998, the Department's Northeast District Office did not prepare a separate formal notice of approval. The WQBEL Technical Report was transmitted by memorandum from the Water Quality Assessment Section to the Department's Director of District Management for the Northeast District on April 13, 1998, where it remained on file. The WQBEL Technical Report complied with the plan of study previously approved by the Department, and it met the requirements of Rule 62-650.500, Florida Administrative Code. Both the Department and EPA staff concurred with the approval of the WQBEL Technical Report. They agreed that the construction of a pipeline and the relocation of the discharge to the St. Johns River would yield a net environmental benefit without additional process improvements. Upgrades Implemented and Required in the Proposed Agency Actions As described more fully below, Georgia-Pacific has modified its production and treatment processes in such a manner as to improve its overall environmental performance. In installing some of those modifications, Georgia-Pacific undertook what was required by federal and state law. For others, Georgia-Pacific has exceeded what it was required to do under state or federal law. To comply with the Cluster Rule, Georgia-Pacific eliminated two bleach plants and installed a new bleach plant, one which uses chlorine dioxide as opposed to elemental chlorine. The implementation of this technology is primarily aimed at eliminating the mechanism for the formation of dioxin in the bleaching plant. Compliance with the Cluster Rule generally requires, among other things, conversion to an elemental chlorine-free bleaching system. Georgia-Pacific is in compliance with the Cluster Rule. Under the Cluster Rule, Georgia-Pacific is required to sample for dioxin at its bleach plant, with a limit of under 10 picograms per liter. Georgia-Pacific has experienced reductions in the color of its effluent as the result of the chlorine dioxide conversion as well as reductions in specific conductance. The reductions in specific conductance are particularly significant because Georgia-Pacific has decreased its effluent flow, which would ordinarily increase specific conductance in the absence of additional improvements. After conversion to chlorine dioxide, Georgia- Pacific began monitoring for parameters defined by the Cluster Rule. In that monitoring, Georgia-Pacific has tested "non- detect" for dioxin and chlorinated phenolics. Specifically, Georgia-Pacific has monitored dioxin in its effluent, as well as within its process –- before dilution with other wastewater –- and the monitoring results at both locations are likewise "non-detect" for dioxin. Furthermore, levels of chloroform and adsorbable organic halides (AOX) have been well within the limits imposed by the proposed permit and the Cluster Rule. Georgia-Pacific has voluntarily agreed to install by April 15, 2006, an oxygen delignification system, or a like system that produces similar or better environmental benefits. Oxygen delignification is a precursor to bleaching, which removes lignins from the fiber before the product is bleached. This process is significant because lignin consumes chemicals, impedes bleaching, and prohibits achieving brightness targets in the bleach plant. The cost associated with the oxygen delignification system is $22,700,000. This commitment is reflected in the proposed Administrative Order and Permit. Oxygen delignification has been identified as having significant benefits in terms of reducing the color and specific conductance of effluent. Georgia-Pacific voluntarily agreed to install by August 15, 2003, a new brownstock washing system to replace four existing brownstock washing lines. A brownstock washer is a piece of equipment that washes organics away from fiber, after pulping and before oxygen delignification. The cost of this equipment is approximately $30,000,000. This commitment is reflected in the Administrative Order and Permit. The new brownstock washers are not required by Department rules, but they will be helpful in reducing the specific conductance of effluent. Georgia-Pacific has also voluntarily agreed to install a green liquor dregs filter. This system would remove dregs from the effluent system and reduce specific conductance and color in the effluent. The cost of the green liquor dregs filter is $1,100,000. This commitment is reflected in the Administrative Order and Permit. Under the proposed agency action, Georgia-Pacific is likewise required to install additional equipment for the implementation of its best management practices program to minimize leaks and spills in the process sewer. This equipment, including controls on the brownstock washer system, and the installation of a spill control system, pumps, and piping, has been installed at a cost of $7,100,000. Georgia-Pacific has also optimized the performance of its treatment system through the relocation of its aerators in the treatment ponds and modifying its nutrient feed system. This has led to reduced levels of biological oxygen demand (BOD) in the discharge, as well as improved treatment for total suspended solids. In addition, Georgia-Pacific has voluntarily installed a reverse osmosis system to recycle certain internal streams, which in turn has led to reductions in specific conductance, at a cost of $3,300,000. To comply with the proposed agency actions, Georgia- Pacific expects to expend a total of approximately $170,000,000 for upgrades for the purpose of producing environmental benefits. Additional money is earmarked for other environmental performance issues, such as water conservation. Except for technology-based limits adopted by rule, the Department does not dictate how a facility achieves compliance with water quality standards. Georgia-Pacific demonstrated that its environmental performance is substantially better than required by technology-based limits. Based on the foregoing, it is reasonable to find that Georgia-Pacific’s commitments to process improvements will lead to a general improvement in water quality in the receiving waters. Relocation of the Discharge As noted above, because of the minimal dilution available in Rice Creek, Georgia-Pacific has never been fully able to achieve water quality standards in Rice Creek, a Class III water body. Rice Creek continues to exceed water quality criteria for specific conductance and color; historically, the discharge had experienced exceedences for the chronic toxicity criterion. Under present conditions, with Georgia-Pacific discharging to Rice Creek and Rice Creek flowing to the St. Johns River, elevated levels of color are experienced along the shoreline of the St. Johns River in the area of existing grass beds. Modeling shows that under current flow conditions from Rice Creek, those color effects are observed on the northwest bank near the confluence of Rice Creek with the St. Johns River. If the discharge is relocated to the St. Johns River and discharged near the river bottom through a diffuser, it will beneficially change the distribution of color impacts both to Rice Creek and the St. Johns River. Color in Rice Creek will improve, returning to its background color of 100 to 150 platinum cobalt units (pcu). Specific conductance within Rice Creek will also be markedly reduced. Because the input will occur in the middle of the St. Johns River, with higher flows and greater turbulence, there will no longer be relatively highly colored water flowing along the shoreline. Therefore, the relocation will provide a significant benefit of moving highly colored water away from grass beds and will mitigate against any existing effects on those grass beds. It is beneficial to relocate discharges to the middle of a stream, as opposed to the edge of a shoreline, where effluent tends to hug the shoreline. Therefore, regardless of the process improvements, there will be a net environmental improvement by relocating the discharge to the middle of the St. Johns River The discharge from the proposed diffuser will be comparatively benign, in comparison to the present flow from Rice Creek into the St. Johns River. This is because the effluent would not reach or hug the shoreline in such a scenario but rather would be diluted in rising to the surface, as well as by its lateral movement in the direction toward the river bank. The relocation of the discharge to the middle of the St. Johns River will cause improvements through localized changes in concentrations near the diffuser and the confluence of Rice Creek and the St. Johns River. Based on the foregoing, it is found that Georgia- Pacific’s proposed discharge into the St. Johns River will not result in water quality degradation, but will instead lead to a general improvement in water quality. Proposed Conditions in the Permit and Administrative Order Before certifying completion of the required manufacturing process improvements, Georgia-Pacific is required to submit to the Department a report on its ability to optimize the modifications, as well as a separate report which would determine whether Georgia-Pacific can meet certain limits that would enable a continuing discharge to Rice Creek. If the water quality improvements are sufficient to achieve standards in Rice Creek, the permit would be reopened and Georgia-Pacific would be required to maintain the present discharge location to Rice Creek. Otherwise, Georgia-Pacific would be authorized to construct the pipeline to the St. Johns River. The permit is drafted so that Georgia-Pacific will verify the need for mixing zones, as well as the dimensions of proposed mixing zones, after process improvements are complete. The Administrative Order imposes interim effluent limitations during the compliance period described in that Order. The Administrative Order contains "report-only" conditions for certain parameters. For those parameters which do not have interim limits, there is no appropriate standard to apply because information on effluent and water quality conditions is incomplete. The Department also found it unreasonable to impose interim limits that will be met only after Georgia-Pacific completes the improvements requested by the Department. Under Department practice, it is reasonable to impose "report only" conditions for parameters when it is unclear whether the discharge for the facility presents a concern for potential exceedences of water quality standards. In addition, "report only" conditions are used when a facility is undertaking an effort to address problems for certain parameters during a period necessary to achieve compliance. The proposed permit includes mixing zones in the St. Johns River for dissolved oxygen, total recoverable iron, total recoverable cadmium, total recoverable lead, un-ionized ammonia, turbidity, and specific conductance. The length of each of those mixing zones is 16.5 meters, that is, limited to the rise of plume. A mixing zone is also required for transparency, which will require a length of 734 meters. Within 12 months after certifying completion of the manufacturing process improvements, Georgia-Pacific will be required to re-evaluate the need for mixing zones and effluent limits and re-open the permit as necessary to include final mixing zones, effluent limits, and monitoring requirements. Compliance with Ambient Water Quality Standards The Petition contends that Georgia-Pacific has not provided reasonable assurances that it would comply with the following standards: nutrients (paragraph 18); dissolved oxygen (paragraph 20); chronic toxicity (paragraph 21); total suspended solids (paragraph 23); iron (paragraph 25); and phenolic compounds (paragraph 26). Although no water quality standard is directly applicable, Petitioners also addressed the following water quality issues: biological oxygen demand (BOD) (paragraph 20); dioxin, "related compounds," chlorinated organics, AOX, and chemical oxygen demand (COD) (paragraph 22); color (paragraph 24); and total suspended solids (TSS), which is alleged to include total organic carbon (TOC) (paragraph 94). Petitioners asserted that dioxin, chlorinated organics, TSS, and AOX are significant in considering compliance with the "free-from" standard in Rules 62- 302.500(1) and 62-302.530. In determining whether water quality standards will be met, those allegations should only be considered in reference to those adopted standards for the "free-from" standard. The effluent data establishes that Georgia-Pacific will consistently meet the proposed permit limits for discharge to Rice Creek. Georgia-Pacific's treatment facility has the capacity to comply with the proposed permit limits for discharge to Rice Creek, and there is a very high degree of assurance that it has the capability to comply with those standards in the future. In addition, Georgia-Pacific's treatment facility is able to meet the WQBELs established for discharge into the St. Johns River. Evaluation and modeling demonstrate that if a discharge to the St. Johns River is undertaken, the St. Johns River will meet Class III water standards at the edge of the mixing zone if Georgia-Pacific complies with its proposed effluent limits. Also, the effluent will meet all applicable effluent guidelines and technology-based standards adopted in the Florida Administrative Code. The effluent will not settle, form deposits, or create a nuisance, and it will not float as debris, scum, or oil. Finally, the effluent will not produce color, odor, taste, or other conditions so as to create a nuisance. Georgia-Pacific performed an analysis to determine the effluent limits that would be necessary to achieve water quality standards. This analysis included water quality modeling, which is a method of summing up inputs and losses, calculating the amount of material in a system, and determining the concentration of a substance. The model was used to geometrically represent the St. Johns River, Etonia Creek, and the reach of the St. Johns River within the study area, which extended from Buffalo Bluff (15 miles upstream of the confluence of Rice Creek and the St. Johns River) to Mile Point 50. Rice Creek enters the St. Johns River at Mile Point 74. When a model is performed, the model will yield estimates or predictions of concentrations throughout a water body. Those predictions can be compared to field observations and measurements; if the model is done properly, the calculated numbers should agree with the measured numbers. Modeling is used to evaluate future conditions based on hypothetical future changes to the system. The modeling methods and advanced time-variable models employed by Georgia- Pacific's consultants were approved by the Department. Georgia-Pacific prepared a plan of study to obtain field data in the St. Johns River for the purpose of assuring that the models would simulate observed concentrations of constituents. The Department approved that plan of study and published a notice of approval. The Department also approved the quality assurance project plan for the collection of water quality data in Georgia-Pacific's modeling efforts. After approval of the plan of study and quality assurance project plan, Georgia-Pacific's consultants performed water quality surveys in November 1994 and May 1995. The models employed by Georgia-Pacific's consultants were calibrated and produced the observed water quality results. The proposed diffuser would be located about one foot from the bottom of the channel. As designed, the plume would leave the proposed diffuser and spread out, with the upper part of the plume going to the surface of the water. The plume model calculates the dilution at the centerline of the plume, where there would be a minimum of dilution. This method of using the centerline as a reference point leads to a conservative analysis, and it would require the Applicant to achieve more dilution than might otherwise be necessary to achieve water quality standards. For regulatory purposes, the Department usually uses the maximum height of the rise of the plume to determine a mixing zone, the point at which concentrations along the centerline of the plume would level off. Because of that practice, for certain parameters where the required mixing zone is less than the distance of the rise of the plume, a decrease in effluent limits would not lead to a decrease in the size of the mixing zone. Tidal actions will cause re-entrainment, that is, the movement of dissolved substances back into the plume area. This factor reduces the dilution factor that otherwise would apply to the system. This factor is accounted for in modeling by tying in a diffuser computation to a water quality model. The modeling employed by Georgia-Pacific assumes 7Q10 conditions, that is, a conservative assumption that flow is equal to the lowest one-week average for a ten-year period, where there is little dilution. The employment of this conservative method would minimize the probability of exceedences in the receiving water body. The projection employed by Georgia-Pacific's consultants was even more conservative because the 7Q10 flow rate is assumed to apply through a 60-day average flow, a condition that may never occur, and would not be expected to occur once in ten years. In contrast, the use of time-variable simulations would lead to less stringent permitting requirements. The permit provides reasonable assurance that the construction, modification, or operation of the treatment system will not discharge or cause pollution in violation of Department standards. The permit provides reasonable assurance that, based on the effluent limitations determined by the Department in the WQBEL Technical Report, water quality standards would be met outside the area of the proposed mixing zone for specific conductance, dissolved oxygen, un-ionized ammonia, iron, cadmium, lead, and zinc. Based on additional analysis as reflected in Georgia-Pacific's proposed amendment to the draft permit, Georgia-Pacific would achieve compliance with the transparency standard with the mixing zone described in its proposed amendment, that is, with a total length of 734 meters. The chronic toxicity criterion is a biological measurement which determines whether organisms are impaired by effluent. If impairment is demonstrated, the test does not indicate what component of the effluent is causing the effect. Georgia-Pacific is required to conduct testing for acute and chronic toxicity twice a year. Current tests undertaken in May and October 2001 are representative of effluent conditions after Georgia-Pacific undertook conversion of the bleach plant to chlorine dioxide. Those tests demonstrate that Georgia-Pacific is in compliance with the acute and chronic toxicity criterion since the conversion to chlorine dioxide bleaching. Georgia-Pacific is also in compliance with the biological integrity standard, based on the most recent fifth-year inspection. Because of the flow characteristics and the characteristics of pulp mill effluent, the pollutants associated with the effluent are not assimilated as the effluent travels from the point of discharge, through Rice Creek, to the St. Johns River. The particulates associated with pulp mill effluent are so small or fine that they will remain in suspension and thus not settle out in Rice Creek. In addition, because Rice Creek is channelized, there is no sloping side that would enable the growth of vegetation that would filter the water. Furthermore, even if there was a sedimentation process occurring in Rice Creek, no additional sedimentation would occur after the system reaches an equilibrium point. Although Rice Creek does cause a small decrease in BOD through oxidation, Georgia-Pacific has compensated for that factor by the injection of oxygen in the effluent. Thus, the direct piping of effluent to the St. Johns River (as opposed to a discharge into Rice Creek, which flows into the St. Johns River) would not result in any significant increase in pollutant loading to the St. Johns River. In addition, the construction of a pipeline would take place only after additional technologies have been implemented to maximize pollutant reduction. Compliance with the Reasonable Assurance Standard Georgia-Pacific has provided reasonable assurances for the proposed permit to be issued for a discharge into the St. Johns River. This finding is based upon Georgia-Pacific's ability to meet the effluent standards described in the draft permit, and modeling results demonstrating that, with the proposed mixing zones for certain parameters, a discharge into St. Johns River, as designed, will not result in a violation of Class III standards. Mixing Zones In Section H of their Petition, Petitioners challenged the proposed mixing zones set forth in the proposed Permit. Petitioners generally alleged that the proposed mixing zones were "enormous" and that they failed to comply with certain rules restricting mixing zones. In their Petition, Petitioners articulated three theories to support the proposition that the mixing zones were illegal: first, that the mixing zones would include a nursery area of indigenous aquatic life, including beds of aquatic plants of the type listed in Rule 63-302.200(16); second, that the mixing zone, by itself, would lead to a violation of the minimum criteria in Rule 62-302.500; and third, that the mixing zones, or a combination of those mixing zones, would result in a significant impairment of Class III uses in the St. Johns River. Petitioners were authorized to amend their Petition to add additional allegations to paragraphs 17 and 67 of their original Petition regarding the mixing zone. Under those amendments, Petitioners alleged that Georgia-Pacific’s proposed amendment to the draft permit would (a) improperly expand the mixing zone; (b) fail to account for the length of the diffuser; (c) improperly substitute "transparency" for "color"; and (d) prevent isolation of transparency impacts from color in the discharge. However, there is no evidence which ties those allegations to any regulatory standard that would affect the proposed agency action. Petitioners also contended that color was a surrogate for chemical oxygen demand, as well as for substances that are alleged to cause chronic or acute toxicity. However, as shown by the testimony of Department witness Maher, the permit condition for "color" was a surrogate only for the transparency standard. No evidence to support a contrary inference was presented. Petitioners also made general allegations that the proposed mixing zones are illegal, without a clear indication of what is deemed illegal about the mixing zones. Although the Petition includes a general argument in opposition to mixing zones, Petitioners were unable to suggest a legal basis for alleging that the mixing zones were illegal. For example, Petitioners alleged that certain mixing zones are enormous but failed to articulate why they are so enormous as to be illegal. They did not allege that the Department had erred by allowing a larger mixing zone than Georgia-Pacific should have received under applicable rules. Indeed, such a position would be antithetical to Petitioners' allegations that Georgia-Pacific had failed to achieve water quality standards for a number of parameters. The accepted testimony establishes that Georgia-Pacific's proposed mixing zones will comply with Department rules. No persuasive evidence was presented to the contrary. Because the effluent quality will differ from present conditions after completion of the process improvements, the proposed mixing zones will not be final until after process improvements have been made, the operation has been stabilized, and the mixing zones have been re- verified. No mixing zones are authorized in the Administrative Order. The Administrative Order contains a table setting forth potential mixing zones that are used as a benchmark to determine whether Georgia-Pacific can meet water quality standards in Rice Creek. The table sets out a series of hypothetical mixing zones at 800 meters, that is, the maximum presumptive distance afforded without additional relief mechanisms. Because no mixing zones are proposed to take effect in Rice Creek, there can be no issue of "illegal" mixing zones in Rice Creek. Within a range of potential discharge flows, from 20 MGD to 60 MGD, water quality standards will be met within the area of the proposed mixing zones for all parameters for which mixing zones are required. Mixing zones are allowed by Department rules and are considered a part of Florida water quality standards. In the context of the Department's permitting review, if a modeling analysis shows that the concentration of a pollutant in effluent is greater than the water quality criterion, the Department will determine if the amount of dilution in the receiving water is sufficient to assimilate the pollutants of concern. The Department will then determine either the length (in the case of a river) or area (in the case of an estuary) of a water body that would be necessary to achieve compliance through dilution. Based on chloride levels, the St. Johns River at the area of concern would not be considered an estuary under Department rules. Each of the proposed mixing zones would be less than 800 meters in length (as allowed by Department rule) and less than 125,600 square meters in area (a limitation that would apply only if the area was an estuary). The proposed discharge will comply with all minimum rule requirements with respect to mixing zones, such as those for dissolved oxygen, turbidity, and the absence of acute toxicity. Likewise, the proposed mixing zones will not impact any nursery areas for indigenous aquatic life. Nutrient Issues In Section I, Petitioners contested the Department's decision to not require effluent limits to prevent a violation of the narrative water quality criterion for nutrients. For reasons addressed in the undersigned's Order dated February 14, 2002, that issue is waived based because of Petitioners' failure to file a timely challenge to the WQBEL Technical Report. In addition, based on the findings set out below, Georgia-Pacific has provided reasonable assurances that it will not violate the narrative standard for nutrients. Further, the evidence shows that effluent limits for nutrients are not presently warranted. Petitioners presented testimony that the St. Johns River may be nitrogen-limited or phosphorous-limited at different times of the year, which means that concentrations of one or the other would limit algae growth at different times of the year. Relative light levels, as well as the penetration of light, also affect algae growth. Georgia-Pacific’s treatment system requires the addition of ammonia because ammonia or nitrate is a necessary nutrient for the growth of bacteria in the treatment system. Ammonia and nitrate are both nutrients. Although there can be a conversion from one form to the other, that conversion does not affect the net loss or gain of nutrients. Although nutrient issues are of concern to water bodies, it is absolutely necessary in a biological treatment system to have sufficient nutrients for the operation of the system to treat parameters such as BOD. The Georgia-Pacific facility is achieving a high level of treatment while managing its system at a minimum level of nutrient addition. Management of a treatment system requires attention not only to the influent and effluent, but also monitoring of conditions within the system itself to assure adequate treatment. Georgia-Pacific is continuing to refine its procedures for doing so. The State has adopted what is referred to as the "5- 5-3-1" (advanced wastewater treatment) limitation for municipal treatment plants that discharge to surface waters. This standard refers to five milligrams per liter for BOD, five milligrams per liter for suspended solids, three milligrams per liter for total nitrogen, and one milligram per liter for total phosphorous. This limitation has been in effect for many years and remains one of the most stringent state standards in the nation. Georgia-Pacific's facility would be in compliance with those standards for nitrogen and phosphorous. Effluent from the Georgia-Pacific mill increases the concentration of total nitrogen in Rice Creek, relative to background conditions. However, because of the relatively higher flow of the St. Johns River, when the load from the mill is transported to the St. Johns River, the increase in nitrogen concentration is so small as to be imperceptible. Nitrogen loading from Georgia-Pacific's Palatka mill on a long-term average (prior to upgrades of its treatment plant) has been measured at 1,196 pounds per day. The average loading at Buffalo Bluff, which is far upstream of Rice Creek and the Georgia-Pacific Palatka mill, is 36,615 pounds per day. Additional nonpoint sources contribute approximately 12,000 pounds per day in the study area. Thus, the loading from the Georgia-Pacific mill represents a 2.4 percent increase in nitrogen levels on the St. Johns River, a difference that cannot be measured. The largest point source of nutrients in the lower St. Johns River is the Buckman wastewater treatment plant in Duval County. That facility does not have nutrient limits on its discharge permit. Rice Creek does not provide any treatment (as opposed to dilution) for nitrogen in Georgia-Pacific's effluent. A review of probability distributions for nitrogen concentrations upstream and downstream of Rice Creek demonstrated that Rice Creek had no influence on nitrogen levels in the St. Johns River. Phosphorous concentrations from the effluent, if discharged to the St. Johns River, would dilute rapidly, decreasing to .2 milligrams per liter within the water column, five to six feet below the surface, after discharge from the diffuser, below the area in which light is absorbed at the surface of the water column. Chlorophyll-A is a parameter that is typically used as a measure of phytoplankton in the water column. Concentration distributions for chlorophyll-A at Buffalo Point (upstream of Rice Creek) matched concentrations for the same parameter at Racey Point, a station far downstream of Rice Creek. This analysis confirms that the inputs coming into the St. Johns River System from Rice Creek do not have a significant influence on the water quality of the St. Johns River, with respect to nutrients. With a discharge coming directly to the St. Johns River, and with nutrient loading being the same as from Rice Creek, the nutrient loading would not influence the St. Johns River. The Department does not have sufficient information at the present to impose a nutrient limit on Georgia-Pacific. The draft permit accounts for this issue through a re-opener clause which would authorize a limit when that information is available, if such a limit is necessary. Allegations Regarding "Deformities in Fish" Section J of the Petition includes allegations that Georgia-Pacific failed to provide reasonable assurances regarding adverse physiological response in animals under Rule 62-302.530(62), and that Georgia-Pacific has failed to provide reasonable assurances that its discharge will not be mutagenic or teratogenic to significant, locally occurring wildlife or aquatic species, or to human beings, under Rule 62- 302.500(1)(a)5. Petitioners suggest that the permit cannot be granted as proposed because it lacks effluent limits for (unstated) substances that are alleged to create potential violations of the free-from standard. This argument is barred as a matter of law for the reasons stated in the Order dated February 14, 2002. In addition, based on the following findings, this argument has been rejected because Georgia- Pacific has met the reasonable assurances standard without effluent limits on those unstated (and unknown) substances that are alleged to cause violations of those rules. Petitioners presented evidence that paper mill effluent in general contains chemicals which could cause the masculinization of the females in certain fish species, as well as hormonal effects in males. However, witness Koenig did not offer any testimony that Georgia-Pacific’s effluent, in particular, contained such chemicals. Dr. Koenig had collected no data and had not conducted any field studies in Rice Creek to support his testimony; rather, he relied on articles published by others and provided by Petitioner Linda Young. In agency practice and interpretation of the free- from standard in Rule 62-302.530(62), Florida Administrative Code, the question of whether a change is adverse depends on the overall community or population of that particular species. Tellingly, Petitioners did not present any competent evidence, through Dr. Koenig's testimony or otherwise, that Georgia-Pacific's effluent presents the potential for adverse effects on the overall community or population of any species. Dr. Koenig testified at length from his reading of studies performed by other scientists regarding changes in the hormone levels and gonadosomatic index (the relative weight of gonads) of fish in the St. Johns River in the vicinity of Rice Creek. In his testimony, Dr. Koenig relied on two published articles to address conditions in the vicinity of Rice Creek, both of which were primarily authored by M. Sepulveda. One of those articles showed hormonal changes taking place in a laboratory study where largemouth bass were exposed to mill effluent. That study also showed a change in the gonadosomatic index in the subject fish. Dr. Koenig did not offer any opinion that such changes would be adverse or that they would affect the reproduction of those fish. The other study was a field study with samples of fish at various regions in the vicinity of Rice Creek. This study did not include any fish from Rice Creek, but did include fish from the confluence of Rice Creek and the St. Johns River, as opposed to reference streams. The study showed lower levels of hormones in fish from the area of that confluence, but also showed similar effects at a reference stream 40 kilometers away. No testimony was presented to support the inference that the effects represented in the two studies were adverse, within the meaning of the free-from rule. Moreover, the data from those two studies were collected in 1996, 1997, and 1998, or before Georgia-Pacific converted its bleach plant to chlorine dioxide bleaching in March 2001. Therefore, Dr. Koenig had no data to support any theory that under current effluent conditions, Georgia-Pacific is producing or will produce compounds that would cause any changes of hormone concentrations in fish. With respect to the phenomenon of fish masculinization in Rice Creek, Petitioners' experts had no data to support a competent opinion on this subject. To support his testimony, Dr. Koenig only read one article that purported to demonstrate fish masculinization in 11-Mile Creek and the Fenholloway River, and one letter from an employee of the St. Johns River Water Management District [Young Exhibit 8A] that referred to "external anatomical anomalies" near Georgia-Pacific discharge points. The article attached to that letter and included in Young Exhibit 8A addressed data collected in Escambia County, and does not address conditions in Rice Creek. Petitioners attempted to present the theory that the potential for endocrine disruption or fish masculinization resulting from paper mill effluent would violate the free-from standard. As a condition to issuance of the permit, the Department proposes to require Georgia-Pacific to obtain approval of a plan of study to analyze the potential for significant masculinization effects from the discharge. Under the proposed conditions, Georgia-Pacific is required to determine the minimum concentration at which such effects may be detected. By its terms, the proposed permit may be reopened to adjust effluent limitations or monitoring requirements if the masculinization study shows a need for them. Department witness Brooks acknowledged a general concern for endocrine disruption resulting from paper mill effluent. In particular, Mr. Brooks referred to studies which showed that paper mill effluent could cause the elongation of an anal fin in the females of certain fish species. However, Mr. Brooks observed that although this appeared to be a physiologic response, there was no evidence or reason to believe that this effect was an adverse effect. Reports regarding masculinization, that is, the elongation of anal fins in female fish, are suspect because (among other reasons) the studies do not account for variances that would be expected based on the independent variables of sex, age, and growth. In any case, the data from those reports do not demonstrate significant, adverse effects in exposed populations. A critical and unbiased review of the published literature shows that impacts of masculinization are biologically interesting but preliminary in nature. Department witness Maher observed that the masculinization effect occurs naturally, and that the Department's plan of study is intended to determine whether this natural phenomenon becomes problematic or is enhanced by activity at the mill. Initial information reviewed by the Department indicates that the phenomenon is no longer experienced when a mill converts to a chlorine dioxide (ECF) bleaching process, as Georgia-Pacific has done in converting to ECF. According to witness Brooks, the observed effect known as "fish masculinization" is not confirmed to result from endocrine disruption. The Department has concluded that it has reason to be concerned about the potential for fish masculinization. From the Department's viewpoint, it is not clearly understood what is causing this effect. It has been shown that there is a direct relationship between concentration (or dilution) and the observation of those effects. This conclusion is consistent with Dr. Koenig's testimony, which observed a decline in observed effects based on the dosage or concentration of effluent. The Department has reviewed evidence showing that, with dilution, the effect of fish masculinization "go[es] away." In the Department's analysis of the fish masculinization issue in the present permit, the Department is requiring process improvements that would reduce this phenomenon, if it exists, in Rice Creek. In addition, if the discharge is relocated to the St. Johns River, the additional dilution would ameliorate the concern regarding fish masculinization, and the phenomenon will "go away." To give an even higher level of assurance that the resource will be protected, the Department is requiring a study to evaluate and confirm that the issue is resolved. The process changes required in the permit, the potential for further dilution in the St. Johns River if it becomes necessary, and the evaluations required in the permit condition render it very likely that any potential for fish masculinization will be mitigated. Thus, to the extent that fish masculinization could be deemed a violation of the free- from standard, Georgia-Pacific has provided reasonable assurances that it will not cause the masculinization of fish in the St. Johns River. Petitioners did not offer any credible evidence establishing that any specific compound or substance would cause the alleged effects of endocrine disruption or fish masculinization. Indeed, Dr. Koenig acknowledged that he was unable to find in his literature search the mechanism or chemical that is alleged to cause fish masculinization. Likewise, Petitioners were unable to suggest any concentration of that substance which would lead to those alleged effects. Dr. Koenig expressed a belief that chlorinated organic compounds from the paper manufacturing process may be responsible for endocrine disruption. Dr. Koenig also opined that within the general process of paper manufacturing, the bleaching process in particular was a concern. To the extent that Dr. Koenig may have had a concern regarding endocrine disruption from his review of studies performed using data from 1996 through 1998, it is reasonable to conclude that this concern is ameliorated by Georgia-Pacific's conversion to chlorine dioxide bleaching in March 2001. There is no evidence to establish a relationship between the presence or absence of dioxin and fish masculinization. Compliance with Dissolved Oxygen Standard (and BOD Concerns) In Section K, Petitioners disputed whether Georgia- Pacific had provided reasonable assurance of compliance with the adopted dissolved oxygen standard. The proposed permit contains different permit limits for BOD for winter and summer, because the impacts of discharges are different during those parts of the year. Georgia-Pacific has shown a substantial downward trend for BOD. The Georgia-Pacific facility discharges mass loadings of BOD at quantities which are much less than what is required to meet discharge standards. A review of effluent data shows that even for the worst period for performance, Georgia-Pacific's effluent was well below the proposed permit limits for BOD. A review of BOD discharges over the period of January 2000 to August 2001 demonstrates a consistent ability of the facility to meet the proposed permit limits, as well as a general trend of improvement that reflects Georgia-Pacific’s upgrade of the treatment system. Georgia-Pacific will meet the minimum standards for dissolved oxygen in mixing zones. With additional process improvements, Georgia-Pacific will also experience additional environmental benefits in the reduction of chemical oxygen demand. N. Dioxin and "Related Compounds" As to dioxin, Petitioners alleged in Section L of their Petition that Georgia-Pacific may discharge dioxin in concentrations that could cause a violation of the free-from standard. The proposed permit includes a permit condition for a plan of study to assess levels of "TCDD" and "TCDF" in fish tissue in the receiving waters. Department witness Brooks was unaware of any regulatory authority to require fish tissue sampling for dioxin. Department engineer Kohn was also uncertain of any regulatory authority for the Department to test for dioxin in fish tissue. Mr. Kohn agreed with the proposition that when a proposed permit condition is not specifically authorized by rule or statute, the condition must be withdrawn if the applicant objects. However, in this case, Georgia-Pacific did not object to the inclusion of a permit limit of .014 picograms per liter of dioxin in its final effluent. As noted above, Georgia-Pacific established that under its current effluent conditions, following conversion to chlorine dioxide bleaching, the facility is "non-detect" for dioxin. The Department does not have any adopted standards for fish tissue concentrations. Petitioners presented very little evidence of dioxin concentration in fish tissue following Georgia-Pacific's conversion to ECF bleaching, and they opposed the introduction of such data into evidence. A review of available data shows that there was not a statistically significant difference between the level of bioaccumulation of dioxin in fish tissue in Rice Creek versus a reference creek. The Florida Department of Health has concluded, based on review of prior fish tissue data, that a fish consumption advisory for Rice Creek was not warranted. Total Suspended Solids In Section M, Petitioners have alleged that TSS in the effluent would cause various environmental problems. However, Petitioners did not allege that TSS in the effluent would lead to a violation of water quality standards, and they did not present any accepted testimony or other evidence to support such a theory. There is no adopted water quality standard for TSS. According to the WQBEL Technical Report, effluent levels of TSS are generally comparable to background levels in the St. Johns River. The primary wastewater clarifier is designed to remove fiber or other settleable solids from the effluent before it travels to the secondary treatment system. Total suspended solids in Georgia-Pacific's effluent are primarily derived from biota in the treatment system, rather than fiber from the industrial process. Georgia-Pacific has shown a substantial downward trend for TSS. The facility reliably discharges TSS at quantities which are much less than what is required to meet proposed effluent limits. A review of discharge data for TSS demonstrates that Georgia-Pacific would perform in full compliance with the proposed permit limits. Petitioners presented no evidence to the contrary. Petitioners likewise presented no evidence to quantify any impacts from TSS. Color, the Transparency Standard, and Related Issues Petitioners have also alleged that the color in Georgia-Pacific's effluent would lead to nuisance conditions in violation of Rule 62-302.500(1)(a). However, they did not allege any potential violation of the one parameter traditionally associated with effluent color: the Department's transparency standard. Elevated levels of color in the effluent reduces the ability of light to penetrate into the water column, with potential effects on the growth of aquatic plants. This is translated into a "compensation point," that is, the water depth at which the light level reaches one percent. The state transparency standard prohibits a discharge from causing a decrease in the compensation point of more than ten percent, relative to natural background. The rate of decrease of light within a water column is related to increased color levels. Analysis performed by Georgia-Pacific's consultants shows that a ten percent change in compensation depth corresponds to a seventeen percent increase in color above natural background levels. Under the proposed permit, color was used as a surrogate, or alternative measure, for compliance with the transparency standard. Color was not used as a surrogate for any parameter other than transparency. Georgia-Pacific will, with additional process improvements, see additional environmental benefits in reducing the color of its effluent. For the purpose of the application, Georgia-Pacific's modeling analysis assumed that based on process improvements, its effluent would have a color of 1202 pcu. EPA's technical team had opined that Georgia- Pacific would, with process improvements, achieve a reduction in color to 500 pcu. Georgia-Pacific had opined that the improvements would achieve a color of 1202 pcu. Department witness Owen opined that the color reduction would be in a range between those two figures. Petitioners did not present any contrary evidence as to the ability of additional process improvements to reduce effluent color. Accordingly, using the most conservative (least optimistic) figure, Georgia-Pacific has provided reasonable assurances that before a discharge to the St. Johns River would be authorized, it will reduce the color of its effluent to 1202 pcu. The proposed permit takes into account the potential that Georgia-Pacific's process improvements will achieve greater improvements in color than anticipated. Under the proposed permit, the Department would reduce the size of the proposed mixing zone if Georgia-Pacific demonstrates that the color of its effluent is lower than projected. The modeling analysis further demonstrates that based on a discharge to the St. Johns River, assuming an effluent color of 1202 pcu, the change in compensation depth is greater than ten percent in the vicinity of the proposed diffuser. A 734-meter mixing zone for transparency would be required for a discharge to the middle of the St. Johns River. The required area for such a mixing zone is 64,000 square meters. Antidegradation Review In Section P, Petitioners have generally alleged that the Department failed to conduct a proper antidegradation analysis. More specifically, they alleged that the proposed discharge would reduce the quality of the receiving waters below the classification established for them. Because Georgia-Pacific presently discharges to Rice Creek, and because a separate relief mechanism (the Administrative Order) authorizes the discharge to Rice Creek, it appears that the antidegradation issues relate solely to the proposed discharge into the St. Johns River. If the relocation had resulted in degradation of the receiving water, the Department would have regulatory authority in its Rule 62-4.242(1)(c) to consider whether Georgia-Pacific could minimize its discharge through other discharge locations, the use of land application, or reuse. However, Petitioners failed to allege in their Petition that the Department misapplied that regulatory authority. Moreover, under Department practice, when a new discharge or relocation of a discharge will result in an environmental benefit, it is not necessary to conduct a review of other discharge options. The Department undertakes an antidegradation analysis in, among other scenarios, cases where a discharge will result in achievement of minimum water quality standards for a given designated use but will lead to an incremental lowering of water quality. The purpose of this analysis is to assure that the societal benefits of the discharge outweigh the cost of that incremental lowering. The proposed permit will not lead to the increase in discharge of any parameter, and the permit is more stringent and adds additional parameters or limits. In addition, there is a trend of improved performance for the treatment system. In the present case, the Department has concluded that the proposed project will result in a significant improvement in water quality by the reduction of pollutants associated with exceedences of water quality standards in Rice Creek. Regardless of whether the discharge remains in Rice Creek or is relocated to the St. Johns River, the proposed Permit and Administrative Order will lead to an improvement in water quality as opposed to a degradation of water quality. Based on improvements with respect to specific conductance parameters, the ability to relocate the discharge into the middle of the St. Johns River where better mixing will occur (relative to the confluence of Rice Creek), and anticipated improvements in grass beds, the proposed pipeline will lead to a net environmental benefit in the St. Johns River and Rice Creek. The project as set forth in the proposed Permit and Administrative Order will be clearly in the public interest because it will result in full achievement of water quality standards and full compliance with the designated use of the receiving water body. The project will result in a substantial reduction in pollutant loading in Rice Creek and the St. Johns River, regardless of the whether the discharge will be located in Rice Creek or in the St. Johns River. The Department adequately evaluated other discharge locations, alternative treatment, and disposal alternatives. Studies, including a land application pilot project, demonstrated that land application was not feasible based upon impacts to groundwater resources. In their Petition, Petitioners did not dispute the Department's analysis of those factors under applicable rules. Given these considerations, it is found that Georgia-Pacific has provided reasonable assurances that it will meet water quality standards, and it is evident that Georgia-Pacific will not reduce the quality of the St. Johns River below its Class III designation. Further, the proposed discharge will be clearly in the public interest for the purpose of antidegradation analysis. Further, the proposed discharge into the St. Johns River is important to and beneficial to the public health, safety, and welfare, taking into account the policies set forth in Rules 62-302.100 and 62-302.300, Florida Administrative Code. The proposed discharge into the St. Johns River will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Instead, the proposed discharge would provide a benefit to fish and wildlife, and their habitats. No persuasive evidence was presented that the proposed discharge to the St. Johns River would adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Indeed, the record demonstrates a beneficial effect as to those factors. The proposed discharge has not been shown to be inconsistent with the applicable Surface Water Improvement and Management Plan (SWIM plan). Rather, the evidence shows that the proposed discharge would promote the implementation of the applicable SWIM plan. Monitoring Issues Section Q in the Petition generally challenged the adequacy of proposed monitoring requirements. As to this issue, the monitoring conditions imposed in the proposed permit are sufficient to ensure compliance with the proposed permit. Petitioner Young's witness Gilbert agreed that the proposed monitoring conditions were adequate to determine the result of process changes, that the proposed monitoring conditions were comprehensive, and that those conditions were beyond what the Department normally required. The Department does not propose to engage in water quality sampling at the end of the diffuser or at the edge of the mixing zone because of the technical difficulties associated with such an endeavor. Instead, the process for determining compliance is to determine the condition of the effluent and simulate water quality conditions of the receiving water body under low-flow conditions (when the river would be most vulnerable to pollution discharges). Such an approach is more protective because it eliminates variables that may not be representative of worst-case conditions. The evidence shows that the size of Georgia- Pacific's facility renders it impracticable for Georgia- Pacific to compromise the integrity of sampling results, as suggested by Petitioners. Flow Limitations In their Petition, Petitioners also contended that the proposed agency action violates Rules 62-4.240(3)(a) and 62-620.310(9)(a) by failing to specify the volume of discharge or flows. Under Department practice, flow must be specified but is not necessarily limited. Flow was adequately specified in the proposed permit, where the facility is described as 40 MGD wastewater treatment facility with a 22 MGD expected average flow. Volume limits are indirectly set through the establishment of a mixing zone and through mass loading limits in the permit, such as the loading limits for BOD and suspended solids. When flow is increased and the concentration of the effluent remains constant, the flow would be limited by the mass limits in the permit. Furthermore, the pipe and diffuser will have a hydraulic limitation, that is, a physical limitation on the amount that can physically be discharged. The pipeline and diffuser are hydraulically limited to 60 MGD based on the current design. Over a ten-year period, Georgia-Pacific has shown a trend toward reduced effluent flow. For example, in 1991, Georgia-Pacific discharged just under 40,000,000 gallons per day (GPD). In 2001, the discharge was less than 24,000,000 GPD. As a result of water conservation measures, Georgia- Pacific has been able to achieve a substantial reduction in effluent flow even when it experienced increased storm water flow into the treatment system. Because of stormwater inputs into the treatment system, it is very difficult to set a flow limit on the discharge from a pulp and paper mill. Indeed, the Department does not typically impose volume limits on NPDES permits for pulp and paper mills. Where volume or flow limits are imposed on pulp and paper mills, they are necessary in order to assure compliance with a specific standard. The Administrative Order Georgia-Pacific has submitted plans and a reasonable schedule for constructing, installing, or placing into operation an approved pollution abatement facility or alternative waste disposal system. No contrary evidence was presented, and no alternative construction schedule was proposed by Petitioners. In assessing a schedule to achieve compliance, the Department considered the time necessary to construct additional improvements as well as the reasonableness of the time period in light of Georgia-Pacific's capital investment. As part of this analysis, the Department also considered Georgia-Pacific's commitment to go beyond what they were legally required to do in environmental upgrades. The schedule of compliance is reasonable, given the cost and magnitude of the improvements required of Georgia-Pacific. Georgia-Pacific needs permission to continue its discharge to Rice Creek for a period of time necessary to complete research, planning, construction, installation, and operation of an approved and acceptable pollution abatement facility or alternative waste disposal system. The time period described in the Administrative Order will enable Georgia-Pacific to maximize the operation of the process improvements in order to determine if the discharge can meet water quality standards in Rice Creek. Given the cost and magnitude of the improvements required in the permit and Administrative Order, the schedule of compliance set forth in the Administrative Order is reasonable. There is no present, reasonable alternative means of disposing of wastewater other than to discharge it into waters of the State. In their Petition, Petitioners contested the Department's general antidegradation analysis but did not allege that any alternative means of disposal were improperly overlooked. The Department does not have specific regulatory authority to require facilities such as Georgia-Pacific to consider re-use as part of its antidegradation analysis, as it does with domestic waste discharges. Nonetheless, the Department did look at re-use and land application and determined that they were not feasible alternatives. Although it was not specifically required to do so by rule, Georgia- Pacific had exhausted every reasonable means to re-use (rather than discharge) water from its facility. Under earlier authorizations, Georgia-Pacific was not required to achieve standards for color, conductance, and chronic toxicity in Rice Creek. The granting of an operation permit will be in the public interest. This is because Putnam County will suffer an adverse economic impact if the facility is shut down and there will be net environmental benefits achieved through compliance with the requirements set forth in the Permit and Administrative Order. The Permit requires Georgia-Pacific to submit a written report to the Department if it appears that a mixing zone is needed for chronic whole effluent toxicity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order (1) issuing proposed permit number FL0002763 to Georgia-Pacific Corporation, as set forth in Department Exhibit 175, and with the change in the permit conditions as requested in Georgia-Pacific Exhibit 102 and proposed by the Department during the hearing, and (2) approving Administrative Order No. 039-NE as set forth in Department Exhibit 176. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 3rd day of July, 2002. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Timothy Keyser, Esquire Keyser & Woodward, P.A. Post Office Box 92 Interlachen, Florida 32148-0092 Ralf G. Brookes, Esquire 1217 East Cape Coral Parkway, No. 107 Cape Coral, Florida 33904-9604 Jessica C. Landman, Esquire 1200 New York Avenue, Northwest Suite 400 Washington, D.C. 20005 Terry Cole, Esquire Jeffrey Brown, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Teri L. Donaldson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Francine M. Ffolkes, Esquire Thomas R. Gould, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
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.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact In 1984, the South Florida Water Management District (SFWMD) issued surface water management permit number 48-00201-5 for a 515 acre project, Isleworth Golf and Country Club, located in southwest Orange County. The permit was issued to the developer, Isleworth Partners. Sometime after the permit was issued and the system was constructed, nitrate concentrations were detected in holding ponds BE-15 and 16. District staff speculated that the shallow ground water table was contaminated with residual nitrogen left from nutrient applications to a citrus grove previously on the site. They were concerned that the high nitrate ground water was seeping into the storm water storage ponds and would eventually be discharged into adjoining Lake Bessie, thereby affecting the water quality of the lake. Lake Bessie, along with other lakes in the region, was also experiencing rising levels. On March 24, 1988, Isleworth Partners submitted to the SFWMD its application number 03248-G, to modify the existing surface water management permit, to help prevent the water quality problems from occurring in Lake Bessie, as described above, and to ameliorate and mitigate against increased lake levels in Lake Bessie. It was not intended to provide flood protection for Lake Bessie. The solution proposed in the modification request, as well as in water use permit applications processed at the same time, was to retain substantially more water in storage ponds BE-15 and 16, and to recycle some of the water from those ponds for use in irrigating the golf course. There were no objections to the water use modifications which were processed with the surface water management permit modification, and the water use modifications were approved by the SFWMD governing board in June 1988. As they affect ponds BE-15 and 16, the water use modifications include pumping the ponds down to a new control level of 97 feet NGVD and using that water to irrigate the golf course. This process has already been implemented with beneficial results: the nitrate concentrations in the ponds have been reduced. The surface water management modification which is the subject of the application at issue is to raise the weir structure from 101.6 to 103 feet NGVD in pond BE-15 to provide complete retention of a 10 year/24 hour storm event without discharge to Lake Bessie from the pond. The under drain system at Pond BE-15 will also be plugged to prevent the existing permitted bleed down of the pond waters into Lake Bessie. This structural modification involves simple construction work and can be completed in one or two days. Ponds BE-15 and 16 are currently connected by an equalizer pipe, and will remain so. Under the modifications the ponds will be maintained (control elevation) at 97 feet NGVD through the use of existing permitted pumps. The maximum elevation of the ponds will be raised from 101.6 feet to 103 feet NGVD by the alteration of the weir. This means the waters in the ponds would have to top 103 feet to overflow and discharge, by way of an existing pipe, to the swales along Lake Bessie and thence into the lake. A 10 year/24 hour storm event is the amount of rainfall that will statistically occur in a 24-hour period once every ten years, or ten times in a 100-year period. The amount of rainfall in a 10 year/24 hour storm event is roughly seven and a half inches. The modification proposed by Isleworth Partners is intended to retain the runoff from that storm. Currently, under the system as permitted, only the first inch of runoff must be retained. This is about 2.4 inches of rainfall or approximately a 3-year/1-hour storm event. Substantially more water will be retained in Ponds BE-15 and 16 under the proposed modification. The staff of SFWMD recommended that the application be granted, with twelve standard limiting conditions and eight special conditions, including the following: * * * The permittee shall be responsible for the correction of any water quality problems that result from the construction or operation of the surface water management system. The district reserves the right to require that water quality treatment methods be incorporated into the drainage system if such measures are shown to be necessary. * * * (Isleworth Exhibit #3, p. 6) John Robertson, Donald Greer and Robert Londeree reside on Lake Bessie. John Robertson and Donald Greer are members and officers of a nonprofit corporation, the Petitioner in this case, Friends of the Lakes, Inc. These residents are concerned that the level of Lake Bessie has risen in the last few years and that it is becoming polluted. Long standing docks which had been primarily dry are now frequently under water. The residents have observed milky or greenish yellow water discharging from pipes from the Isleworth development. These residents, who are not parties to the proceeding, concede that, if the modification works as intended, the system will be improved and the impact to Lake Bessie Will be lessened. Petitioner, Friends of the Lakes, Inc., questions the reliability of the pumping system to maintain the 97.0 foot control elevation. If the ponds are maintained at a control level of 97.0 feet, the 10 year/24 hour storm water will be retained. If, however, through a series of smaller events, the level is higher than 97.0 feet, less capacity will exist, and the water will discharge sooner to Lake Bessie. The current permitted pump operates at 375 gallons a minute. Depending on whether the pump is operated continuously or part-time, it would take from four to twenty days to pump down the pond from a maximum 103 feet to the 97 foot level. The District found the pumping system to be acceptable at Isleworth because the development has a full-time maintenance staff of 35 people, of whom three work on the pumping system. A maintenance supervisor checks the pumps daily, and the developer has an agreement with a pump company to replace the pump, if needed, within four to six hours. The system is considered reliable and the increased pond holding capacity will insure that more water will be retained than under the existing permitted system. Stephen Miller is the professional engineer whose firm prepared the application for modification and the original application for the surface water management permit. He is aware of some changes in the project as constructed which differ from his design for the original system. These changes relate specifically to grading on the golf course and not, as suggested by Petitioner, to the operation of ponds BE-15 and 16. Stephen Miller believes that the modifications will do exactly what they are proposed to do. The application for the modifications took into account the existing conditions which differ from the permitted construction plans. Ronald R. Potts testified for Petitioner as an expert in geology and surface and ground water hydrology. He agrees that the application for modification meets all requirements of the SFWMD with the exception of a single standard condition: * * * 3. The permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition, the permittee shall obtain all necessary federal, state, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit (Isleworth Exhibit #3, P. 6.) The district staff report recommending approval for the modification request was sent to Orange County for its review and comment. Orange County made no objections. Within Orange County it is the engineering department which is responsible for the implementation and interpretation of the Orange County subdivision regulations as they apply to storm water management. The SFWMD does not attempt to enforce other agencies' requirements. The Orange County Engineer, George Cole, determined that neither section 10.1.2 nor section 10.4.4(D) of the Orange County Subdivision Regulations were applicable to the modification proposed by Isleworth. Section 10.1.2 requires that recharge to the Floridan Aquifer, where soils are compatible, shall be accomplished by providing for retention of the total run off generated by a 25 year frequency, 24 hour duration storm event from the developed site. Section 10.4.4(D) of the Orange County Subdivision Regulations requires that a pond design detain a 100 year storm event when discharge into a lake without a positive outfall is proposed. When the County first approved Isleworth's Planned Development, it set a specific requirement that the storm water management system retain the first inch of runoff and detain the difference between pre-development and post- development discharge for a 25 year/24 hour storm. "Retention" of storm water means that the water must be held on site and disposed of by some means other than discharge. "Detention" requires only that water be held back for a period of time before discharge. The Isleworth property is not located in a prime recharge area, as under its soils is a highly impermeable lens, commonly called "hardpan." Lake Bessie has a positive outfall, a pipe connecting Lake Bessie with nearby Lake Down. Although the pipe was plugged with debris for a period of years, it has been cleaned out and the potential exists for outfall from Lake Bessie in flood conditions. The County's 100 year/24 hour detention requirement would still allow the ponds to discharge more water to Lake Bessie than the proposed 10 year/24 hour retention design, and is, therefore, less restrictive. Lake Bessie presently is one of Florida's most pristine lakes with crystal clear water that is ideal for recreational purposes. The natural dynamic state of lakes is that over a period of time they evolve from oligotrophic, with clear water and a balanced system; to mesotrophic, with less water clarity, more nutrients, increased algae and less desirability for human use; to a eutrophic state, with even less clarity, choking vegetation, less fish and less pleasing appearance and utility. This occurs in a natural state as lakes fill in with decaying matter from the shore. Petitioner claims that discharge from Isleworth will hasten the death of the lake. Phillip Sacco testified for the Petitioner as an expert biologist and limnologist (one who studies fresh bodies of water). He performed a modeling analysis to determine the amount of phosphorus being discharged into Lake Bessie and he opined that the Isleworth development will cause Lake Bessie to change to a eutrophic state. A significant component of his analysis was his assumption that 920 acre-feet of water would be discharged into Lake Bessie as a result of the modification. (transcript pp. 557-558). The 920 acre feet is actually the total amount of water which enters Lake Bessie from the entire Lake Bessie basin, not just from the Isleworth property, and includes both surface water (2%) and ground water (98%). The analysis is discredited by the false assumption. Mr. Sacco also theorized that the interaction of nitrogen and phosphorus precipitated by the change in land use occasioned by the Isleworth development would produce deleterious effects on Lake Bessie's water quality: "Nitrogen is the dynamite; phosphorus is the fuse and the land use change of Isleworth is the match." The permit modification application at issue does not relate to a land use change. The change from orange groves to residential development occurred years ago and has already been permitted. In fact, the land change providing the ignition in Mr. Sacco's vivid metaphor is just as likely in the even earlier cultivation of the groves and use of nutrients in their production. The single result of the modification at issue will be less water being discharged into Lake Bessie than is currently permitted from the system, thus conserving the water quality present in the lake. The residents who testified are not parties to this proceeding. Although two of them established they are members and officers of Friends of the Lake, Inc., no evidence was produced regarding the corporation, its legal existence or purpose.
Recommendation Based on the above it is hereby RECOMMENDED: that a final order be issued granting the application for permit modification, and denying Isleworth Partners' request for costs and attorney's fees. DONE AND ENTERED this 17th of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1989. APPENDIX Case NO. 88-3056 The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS: 1-2. Adopted in part in paragraph 9. However, testimony on the dying trees was excluded as beyond the witnesses' expertise. 3-4. Adopted in part in paragraph 2, otherwise rejected as not based on competent evidenc. Adopted in paragraph 3. Adopted in part in paragraph 10, otherwise rejected as unsupported by the evidence. The pumps already exist and are permitted. Rejected as irrelevant Rejected as unnecessary Rejected as inconsistent with the evidence. Adopted in paragraph 12. Rejeceted as unsubstantiated by competent evidence; the proposed fact is also too vague and ambiguous to properly address. Rejected as unsupported by competent evidence. Rejected as irrelevant, unnecessary, or unsupported by competent evidence. 14-15. Rejected as unsupported by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence and irrelevant. Adopted in part in paragraph 16; the contribution by the development is rejected as unsupported by competent evidence. Rejected as unsupported by competent evidence. Addressed in paragraph 16. Rejected as contrary to the evidence. Rejected as irrelevant. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. 25-31. Rejected as irrelevant and unnecessary. Rejected as testimony summarized rather than findings of fact. Rejected as unecessary. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS: ISLEWORTH PARTNERS Adopted in paragraph 1, except the finding regarding the existing system meeting district requirements is rejected as irrelevant. Adopted in substance in paragraphs 2 and 3. 3-4. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraph 7. Rejected as cumulative and unnecessary. Adopted in part in paragraph 9, otherwise rejected as unnecessary. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 12. Adopted in paragraph 13. Included in conclusion of law #6. Adopted in paragraph 13. 14-19. Adopted in substance in paragraphs 14 and 15. Rejected as unnecessary. Adopted in paragraph 16. 22-25. Adopted in part in paragraph 16, otherwise rejected as unnecessary. Adopted in part in paragraph 4, otherwise rejected as unnecessary. Rejected as unnecessary. 28-31. Adopted in part in paragraph 9, otherwise rejected as unnecessary. 32. Adopted in paragraph 18 and in conclusion of law #2. SOUTH FLORIDA WATER MANAGEMENT DISTRICT 1-2. Adopted in paragraph 3 and 4. Adopted in paragraph 5. Adopted in paragraph 7. 5-6. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 13. 9-10. Adopted in paragraph 14. Adopted in paragraph 16, otherwise rejected as cumulative or unnecessary. Adopted in part in paragraph 14. COPIES FURNISHED: J. Alan Cox, Esquire Bogin, Munns & Munns 105 West 5th Avenue Tallahassee, FL 32303 Chris H. Bentley, Esquire W. Douglas Beason, Esquire Rose, Sundstrom & Bentley 2548 Blairstone Pines Drive Tallahassee, FL 32301 William Doster, Esquire Lowndes, Drosdick, Doster, et al., PA P.0. Box 2809 Orlando, FL 32802 James K. Sturgis, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680
Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue On June 7, 1991 the Department of Environmental Regulation (DER) released its intent to issue Permit No. DC05-194008, authorizing Florida Cities Water Company (FCWC) to construct a 300-acre restricted public access spray irrigation system for the land application of treated domestic wastewater (Sprayfield Permit). And, on August 6, 1991 DER released its intent to issue Permit No. MS05-194894, relating to stormwater management and management and storage of surface waters (MSSW Permit) for the sprayfield site. Petitioners Brevard Groves, Inc. and H & S Groves, Inc. (Groves), Parrish Properties, Inc., Parrish Management, Inc. (Parrishes), Atico Financial Corp. (Atico) and David and Eleanor Shreve (Shreve), each requested a formal administrative hearing challenging the issuance of the sprayfield permit. Groves requested a hearing challenging the issuance of the MSSW Permit. The ultimate issue is whether FCWC is entitled to these permits.
Findings Of Fact FCWC is a private utility company, with headquarters at 4837 Swift Road, Suite 100, Sarasota, Florida, 34231. FCWC's Barefoot Bay Wastewater Treatment Plant (the WWTP) provides water and wastewater service to the Barefoot Bay development in southern Brevard County, Florida. DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900, is an agency of the State of Florida which regulates domestic wastewater treatment and disposal facilities and permits their construction and operation. For domestic wastewater projects, DER is also charged with reviewing applications for stormwater management and management and storage of surface water pursuant to an operating agreement between DER and St. Johns River Water Management District. David and Eleanor Shreve are beekeepers who live approximately a quarter-mile from the proposed sprayfield. They maintain beehives in the groves and woods surrounding the proposed site. The remaining Petitioners own citrus groves that are adjacent to, or in the immediate vicinity of the proposed site. These groves are producing and are actively maintained. The WWTP has a treatment capacity of 0.9 million gallons per day (MGD). As of July, 1990, the WTTP was treating and disposing of effluent from approximately 4,200 residences in the Barefoot Bay development. At buildout, within the five-year life of the Sprayfield Permit, the WWTP will serve 5,000 residents, and will generate approximately 0.6 MGD of wastewater. Disposal of treated effluent is presently achieved by a 40-acre sprayfield, storage ponds and direct discharge of pond overflow to the San Sebastian Drainage District Canal (Canal). In 1986, DER issued FCWC a warning notice to the WWTP regarding an unlawful discharge to the Canal. FCWC met with DER to discuss options to correct the discharge. In 1988, FCWC entered a Consent Order that would allow FCWC to discharge treated effluent into the Canal until a deep injection well could be built for alternative disposal. FCWC also discussed other alternatives with DER, such as golf course irrigation. The Consent Order was amended in 1991 to provide for land application in lieu of deep injection. In accordance with the amended Consent Order, FCWC has submitted monthly monitoring reports to DER, for the WWTP and for the storage (percolation) ponds. DER has never issued a notice of violation to FCWC for failure to comply with monitoring in the Consent Order. The Site The proposed sprayfield site is divided into two large tracts, the "northern parcel" and the "southern parcel." The site is primarily citrus groves. Although some citrus trees were damaged by a freeze in recent years, most are still viable. Most of the areas between the trees and limited areas without trees are covered with dense grasses and weeds. The site, and the surrounding groves, have been significantly altered to provide sufficient drainage for citrus trees, which require well-drained conditions. The area is covered by shallow ditches (swales), between mounded rows of earth comprising beds for the trees. These citrus mounds, created by soil cast up during excavation of the swales, occur on 60-foot centers and rise 2 1/2-3 feet above the bottom of the swales. The swales have pipes at each end, which discharge into an agricultural collection ditch or the Canal. Each block of citrus is surrounded by a collection ditch some 8-10 feet deep. All collection ditches ultimately discharge into the Canal, which borders the site on the north and is approximately 20 feet deep and 100 feet wide. The collection ditches and Canal prevent the entrance of offsite surface water run- off into the site and receive surface water run-off and groundwater seepage from the site. The Sprayfield Project The project is proposed in two phases. Phase I meets total annual effluent disposal needs of 0.55 MGD, using both the proposed sprayfield and the existing 40-acre sprayfield, which will continue in operation for both phases of the project. Phase II meets the total annual effluent disposal needs of 0.6 MGD at build-out. This results in an average annual application rate of 0.54 inch/week or approximately 28 inches per year on the proposed sprayfield. The project is designed to eliminate the current discharge to the Canal. The effluent will be given secondary treatment with basic disinfection. The treated effluent will be pumped from the WWTP to storage ponds and then to the proposed sprayfield. The existing ponds will be retrofitted as storage ponds for Phase I. An additional storage pond will be constructed at the proposed sprayfield for Phase II. The spray irrigation system will operate primarily with four traveling gun sprinklers. Two sets of fixed-head sprinklers will also be used for the two small triangular portions of the site. The traveling sprinklers will be operated for approximately 5.9 hours/day during Phase I and 6.5 hours during Phase II. The four traveling sprinklers will run simultaneously on four of the thirty-three travel lanes (tracks) located between the swales covering the site. Ordinarily each track will be sprayed every eighth day. To make up for days when irrigation is not possible, additional disposal capacity can be obtained by operating the sprinklers for extra shifts on tracks not previously irrigated that day. The site will be mowed regularly, and any accumulated grasses or debris will be removed. Any areas presently in weeds, or the areas not covered by vegetation are reasonably expected to fill in with dense grasses when irrigation commences. Maintaining the grass cover in the swales will prevent erosion of soil and debris into the swales and reduce the need for maintenance of clogged swale outlet pipes. The system is designed and will be operated to avoid ponding or direct surface run-off of sprayed treated effluent. However, there may be some very limited potential for droplets of treated effluent clinging to vegetation being washed into the swales by a heavy storm event immediately following an application. Therefore, the sprinklers will not be operated when the water table is closer than four inches from the bottom of the swales. Operators will know when to spray by reading automatic groundwater elevation monitoring gauges installed in several places throughout each block of citrus, including the middle. In addition, an automatic device will shut off sprinklers during a rainfall, so that no significant amount of treated effluent will leave the site mixed with stormwater. The site is bordered on three sides by groves and on one side by undeveloped vacant land. The width of the proposed buffer zone from the sprayfield wetted area to the site property line is at least 100 feet, as required in Rule 17-610.421(2), F.A.C., and is substantially wider for extensive lengths of the project border. The buffer is approximately 130 ft. wide on the eastern boundary of the northern parcel, approximately 250 to 235 ft. wide on the western boundary of the northern parcel, and approximately 225 to 160 ft. on the western border of the southern parcel. The distance between the wetted area and adjacent property owners' boundaries is much greater than 100 ft. for other portions of the sprayfield borders due to linear features that provide additional buffering. It is over 200 ft. from the wetted area to the nearest property owner on the northern border of the northern parcel because of the San Sebastian Canal, and 160 ft. on the southern border of the northern parcel and the southern and eastern borders of the southern parcel because of the 60-foot wide Micco Road right-of-way. Aerosal Drift and Other Off-Site Impacts While Petitioners allege that their groves would be contaminated by aerosol drift from the site, they presented no expert or other competent, substantial evidence on the extent or volume of such drift. FCWC air modelling expert, Dr. Robert Sholtes, used the EPA Industrial Source Complex Model (ISC), the most commonly used predictive model in the air pollution community, to evaluate the project's aerosol drift. While the sprinklers are planned to be operated a maximum 6.5-hour shift, a conservative 7.0-hour shift was used. Other data inputs to the ISC Model were hourly windspeeds at the Daytona Beach weather station for five years; sprinkler nozzle size and pressure; and droplet size, distribution and settling rates obtained from the American Society of Agricultural Engineers. The model yielded the annual average deposition of sprayed effluent in grams per square meter (gm/m2) outside the wetted area for one sprinkler as it moves along its track. The accumulated deposition off the site property line, considering operation of all tracks, can be predicted using these results. Because heavy deposition of droplets settles out fairly rapidly, the aerosol from tracks farther into the site does not significantly affect the maximum impact shown for one track. Due to the prevailing east and west coastal winds, heaviest deposition will occur off the eastern and western property line of the site. The volume of treated effluent that will be blown offsite is not substantial. The greatest volume is approximately 1000 millimeters/square meter/year (ml/m2/yr) off the eastern property line out to approximately 50-75 feet, and 500 ml/m2/yr off the western property line out to approximately 75 feet. A maximum of 100 ml/m2/yr is predicted and a maximum of 50 ml/m2/yr is predicted off the southern and northern lines, respectively. In practice, volumes of aerosol drift off-site will be below the predicted levels in areas where trees occur in the buffers. Most significantly, there are existing rows of citrus trees along the eastern border of the northern parcel within the buffer area, which is the area of heaviest predicted drift. In addition, aerosol drift will be minimized by operating procedures. Wind speed and direction will be monitored at the site. If the wind is over 20 miles per hour, there will be no spraying. For winds of lesser speeds, the spray tracks on the edges of the sprayfield will not be used during a strong directional wind, e.g., for a wind blowing east, the track on the eastern border will not be utilized. The tracks are on approximately 240-foot centers. Therefore, elimination of spraying for the track on the edge of the site will have the effect of withdrawing the aerosol drift deposition pattern 240 feet further into the sprayfield. Considering that the farthest extent of the maximum 1000 ml/m2/yr levels of drift is 75 feet, such a program will be very effective in minimizing drift. Because no motors will be required to operate the site, significant noise is not expected. The treated effluent will not contain significant amounts of odor-causing constituents, and odors are not expected. Finally, lighting is not planned on the proposed sprayfield, so this is not expected to be a source of offsite impact. Assurances for Proposed Application Rate A determination of the site's ability to accept treated effluent at the maximum proposed application rate of 0.54 inch/week without adverse effects was based on (1) the hydraulic loading capacity of the site to receive the applied water, considering soil permeability and other physical site conditions, and (2) the allowable nitrogen loading rate, considering the ability of the vegetation to uptake the nitrogen contained in the treated effluent. The U.S. Environmental Protection Agency (EPA) publishes a general manual for technical assistance in designing land application systems across the United States. This manual, "Land Treatment of Municipal Wastewater - Process Design Manual" (EPA Manual), is cited as a general technical guidance source in DER Rule 17- 610.300(4), F.A.C. The EPA Manual contains formulae for the calculation of both the hydraulic loading capacity and the allowable nitrogen loading rate. The EPA Manual recommends use of the more restrictive of the hydraulic loading capacity or the allowable nitrogen loading rate as the hydraulic loading rate for the project. Hydraulic Loading Capacity. A hydraulic loading capacity of 0.63 inch/week for the proposed sprayfield was determined based on field exploration, laboratory testing, hydrogeological conditions and engineering evaluation, summarized in a report included in the application. This 0.63 inch/week hydraulic loading capacity is above the maximum proposed application rate of 0.54 inch/week and substantially below the maximum rate of 2 inches/week allowed by DER Rule 17-610.423(4), F.A.C. EPA Equation 4-3 for hydraulic loading capacity balances the volume of water that enters the site with the volume of water that leaves the site. Values in Equation 4-3 are evapotranspiration, which is the water released to the atmosphere from soil surfaces and by vegetation (ET); precipitation rate (rainfall); and Pw, which is water removed by vertical percolation downward through the soils. Due to the high vertical permeabilities of the sandy soils at this site, unrefined use of EPA Equation 4-3 would give a very high hydraulic loading capacity for this project, on the order of 10 times that proposed by FCWC. Therefore, a more detailed input/output water balance formula was used to determine annual hydraulic loading capacity (applied effluent in the formula) of 0.63 inch/week: rainfall + applied effluent + groundwater inflow = evapotranspiration, + groundwater outflow + surface run-off + evaporation + irrigation losses. The average annual rainfall, based on data from the U.S. NOAA weather station at Melbourne, is 48.17 inches. Due to the isolating effect of the deep ditches surrounding the site, groundwater inflow is considered to be so negligible that it was not assigned a value for the equation. ET, based on standard scientific references, is 45 inches/year for citrus trees. An additional 20 inches/year loss is attributable to grasses covering soil surfaces. In lieu of vertical percolation, groundwater outflow laterally through the surficial aquifer was projected to be 1.8 inches per year, based on hydraulic conductivity and soil permeabilities for the site. Surface run-off of stormwater was estimated to be 10 inches per year. Irrigation losses were estimated at 15% of the amount of applied effluent. Pond Storage Capacity. The proposed application rates for the two phases of the project are annual averages. The volume of storage needed for occasions when conditions preclude application must be determined. DER requires the calculation of storage by analytical means for the 10-year rainfall recurrence interval, using 20 years of rainfall data, and accounting for all water inputs on a monthly basis, using site-specific data. A minimum storage volume equal to three days application is required. Rule 17-610.414 (2), F.A.C. Calculations presented in the application met these requirements and showed storage needs of 8.08 million gallons (MG), or approximately 15 application days' volume, for Phase I; and 15 MG, or 25 application days for Phase II. Additional storage calculations, reflecting the monthly variations of wastewater inflow due to the seasonal population, were prepared for Phase I. These calculations reflected the same storage requirements. Petitioners' Allegations Regarding Application Rate and Storage Although they had prepared no analyses, performed no calculations, conducted no laboratory tests and undertaken only one field test (test hole for groundwater level), Petitioners' witnesses asserted that site conditions precluded successful operation of the sprayfield at the maximum proposed application rate of 0.54 inch/week. They asserted that swale pipes would plug and a clay "hardpan" at the bottom of the swales would prohibit percolation of stormwater. Thus, the swales would be full of water for long periods and further application would be precluded. They also asserted that significant volumes of treated effluent would leave the site as run-off. They alleged treated effluent would enter the swales directly from accumulation of spray and indirectly from seepage from the sides of the citrus mounds. Finally, Petitioners asserted 15 days of storage was inadequate because the site would be too wet for application for at least a month. FCWC presented testimony and evidence based on site reviews, numerous field and laboratory tests, computer modelling, and calculations that successfully refuted these allegations. Petitioners' expert in grove management and local soil conditions, Mr. Burnette, stated that extremely wet conditions required pumping of swales for weeks at a time in nearby groves. FCWC's experts asserted that the proposed sprayfield site currently has, and will continue to have, under proper maintenance, much better drainage than Mr. Burnette's groves, where regular grading of swale inverts and herbicide applications denude soil and cause erosion which plugs pipes and backs up water in the swales. In addition, unlike the situation described in Burnette's groves, the proposed site contains no swales that are lower in elevation than the collection ditches, thereby facilitating stormwater run-off. The top layer of soil comprising the citrus mounds and the swales is relatively clean sand. Petitioners' so-called "hardpan" is a slightly clayey to clayey fine sand layer which separates the upper sand from a thick layer of very clean, beach-type sand. FCWC geotechnical experts determined the clayey sand layer was 18 to 24 inches below the bottom of the swales. Without any field testing, Petitioners' expert hydrogeologist, Mr. Oros, asserted that the clayey sand layer was at the bottom of the swales. In contrast, Mr. Burnette stated that the clayey sand layer occurs four to eight inches below the bottom of the swales on the adjoining groves, where the graded swales are 10 to 14 inches deeper than the shallow swales on the proposed sprayfield site. Thus, Mr. Burnette's testimony supports the FCWC conclusion that this layer is found up to 2 feet below the swales on the proposed site. Moreover, contrary to Petitioners' assertions that the layer acts as a "hardpan", water can pass relatively freely through it and the water table will not "perch" above it. The U.S. Department of Agriculture Soil Conservation Service (SCS) reports a permeability value for this soil type of one to 12 feet per day. Dr. John Garlanger, FCWC expert in subsurface investigation and soil mechanics, conducted a field inspection of the soil and reviewed grain size distribution analyses. He determined that the permeability of the clayey sand layer is about one foot of water per day. Petitioners' expert hydrogeologist concurred that the layer could have this permeability rate. Soil is at the "wilting point" when its water content is too low for plants to transpire additional water. Soil is at "field capacity" when added water "fills up" the soil and it becomes saturated. The "water table" is the level at which the soil is totally saturated. Petitioners erroneously assert that 90% of the 0.54 inch of treated effluent will travel straight down to the water table. Instead, due to capillary action, the first foot of the sandy soil at the site can store about 0.6 inch of water between the wilting point and field capacity. If there is no rain between applications, 100% of the 0.54 inch will be transpired by vegetation out of the first foot of soil. This "resets" the soil moisture content to the wilting point in preparation for another application. If heavy rains cause the soil to remain at field capacity rather than returning to the wilting point through ET, the soil can still absorb up to 2.25 inches of water per foot, or three-fourths to one inch of water per four inches of soil, before it reaches saturation. Therefore, even if the soil is saturated up to 4 inches below the swales, the top 4 inches of soil will still absorb the 0.54 inch of treated effluent without reaching total saturation or causing any run-off. If subsequent heavy rains saturate the remaining soil and raise the water table to the bottom of the swales, the excess rainwater which falls on the saturated surface will run off as stormwater, and most of the treated effluent will remain stored within the soil. Furthermore, because the water table is proposed to be measured at centers of the blocks where, due to distance from the drainage ditches, the water table is closest to the surface, soil storage capacity across the site will exceed these projected levels. Petitioners' experts also asserted that if it rains after the 0.54 inch application, the groundwater will "mound" up below the citrus mounds, creating a hydraulic gradient or head differential (between the water table under the citrus mounds and the water table below the swales) sufficiently great to cause the treated effluent in the mound to flow toward the swales and seep into them from the sides of the citrus mounds. Mr. Golding admitted that such seepage would not occur when the groundwater table is below the bottom of the swales. Nevertheless, he opined that seepage of treated effluent would be considerable because he believed, based on opinion and experience alone, that the water table would be at the bottom of the swales or higher for at least 30 days straight in a "wet year." FCWC's experts successfully refuted these assertions. A significant portion of the treated effluent falling onto the citrus mounds will be stored in the soil as described above. The treated effluent (only applied when water level is 4 inches below the swales) that actually reaches the water table will cause only a very slight "water mound" (only 2 inches in 30 feet) which will not produce any appreciable "head" or lateral flow to the swales. On only three occasions (a total of 8 days) during the wettest year in ten did the "water mound" rise above the bottom of the swales resulting in any groundwater seepage from the citrus mounds into the swales. Thus, during the entire wettest year in ten, less than one-half of 1% (0.12 inch of the approximately 28 inches) of annual applied treated effluent, very diluted with groundwater, might seep from the mounds into the swale. Contrary to Petitioners' expert's assertion that the seasonal high water level (SHWL) was not provided by FCWC, this information was supplied in the application and was reaffirmed by calculations of Dr. Garlanger at rebuttal. The importance attached to the SHWL for this project was not adequately explained by Petitioners. FCWC experts explained that the SHWL is the average (NOT maximum) height of the groundwater during the two to six wettest months of the year. Because the water table varies throughout the year, it is the calculation of the position of the water table from month to month that is significant and is required by DER. This monthly changing water table was the basis of storage water balance calculations contained in the application. Even though the monthly storage calculation in the application meets the DER/EPA requirements, Petitioners' witnesses asserted that the application did not indicate how many days the water table would rise to four inches below the swales and thus how many days spraying was precluded and storage was required. Dr. Garlanger analytically calculated the water table beneath the site, using Darcy's Law, and known parameters at the site, such as the depths of the ditches, the geometry and relative distances, and the thickness and permeability of the soil layers. Thus, although never required for any of the 100 land application projects he has evaluated, Dr. Garlanger performed computer modelling and calculations to predict the daily level of the water table beneath the swales for both Phase I and II during the wettest year in ten. Water inputs in his model included treated effluent and daily rainfall from an actual year (1969) when rainfall reached the levels of the statistically wettest year in ten. Water losses were soil storage, ET, distribution losses, deep percolation and run-off. Treated effluent was not applied when the model predicted that the water table would be higher than four inches below the bottom of the swales and when there was significant rainfall (more than one-hundredth of an inch). This modelling predicted that 6.1 MG/11-day storage was needed for Phase I. Thus, the project as proposed has substantially more storage than needed, with a proposed 8.1 MG/15-day storage. The model produced similar results for Phase II, showing a total 10.1 MG/18-day storage need compared with the proposed 15 MG/25-day storage. Petitioners also challenged various "irrigation efficiency" figures used by FCWC experts. All water leaving a water source, in this case the WWTP, does not reach the roots of the crops for which it is intended. "Irrigation efficiency" expresses this fact as the percentage of water pumped that is used by the vegetation. In the monthly storage water balance calculations the applicant used an "irrigation efficiency" of 70% of the total applied treated effluent, which is recommended in IFAS Bulletin 247 and in the USDA, SCS, "Florida Irrigation Guide"; 15% of the applied treated effluent was attributed to "irrigation losses" in the calculations in the application to determine the hydraulic loading capacity; and Dr. Sholtes stated that data he used indicated that 94% of "the water that came out of the nozzle reached the ground" within the wetted area of the site and the remaining 6% was aerosol drift and evaporation. Petitioners' expert questioned whether an irrigation efficiency of 70%, 85% or 94% should have been used and suggested that the calculations should be redone. The expert misunderstood the terms, comparing the proverbial apples and oranges. With a 70% irrigation efficiency, 30% treated effluent is lost to the plants. Only a small portion of this 30% loss is attributable to aerosol drift and evaporation in the air. Most of the 30% treated effluent hits the ground but is still lost to the plants through evaporation of treated effluent intercepted on plant leaves, losses from the distribution system, e.g., leaky fittings at the WTTP, and percolation of water below the reach of plant roots. The "irrigation losses" (15%) in the application include all of those types of losses, except the treated effluent losses through percolation. This approximately 15% of the total treated effluent appeared as a separate value from "irrigation efficiency." Water Quality Assurances Nitrogen Loading Rate. Because nitrogen is generally the constituent of most concern for sprayfields, EPA Equation 4-4, which is intended to produce a conservative result, projects nitrogen loading possible without exceeding the groundwater standard for nitrate. Two FCWC experts calculated the allowable nitrogen loading rate. James Christopher, project engineer and expert in water quality and chemistry, adjusted the EPA equation to reflect stormwater leaving the site, which is a more technically correct refinement of the equation and has the effect of lowering the allowable rate. A "U value" (the variable for rate of nitrogen uptake by crop)of 100 kilograms/hectare/year (kg/ha/yr) was used by James Christopher. Dr. Harvey Harper, another FCWC water quality expert, an environmental engineer, who has taught numerous university courses in wastewater treatment and has been involved in scientific studies of pollution removal, also calculated the nitrogen loading rate for the annual average rainfall and the wettest year in ten. He did not adjust EPA Equation 4-4 for stormwater run-off, because Petitioners had questioned any deviations from the formula. He used a U value of 150 kg/ha/yr, because he considered a value of 100 too low to be realistic. He used the highest nitrogen value in data from the WWTP. Other values he used in the equation were nearly identical to those of Mr. Christopher. The results were an allowable nitrogen loading rate of 0.75 inch/week for a year of average rainfall and 0.93 inch/week for the wettest year in ten. These rates are substantially higher than the proposed gross hydraulic loading rate of 0.54 inch/week. Petitioners' expert, Dr. J. P. Subramani, asserted that a U value of 0 kg/ha/yr should have been used, although he admitted that a site with a U value of 0 kg/ha/yr would be bare sand devoid of vegetation. The U values of 100 and 150 kg/ha/yr used by FCWC were extremely conservative. The EPA Manual provides U value ranges for forage grasses, at a low of 130-225 kg/ha/yr for bromegrass, to a high of 400-675 kg/hayr for coastal bermuda grass. Ignoring the testimony of FCWC witnesses that the grass would be mowed and removed from the site, Dr. Subramani supported his opinion only with the unfounded contrary assertion that the vegetation on site will not be harvested and removed as a crop. Petitioners alleged that discharges from the site would contaminate surface and ground waters and otherwise adversely affect water quality; inadequate renovation of pollutants would take place in the soil; and the receiving waters were already below standards. Petitioners' experts did no studies or analyses, nor did they predict expected concentrations for any parameters for sprayed treated effluent leaving the site as surface waters or groundwaters. Petitioners' exhibits regarding water quality issues consisted of two single-day monitoring reports for the existing WWTP discharge and the Canal and a set of 1990-91 water quality report sheets for the WWTP. FCWC's expert, Dr. Harper, analyzed the project's impacts on groundwater and on surface waters (the Canal) if the treated effluent were to leave the site as surface run-off in the swales, as groundwater seepage into the collection ditches, or as aerosol drift. Based on 1990-91 water quality monitoring of the WWTP's existing treated effluent, Dr. Harper projected the concentrations of parameters of concern for the treated effluent to be sprayed at the site. Although monitoring of heavy metals is not required at the WWTP, he also projected levels for these parameters based on EPA figures and existing data from two larger domestic wastewater treatment plants. Because those two plants have contributions from industrial and commercial components not found at the WWTP, the projections substantially over-estimated heavy metals expected for the WWTP. Groundwater Impacts. Dr. Harper estimated the pollution removal efficiencies for treated effluent traveling through approximately one foot of soil by reference to the EPA Manual and a study he had performed. He then applied these efficiencies to the projected concentrations for the sprayed treated effluent. Even at maximum projected concentrations, the results showed that projected constituents would be at or better than groundwater quality standards after renovation in the soil. Thus, due to low levels of constituents of concern, including those for which no numerical standard is provided in the rules, the project will not cause groundwater water quality violations and will have no adverse effect on the biological functions in the groundwaters directly underlying the site. Contrary to Petitioners' assertions, DER witnesses stated that DER does not interpret provisions of Rules 17-600.530(4) and 17-610.310(3)(c)4, F.A.C., as requiring background groundwater samples in the application. Because research has shown that groundwater quality results for sprayfields are generally very good, DER routinely defers such sampling until after permit issuance. Thus, the groundwater monitoring plan in the application and in the draft sprayfield permit provides that all monitoring wells will be sampled to establish background water quality and results submitted to DER prior to spray irrigation. DER's expert witness in environmental engineering and wastewater land application design, Christianne Ferraro, as well as John Armstrong, DER's environmental specialist in site contamination clean-up, stated that they had reviewed groundwater monitoring currently provided by FCWC for the WWTP. They found no nitrogen violations. Surface Water Impacts. The preponderant evidence showed that treated effluent will not flow directly into the swales. Therefore, FCWC proved it will not leave site as surface run-off. However, in order to project the worst-case water quality evaluation for droplets greatly diluted by rainwater or groundwater which may enter the swales, it was assumed that all treated effluent landing within swales "made of glass" would run off directly into the Canal. In addition, uptake, removal or dilution likely to occur in the collection ditches was ignored. Pollution removal efficiencies for grassed swales (based on a year-long study) were applied to the projected concentrations for the treated effluent. After renovation in the swales, any treated effluent leaving the site would contain concentrations for parameters of concern at or better than surface water quality standards. Therefore, water quality in the receiving surface waters will not be violated. Due to removal efficiencies for soils, the treated effluent leaving the site as groundwater seepage into the collection ditches is expected to meet surface water quality standards. In addition, the trace quantity of effluent (0.12 inch for wettest year in ten) which may seep into the swales will reach the San Sabastian Canal only after being greatly diluted within the groundwater and filtered and purified in the soil in the citrus mounds and grassed swales. Even projecting ten times the amount of aerosol drift predicted for the project, the water quality impact of any sprayed treated effluent entering the Canal as drift is so small as to be insignificant. Ambient Water Quality. The existing discharge is having minimal effect on the water quality of the Canal. Furthermore, by eliminating the direct discharge, the project will reduce the present impacts on the Canal by 92-99%. Nonetheless, Petitioners suggest that the project may further degrade ambient waters which they allege are already below standards. Dr. Harper assessed the ambient water quality characteristics of the Canal, which is Class III fresh surface water and the ultimate receiving water for the site. Even including water quality data for the Canal put in evidence by Groves, the Canal is not currently at or below any state water quality standards for Class III waters, except for occasional Dissolved Oxygen (DO) levels. Levels of DO in sprayed treated effluent are expected to be very high. Even if groundwater seepage into the collection ditches and the Canal from the proposed sprayfield contains low levels of DO due its travel underground, it will not lower levels of DO in the ambient waters because the groundwater will also be low in BOD, which depresses DO. Thus, groundwater seepage is expected to have a neutral effect on ambient DO or to increase DO levels due to its diluting effect on BOD. Groundwater inflow to the site is negligible but outflow occurs at a significant measured rate. The only significant inputs are sprayed treated effluent and rainfall. Therefore, the groundwater under the site will eventually reach a stable condition where its constituent levels are the average of the constituent levels in rainwater and the treated effluent. The treated effluent to be applied on this site is at or above state groundwater standards. Necessarily, regardless of the condition of the existing groundwater it cannot possibly be degraded by the treated effluent to below state standards and may well be improved by it. Thus, FCWC has provided reasonable assurances that Rule 17- 600.530(4), F.A.C., has been met, without monitoring of ambient groundwaters in the application. The deposition of treated effluent will not violate the standard that all waters of the state shall be free from components which, alone or in combination with other substances, are present in concentrations that are carcinogenic or teratogenic to humans, animals or aquatic species or that pose a serious threat to public health, safety or welfare. Human Health Risk and Contamination. Petitioners allege that the sprayfield poses a hazard for contamination of their properties. They produced no witness or evidence of contamination other than experts in grove management, citrus production and management, and Petitioners themselves, who expressed scientifically unsubstantiated fears of the impact of the sprayfield on human health or the marketing of their fruit and honey. FCWC expert Dr. Christopher Teaf, who teaches biology, toxicology and risk assessment at Florida State University and is also president and principal toxicologist with a firm doing hazardous substance and waste management research, determined that the project poses no off-site contamination hazard. Pathogens. Fecal coliform is a standard measure for the health hazards of treated effluent based on an indicator group of microbiological organisms, present in the intestinal tracts of all warm-blooded animals as well as a number of insects and cold-blooded species. These organisms do not themselves ordinarily cause human disease, but may indicate the presence of other pathogenic organisms. Coliform bacteria are common in water bodies in general, and the state limit for these bacteria is 200/100 ml. Rule 17- 302.560(6), F.A.C. The World Health Organization has concluded that levels as high as 1,000/100 ml constitute an adequate standard and will not be associated with human disease. Only extremely limited numbers of bacteria can survive the hazardous journey from the WTTP to the Petitioners' property. First, required chlorination at the WWTP will reduce the coliforms to no more than 200/100 ml. At that level, pathogenic bacteria are negligible, if present at all. Pressures during ejection from the spray heads will cause a 70-90% mortality rate. Once airborne, bacteria will be killed because of temperature, ultraviolet radiation and desiccation. As water drops evaporate, constituents become more concentrated and the drops become toxic environments for bacteria. Bacteria falling to earth are filtered in the first few inches of surface soils. Any organisms borne off site will find that, due to the antibacterial qualities of citrus peel and fruit and the plethora of chemical agents routinely applied, the adjacent groves are an extremely inhospitable environment. Too few bacteria will survive at FCWC's proposed application levels, or at 10 times those levels, to constitute an infective dose and contribute to the incidence of human disease. Thus, treated effluent in the form of aerosol drift will have no adverse effect on the health of humans or otherwise cause contamination of areas adjacent to the proposed sprayfield. Consumption of Fruit. Bacteria are not taken up by the plant roots and the aerosol drift will not have any effect on the actual health of the citrus trees themselves. The minimal deposition from spray will be removed through washing required by governmental standards to remove dirt, grime and other contamination, such as fungicides, herbicides and pesticides applied as a normal practice in the citrus industry. Based on fifteen years of scientific literature, including the EPA Manual, crops irrigated with treated effluent do not contribute to human health problems in populations that consume those crops. With application of treated effluent with bacterial concentrations, even 10,000 to 100,000 times higher than the standard, there has been no incidence of human disease related to the consumption of such crops. Part II of Rule 17-610, F.A.C., "Reuse: Slow rate land application systems; restricted public access;" governs the type of sprayfield proposed by FCWC. Petitioners alleged that, due to the proximity of their groves and beekeeping activities, higher levels of treatment than those in Part II should be required. They argued that "advanced wastewater treatment" (AWT), defined in Section 403.086(4), F.S., would be more appropriate. This statute gives DER the discretion to require AWT when it deems necessary. Section 403.086(1)(a), F.S. However, AWT would not meet the requirements of Part III of Rule 17-610, which governs irrigation ("direct contact") of edible food crops and requires Class I reliability for treatment which is not required for AWT. Section 403.086(4), F.S.; Rule 17-610.460 and 17-610.475, F.A.C. Adjacent land uses were a part of the permit review for this project required in Part II. Buffer restrictions provide protection from the sprayfield so that levels of deposition are negligible compared to those when spray irrigation is applied directly at the food crop site. Thus, by its decision to issue this permit, DER recognized that minimal aerosol drift is not the "direct contact" envisioned in Part III and that because the project did not pose a hazard to adjoining groves higher levels of treatment are not necessary. Aerosol drift from treated effluent will have no effect on human health due to contamination of honey or adverse effects on the Shreve's bees located near the proposed sprayfield. Natural enzymes in unpasteurized honey are hostile to bacteria. The Shreves have never experienced a problem with the existing forty acre sprayfield even though it is accessible to their bees and has been in the area as long as the bees have. Petitioners allege that the sprayfield will attract birds, creating an aviation hazard to airplanes using the grass airstrip owned by Petitioner, Parrish Properties. Mr. Parrish, who is a licensed pilot, asserted that water ponding on the site and the mowing operation will attract birds. Both the proposed sprayfield and the surrounding groves will be mowed and irrigated and thus will provide the same type of mixed grass and citrus tree habitat as presently found in the groves. Therefore, Petitioners are currently attracting the same type and number of birds to their groves as FCWC's proposed sprayfield will attract. FCWC's expert in botany and ornithology, Mr. Noel Wamer, observed no large birds at the site, the existing 40-acre sprayfield or the surrounding citrus groves. He did observe small birds such as northern cardinals, towhees, and warblers, typical of citrus grove habitats. Cattle egrets might also be expected in the groves and the proposed sprayfield, particularly during mowing operations. Wading birds would only be attracted if water remained on the site for approximately one week or more to allow development of aquatic organisms as a food source. Birds present on the proposed sprayfield are very unlikely to fly up and collide with planes. The grass airstrip is used infrequently, with only 12 landings in the past year. For a number of years Mr. Wamer has observed bird behavior at the Tallahassee sewage treatment plant sprayfields near the Tallahassee Airport. The one-half mile distance between the runway and sprayfields in Tallahassee is nearly the same as the distance between the Petitioners' grass airstrip and the site. Planes landing at the Tallahassee airport are at an altitude of between 500 and 600 feet over the sprayfields, the same height as predicted over the site. Regardless of the size of planes, the birds, primarily cattle egrets, do not react, but continue feeding or resting. Stormwater and Surface Water Management Activities. On April 3, 1991, FCWC submitted an application with DER to modify and operate the existing stormwater and surface water management system on the sprayfield site (MSSW system). The Notice of Intent to Issue the MSSW Permit was published in the Florida Today newspaper on July 27, 1991. Minor activities are proposed to improve the existing system: (1) culverts at the ends of swales will be cleaned to restore full flow capacity; (2) obstructions and excess vegetation will be removed from the collection ditches to restore their original flow lines; and (3) any depressions in the swales will be filled and regraded to attain a minimum swale bottom elevation of 20.2 feet above mean sea level. As asserted by DER's expert in surface water management, the stormwater discharges will not be a combination of stormwater and domestic waste sufficient to trigger review of stormwater under DER rules as required by Rule 40C-42.061(3), F.A.C. Considering all proof adduced, particularly that stormwater will be treated to applicable standards in the grassed swales, water quality will not be violated, and the post- development peak discharge will not exceed the pre-development peak discharge from the site, FCWC provided reasonable assurances that the proposed MSSW system would not be harmful to the water resources in the area and would not be inconsistent with the overall objectives of the district. Summary of Findings and Permit Conditions FCWC has established that the sprayfield, as proposed, will meet the applicable regulatory requirements for the sprayfield and MSSW permits. Included in the specific conditions attached to the notice of intent to issue the sprayfield construction permit is the requirement that the site be operated to preclude saturated ground conditions or ponding. (FCWC Exhibit #3, paragraph 13, specific conditions). Witnesses for the applicant described certain proposals to assure this condition is met, and those proposals should be incorporated into the condition. Those proposals include the cessation of spraying during a rain event and the installation of devices to automatically turn off the sprinklers when rain occurs, the cessation of spraying whenever the groundwater level is within four inches of the bottom of the swales, and the installation of ground water gauges to determine when this level is reached. In order to minimize aerosol drift, the applicant proposes to establish wind gauges indicating the direction and speed of wind at the site. It was suggested that spraying would cease when the wind reaches 20 miles an hour, and sprinklers should be positioned to avoid spraying the downwind perimeter of the site when drift is likely to occur. This condition should also be incorporated in the permit. If the operational adjustments cannot be made automatically it will be necessary to require that the plant be staffed at all times that the spray system is turned on, notwithstanding the minimum six hours, five days a week required in Rule 17-602.370, F.A.C. and referenced in the intent to issue. Engineering computations in the application rely on the assumption that the vegetation onsite will be harvested (mowed and removed). Since spray irrigation treatment of wastewater depends on renovation or removal of effluent by the soil vegetation system, periodic mowing and removal of the vegetation should also be included as a permit condition.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered issuing permits number DC05-194008 and MS05- 194894, with the additional conditions addressed in Finding of Fact paragraphs 60 and 61, above. DONE and RECOMMENDED this 27th day of May, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by Petitioners, Groves and Shreve: Rejected as unsupported by competent evidence (as to the allegation of irresponsible plant operation). 2.-4. Rejected as irrelevant. 5.-7. Addressed in Conclusions of Law. Rejected as irrelevant. Adopted in paragraph 9. 10.-11. Rejected as contrary to the weight of evidence as to "irrigation efficiency". 12.-13. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence and mischaracterization of the witness' testimony. Rejected as unnecessary. Rejected as statement of testimony, not finding of fact, which testimony is outweighed by other evidence. 17.-18. Adopted in paragraph 3. 19. Adopted in paragraph 28. 20.-21. Adopted in paragraph 8. 22.-23. Adopted in substance in paragraph 22. Rejected as contrary to the weight of evidence. Average annual application rate of .54 inches/week yields 28 inches a year. Rejected as unnecessary. Addressed in Conclusions of Law. 26.-29. Rejected as contrary to the weight of evidence. 30.-31. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 11. Adopted in paragraph 19. Addressed in paragraph 36; adopted in substance. 38.-39. Rejected as unnecessary. 40. Adopted in paragraph 31. 41.-47. Rejected as unnecessary, or contrary to the weight of evidence as to "irrigation efficiency". 48.-49. Rejected as cumulative and unnecessary. 50. Adopted in paragraph 34. 51.-52. Rejected as contrary to the weight of evidence. The grass will be mowed and removed. The "U" value was based on the grasses, not the citrus. 53. Rejected as contrary to the evidence, as to "unknown density and type". 54.-57. Rejected as unnecessary. Rejected as contrary to the evidence. Adopted in paragraph 7. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Rejected as unnecessary. 63.-64. Rejected as contrary to the weight of evidence. 65. Rejected as confusing, as to the term "unsuitable conditions". 66.-69. Rejected as contrary to the evidence. 70. Rejected as confusing. 71.-72. Rejected as unnecessary. 73.-74. Rejected as a mischaracterization of the witnesses' testimony. 75.-82. Rejected as unnecessary. Rejected as contrary to the weight of evidence. 84.-85. Rejected as unnecessary. 86.-87. Rejected as contrary to the evidence. 88.-89. Rejected as unnecessary. 90.-94. Rejected as contrary to the evidence. 95.-97. Rejected as unnecessary. 98.-99. Addressed in Conclusions of Law. 100.-103. Rejected as contrary to the weight of evidence. 104.-109. Rejected as a mischaracterization of the testimony or misunderstanding of the term "irrigation efficiency". 110.-112. Rejected as cumulative and unnecessary. 113.-114. Addressed in Conclusions of Law. Rejected as unnecessary. Addressed in Conclusions of Law. 117.-118. Rejected as irrelevant. Rejected as contrary to the law and evidence. Rejected as unnecessary. Adopted in paragraph 16 by implication. Rejected as unnecessary and misunderstanding of the testimony. Addressed in Conclusions of Law. 124.-126. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Adopted by implication in paragraph 21. 129.-130. Rejected as unnecessary. 131. Rejected as contrary to the evidence. 132.-134. Rejected as unnecessary. 135.-138. Rejected as contrary to the evidence. 139.-141. Rejected as unnecessary. COPIES FURNISHED: Kenneth G. Oertel, Esquire M. Christopher Bryant, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. P. O. Box 6507 Tallahassee, FL 32314-6507 Harry A. Jones, Esquire EVANS, JONES & ABBOTT P.O. Box 2907 Titusville, FL 32781-2907 Kathleen Blizzard, Esquire Richard W. Moore, Esquire P.O. Box 6526 Tallahassee, FL 32314 Douglas MacLaughlin Asst. General Counsel Dept. of Environmental Regulation 2600 Blairstone Rd. Tallahassee, FL 32399 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD, or District) should issue a Modification to Environmental Resource Permit (ERP) No. 11- 02055-P, Application No. 060713-9, to G.L. Homes of Naples Associates II, Ltd. (G.L. Homes, or Applicant), which authorizes modifications to the surface water management system (SWMS) for a residential development known as Saturnia Falls (the Project).
Findings Of Fact PARTIES The District is a water management district with the power and duty to exercise regulatory jurisdiction over the administration and enforcement of ERP criteria, pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, and Sections 373.413, 373.414, and 373.416, Florida Statutes. G.L. Homes is an entity with the administrative, legal, and financial capabilities of undertaking the activity in accordance with the terms and conditions of the 2006 ERP, meeting the criteria in Rule 40E-4.301(1)(j). The Conservancy was duly incorporated in 1966 under the laws of the State of Florida as a not for-profit corporation and has it headquarters in Collier County, Florida. G.L. Homes contests the Conservancy's assertion of "associational standing." But there is no question as to the Conservancy's "citizen standing" under Section 403.412(6), Florida Statutes. The Conservancy has approximately 6,200 members, with approximately 4,200 residing in Collier County. Twenty-five current members in good standing who reside in Collier County were identified during the hearing. The Conservancy's purpose is to "protect and sustain the natural environment of southwest Florida through advocacy, education, research, land acquisition and other lawful means." Specific purposes relevant to the subject matter of this case include: "to acquire and protect sanctuaries, greenbelts, parks, and beaches"; "to assist governing bodies to remedy present pollution and to prevent future pollution of water, air, and our waterfronts and beaches"; and "to encourage and stimulate the interests of residents and visitors to the area, to increase their knowledge of, and to promote the preservation of the southwest Florida natural environment." The Conservancy also asserts standing under Section 403.412(5), Florida Statutes. In furtherance of its corporate purpose, the Conservancy owns approximately 300 acres of land for preservation in Collier County, including a 46-acre parcel located on the Cocohatchee River downstream from the proposed Saturnia Falls development. The Conservancy also conducts scientific research in the waters of the Wiggins Pass Estuary downstream from the proposed Saturnia Falls development, including water quality monitoring and research on seagrass restoration. Further impacts to the water quality in the Cocohatchee River would affect the value of the Conservancy's property for conservation and would affect its interests in research in the area. These interests of the Conservancy would be adversely affected if the 2006 ERP were issued improperly. The Conservancy's assertion of "associational standing" is based on the testimony of eight of its members who engage in various recreational activities, including boating, fishing, bird-watching, nature study, and observation of wildlife. Some visit Corkscrew Swamp Sanctuary and the Corkscrew Regional Ecosystem Watershed (CREW) to view endangered wood storks and other wildlife. Some also visit and recreate in downstream waters, such as the Wiggins Pass Estuary, for fishing, boating, or wildlife observation. These interests would be adversely affected if the 2006 ERP were issued improperly. PROJECT DESCRIPTION AND PERMITTING HISTORY The Project site is located one mile north of Immokalee Road, approximately 2 miles east of 1-75 and lies near the CREW lands in Collier County. The entire Project site consists of approximately 646 acres, of which 533.1 acres are wetlands. The Project has a permitting history dating back to 1997, when the previous owner, Robert Vocisano, applied to construct a development called Wildewood Lakes. The Wildewood Lakes application was denied in 1998, at least in part because wetland impacts were not reduced and eliminated to the extent practicable, and was mediated pursuant to Section 120.573, Florida Statutes. After three years of responding to additional requests for information, the application was submitted to the Governing Board for approval in May 2002. This ERP, referred to as “the 2002 ERP,” authorized the construction and operation of a SWMS to serve a residential and golf course development, discharging to the Cocohatchee Canal via a conveyance channel/Flow-way known as the Mirasol Flow-way (Flow-way). The Flow-way feature was to be built on lands owned by three different property owners, one of whom was the owner of the Terafina Project, and was intended to address flooding and storage criteria in the BOR and alleviate flooding problems in the region that resulted from previous drainage and development projects that altered the natural sheet-flow through the region to the Cocohatchee and Imperial Rivers, and on to the Gulf Coast. As reported in the Staff Report for the 2004 ERP, studies current at the time indicated that, during the initial part of the rainy season, the wetland systems in the vicinity of the proposed Flow- way carried the flow between the Corkscrew Swamp and the Cocohatchee Canal with the peak stages contained with the limits of the wetland areas. However, as the wet season progressed, the wetland vegetation impeded the conveyance of flow and resulted in elevated water stages that inundated properties adjacent to those wetlands, including portions of the eastern half of the Project. There were approximately 288 acres of direct impacts to wetlands under the 2002 ERP. There was a total of 291.20 acres of onsite preserve, including 259.97 acres of wetlands and 31.23 acres of uplands. Part of the Flow-way was to be located within the eastern third of the property (225.74 acres, including 217.80 acres of wetlands and 7.94 acres of uplands), which would be preserved after construction of part of the Flow- way in 23 of those acres. There also would be off-site mitigation in the form of a payment of $1,232,000 "specifically for the purchase of 154 acres . . . of land within CREW, a project within the District's Save Our Rivers Program." Of that total, $712,404 was to be deposited in an account for the land purchase, $437,206 in an account to pay for restoration work within the CREW project, and $82,390 in an escrow account for general operations and maintenance costs incurred by the District within the CREW project. On March 10, 2004, the Governing Board approved a modification to the 2002 ERP authorizing the construction and operation of the Project, at the time known as the Terafina PUD. This ERP is referred to as “the 2004 ERP.” The 2004 ERP removed the golf course and proposed a residential development within the same 646-acre parcel. It also discharged to the Cocohatchee Canal via the Flow-way. The 2004 ERP modified the Project to consist of: single-family residential areas; a recreation area; internal roadway; onsite wetland preserve areas within the development of approximately 73.99 acres; and 210 acres of wetland preserve east of the development, which included the Flow-way, and is referred to as the Eastern Preserve. The 2004 ERP proposed to impact approximately 280 acres of wetlands, slightly less than in the 2002 ERP. To mitigate for the impacts, the 2004 ERP authorized onsite mitigation consisting of the preservation and enhancement of 253.04 acres of wetlands, preservation of 31.27 acres of uplands, creation of 0.1 acres of wetlands, and offsite mitigation by a payment to the District for the purchase, restoration, and management of lands in CREW. Apparently by mistake, the amount of the CREW payment was reduced to $1,001,000, with $418,404 to go into the purchase account, $437,206 to go into the restoration account, and $82,390 to go into the escrow account for general operations and maintenance. In addition, the time for deposit of the funds was extended to June 30, 2004. The District included Special Condition No. 18 in the 2004 ERP, delaying any construction under the 2004 ERP until the Flow-way was completed. However, the United States Army Corps of Engineers (ACOE) refused to permit construction of the Flow-way. On July 13, 2006, G.L. Homes submitted an application to modify the 2004 ERP (the 2006 Application), which is the subject of this proceeding. (A letter modification was issued on October 5, 2006, authorizing installation of a 48" outfall pipe within the Logan Boulevard right-of-way to convey the discharge from the Project to the Cocohatchee Canal. This letter modification was not challenged by the Conservancy and is not at issue in this proceeding.) On November 9, 2006, SFWMD proposed issuance of the 2006 ERP authorizing the construction and operation of the residential development now known as Saturnia Falls (the 2006 ERP). The 2006 Staff Report proposes elimination of the Flow- way, and enhancement and preservation of the 23.5 acres that would have been located in the eastern third of the Project area, similar to the rest of the Eastern Preserve. The SWMS also was altered, and the Staff Report noted that the CREW payment was made in June 2004 in the amount of $1,260,000 "as funding for the off-site mitigation in CREW," which was said to have "provided a substantial amount of up-front mitigation in CREW." The Conservancy did not challenge the 2002 ERP or the 2004 ERP but did challenge the 2006 ERP. THE MODIFIED SURFACE WATER MANAGEMENT SYSTEM In addition to removal of the 23.5-acre segment of the Flow-way from the Eastern Preserve, the current proposal would modify the SWMS under the 2004 ERP by replacing the 80-foot weir at Lake 9, which was the sole final outfall under the 2004 ERP, with two operable Water Control Structures (WCS), located at the eastern (WCS-2) and western (WCS-1) boundaries of the Project, as the final outfall structures. The 80-foot weir in the 2004 ERP consisted of a rectangular notch in the 17.7 foot NGVD berm between Lake 9 and the Eastern Preserve, with a crest elevation of 13.8 foot NGVD and a 5 foot wide, .4 foot deep rectangular notch (that is, with an invert elevation of 13.4 foot NGVD) within the 80-foot weir, which served as a bleeder for water quality. The structure was fixed, and water was to pass freely through the bleeder and over the weir depending on the water levels on either side of the structure. In contrast, the structures proposed in the 2006 ERP are operable based on water levels in the Eastern Preserve. WCS- 1 is located in Lake 4 and discharges to the Cocohatchee Canal via a 48" reinforced concrete pipe located in the Logan Boulevard right-of-way. WCS-2 is located to the east of the development and discharges to the Eastern Preserve and then ultimately to the Cocohatchee Canal. As modified under the 2006 ERP, the SWMS continues to consist of eleven controlled sub-basins with a total area of 397.46 acres. The remainder of the proposed Project also is the same as under the 2004 ERP, including road alignments, type and number of houses, lots, lakes and grading information, and wetland impacts. It is the position of the Applicant and the District that the mitigation proposal also is identical; but Petitioner takes the position that proposed onsite mitigation will be adversely affected by the proposed modifications and that offsite mitigation no longer has the same benefit, so that mitigation no longer fully offsets the wetland impacts. The SWMS is set at the control elevation of 13.4 feet NGVD, which represents the wet season water table (WSWT) for the currently existing wetlands. The seasonal high water level for the wetlands was determined to be approximately 14.0 feet NGVD. When water levels in the Eastern Preserve are below 14.00 feet NGVD (typically in the dry season), the SWMS discharges to the Eastern Preserve through WCS-2, which is located in the perimeter berm to be constructed with sloping banks and a crest elevation of 17.7 feet NGVD between the Eastern Preserve and one of the western wetland preserves, called preserve P-5. WCS-2 consists of a 23-foot weir fitted with an operable bleeder at the control elevation of 13.40 feet NGVD, and a fixed discharge V-Notch weir with an invert elevation of 14.20 feet NGVD, and a crest elevation of 15.40 feet NGVD. This discharge will flow southerly through the Eastern Preserve to the receiving waterbody, the Cocohatchee Canal. WCS-1 will be closed during these periods. The maximum discharge rate under these conditions will be 15.28 cubic feet per second (cfs) to the Eastern Preserve. Based on the hydraulic modeling results, the Eastern Preserve experiences levels below 14 feet NGVD approximately 70% of the time on an annual basis. When water levels in the Eastern Preserve are above 14.00 feet NGVD (typically in the wet season), the SWMS will discharge predominately to the west via WCS-1 to the Cocohatchee Canal. When the water level in the Eastern Preserve reaches 14.00 ft NGVD, the operable bleeder on WCS-2 will close and the operable bleeder/discharge structure on WCS-1 will open. During the 25- year 3-day storm, the maximum discharge rate through WCS-1 is 13.50 cfs. During these conditions, discharge will also occur through the fixed 60-degree V-notch in WCS-2, with a maximum discharge of 2.10 cfs, ensuring bidirectional flow of water so long as the water level in the SWMS stays above 14.20 feet NGVD. The total discharge rate from both structures under this condition is 15.61 cfs. During the 25-year 3-day storm event, water levels in the Eastern Preserve fluctuate from 13.40 feet NGVD to 15.31 feet NGVD. When the water levels in the Eastern Preserve are higher than 14.20 feet NGVD, and the water level in the SWMS is lower than 14.20 feet NGVD, water from the Eastern Preserve will enter into the SWMS through the 60-degree V-Notch in WCS-2. The SWMS is designed to receive water from the Eastern Preserve to provide flood storage and hydrology to the onsite wetlands within the development. 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. In this case, the evidence must be viewed under Rule 40E-4.331(2)(a), pertaining to modification of permits, which requires the District to review permit modification applications “using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification.” The test in this case is not whether the District properly evaluated the 2004 ERP, but whether the areas proposed to be modified or affected by the modification meet the applicable conditions for issuance. Rule 40E-4.301(1) requires an applicant to provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a SWMS: Will not cause adverse water quantity impacts to receiving waters and adjacent lands; Will not cause adverse flooding to on- site or off-site property; Will not cause adverse impacts to existing surface water storage and conveyance capabilities; Will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters; Will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62- 4, 62-302, 62-520, 62-522, 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated; Will not cause adverse secondary impacts to the water resources; Will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, F.S.; Will not cause adverse impacts to a work of the District established pursuant to Section 373.086, F.S.; Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed; Will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and Will comply with any applicable special basin or geographic area criteria established in Chapter 40E-41, F.A.C. The parties stipulated that the Project either complies with Rules 40E-4.301(1)(g),(h),(j), and (k), and Sections 4.3.8, 7.5, and 9.0 of the BOR, or that those rules are not applicable. THE SURFACE WATER MANAGEMENT CRITERIA Water Quantity (Rule 40E-4.301(1)(a)) As indicated, the 2006 modifications eliminate the Flow-way and change the manner in which water flows in and out of the proposed SWMS. Otherwise, there are no changes to the engineered features of the SWMS. Rule 40E-4.301(1)(a) requires that G.L. Homes demonstrate that the Project will not cause adverse water quantity impacts to receiving waters and adjacent lands, and not exceed the capacity of the downstream receiving water bodies. Section 6.2 of the BOR requires that a project be designed so it is consistent with the downstream carrying capacity of the receiving waters. The receiving waterbody for this Project is the Cocohatchee Canal. The allowable discharge rate for the Cocohatchee Canal is 15.9 cfs. The Project’s calculated rate of discharge is 15.6 cfs, so the Project does not exceed the allowable discharge rate. The Project's discharge rate is lower in 2006 (15.6 cfs) than it was in the 2004 ERP (291 cfs). Petitioner argued that the significant difference in discharge rates between the 2006 and the 2004 ERPs violated the District’s water quantity criteria. But the discharge rate calculated in 2004 was associated with the Flow-way and entailed a different overall analysis for the entire area served by the Flow-way. G.L. Homes provided reasonable assurances that the discharge rate allowed for its Project would not be exceeded, as required in Section 6.2 of the BOR. G.L. Homes complied with Section 6.3 of the BOR which requires the 25-year, 3-day storm event to be used when computing the discharge rate for the Project. Section 6.8 of the BOR is entitled “Offsite Lands.” Compliance with this Section requires that a project allow the passage of drainage from offsite areas to downstream areas, which is necessary to demonstrate that off-site receiving waterbodies are not being adversely affected. G.L. Homes complied with Section 6.8 by conducting a hydrologic analysis, using the 25-year, 3-day storm event, which demonstrated that discharge would be directed to WCS-1 and WCS-2, allowing for the passage of drainage from offsite areas to the downstream areas. Section 6.10 of the BOR requires that the design of the Project conserve water and not over-drain wetlands. There is nothing about the modifications that violate Section 6.10. In this case, the control elevations have been set at 13.4 feet NGVD, which is the average WSWT. The WSWT was established using biological indicators to determine the average elevation in the Project’s wetlands during the wet season. Setting the control elevation at the WSWT does not violate Section 6.10. To the contrary, when water levels are at or above the control elevation, the design helps prevent the wetlands from being drawn down below 13.4 feet NGVD, and not over-drain them. The WSWT of 13.4 was permitted in the 2004 ERP. The structures also allow for the interchange of water from the Eastern Preserve into the preserve wetlands within the SWMS. This exchange of water helps preserve the Project’s environmental values. Setting the control elevation at 13.4 also reduces unnecessary runoff from the Project, retaining the water for recharge. In addition, the ability of the SWMS to accept flows from the Eastern Preserve also conserves freshwater by preventing that water from being discharged downstream. As indicated, when water levels in the Eastern Preserve are below the control elevation, no water will enter the SWMS from the Eastern Preserve. During those times, it is possible that wetlands within the SWMS will be drained into the deep lakes dug as part of the project. However, that would not be the result of 2006 modifications but would be inherent in the previously-approved SWMS. The 2006 modifications do not re-open the soundness of that previously-approved part of the design. Section 6.10 also requires that a project not lower water tables so that the existing rights of others would be adversely affected. Again, by setting the control elevations at the WSWT, the water table is not expected to be lowered so as to affect the existing rights of others. The Project also must demonstrate that the site’s groundwater recharge characteristics will be preserved through the design of the SWMS. G.L. Homes complied by setting the control elevations at the WSWT, allowing standing water in the wetland preserves to recharge the groundwater. Section 6.11 addresses Detention and Control Elevations which are intended to assist in complying with the provisions of Section 6.10. By designing WCS-1 and WCS-2 at control elevation 13.4, the Project maintains the detention component and the control (wetland protection) elevations under the previously-approved SWMS. The Required Design Information and Assumptions are contained in Section 8.0 of the BOR. This Section includes various assumptions and information regarding the design of the SWMS. By incorporating these assumptions into the Project, G.L. Homes complied with Section 8.0. Flooding (Rule 40E-4.301(1)(b)) This Rule requires G.L. Homes to demonstrate that the Project will not cause adverse flooding to onsite or offsite property. Section 6.4 requires that building floors be designed to be protected from a 100-year, 3-day storm event. G.L. Homes complied with this provision by providing construction plans demonstrating that the building floors are being built higher than the 100-year, 3-day storm event. Likewise, Section 6.5 pertains to providing flood protection for the Project’s roads and parking lots. G.L. Homes complied with this provision by exceeding the District’s 5-year design criteria, and instead designing the roads and parking lots using the 25-year, 3-day storm event. G.L. Homes was required to comply with the Historic Basin Storage provision in Section 6.7, which requires the Project to replace or otherwise mitigate the loss of historic basin storage provided by the site. In this case, the amount and extent of historic storage that is being displaced by the 2006 ERP is the same as that in the 2004 ERP. However, the replacement or mitigation for loss of historic basin storage is reduced due to elimination of the Flow-way. Instead of relying on the Flow-way to address this criterion, G.L. Homes relied on the “Saturnia Falls Slough Hydraulic Study” prepared by Taylor Engineering, the “Taylor Report” (RJ Ex. 32), which demonstrates the current flood levels in the Eastern Preserve and other adjacent properties and wetlands, and that the Project’s configuration would not affect the basin’s historic storage. Lastly, to demonstrate that the Project will not cause adverse flooding to offsite properties, G.L. Homes was required to comply with Section 6.9, Minimum Drainage. This provision requires that the SWMS recover, consistent with the environmental criteria in 6.10 of the BOR, within 12 days or less. The Taylor Report also demonstrated that the Project will recover from the design storm event in time to provide the required attenuation for the next storm event, while preserving environmental or wetland features. There may be times when the recovery may exceed 12 days, but the need to protect the hydrology of the wetlands required the control elevations to be set at 13.4 ft NGVD. Balanced against Section 6.10, G.L. Homes still complies with Section 6.9. Accordingly, G.L. Homes provided reasonable assurances demonstrating that the 2006 ERP will not cause adverse flooding to on-site or off-site property, satisfying Rule 40E- 4.301(1)(b). Storage and Conveyance (Rule 40E-4.301(1)(c)) Rule 40E-4.301(1)(c) requires that an applicant demonstrate that the proposed development will not adversely impact existing surface water storage and conveyance capabilities. In order to accomplish this demonstration, applicants are to consider the capability of the adjacent properties to both store and convey stormwater runoff from their developments. Section 6.6 of the BOR, entitled Floodplain Encroachment, specifies the parameters by prohibiting a net encroachment into the floodplain, between the average WSWT and the 100-year event, which will adversely affect the existing rights of others. G.L. Homes addressed this criterion through the analysis submitted and contained in the Taylor Report. The Taylor Report used the hydrologic model, HEC-HMS, and hydraulic model, HEC-RAS, to provide a simulation of flood stages propagating through the Eastern Preserve and the adjacent wetland system. This analysis assessed the existing flood stages within the offsite areas, starting at the Cocohatchee Canal and ending approximately 2-3 miles northeast of the eastern boundary of the Project. The analysis captured the expected flood levels during both the 25-year, 3-day and the 100-year, 3-day storm events in the area's current condition, and then compared the analysis of the two storm events considering the Project in its development condition. The analysis relied on the Project’s proposal to remove the current melaleuca infestation from the Eastern Preserve as part of the Project’s post-development condition. The Taylor Report concluded that the removal of such exotics would remove a flow impediment and allow the water to flow through the Eastern Preserve at a higher rate, and therefore at lower flood stages. The Taylor Report made these conclusions while accounting for the development as well as the mitigation-required plantings. The Taylor Report, along with Mr. Hull’s testimony, demonstrated that even with the mitigation reaching full maturity, the removal of melaleuca results in lower flood stages than the study area is currently experiencing. The evidence was that the model used by Taylor Engineering, the HEC-RAS model, is an appropriate model to determine flood stages and to calculate the floodplain conveyance. Furthermore, although Petitioner attacked the choice of inputs, mainly the “Manning’s n coefficients” used to determine the roughness or the friction provided by current and post-development vegetation, the balance of the evidence supports the coefficients contained in the Taylor Report as reasonable and within the ranges of the cited data and models. Petitioner’s expert, Dr. Van Lent, who conducted no analysis of his own, admitted that HEC-RAS was an accepted tool to use for floodplain conveyance and that the other models he suggested are either inappropriate or rarely used by ERP applicants. The Applicant provided reasonable assurances demonstrating that the 2006 ERP will not cause adverse impacts to existing surface water storage and conveyance capabilities, satisfying Rule 40E-4.301(1)(c). However, that is not to say that the 2006 ERP replaces the storage and conveyance capabilities that would have been provided under the 2004 ERP with the proposed Flow-way, which also required removal of melaleuca and required the same mitigation plantings except within the Flow-way itself. To the contrary, storage and conveyance capability under the 2004 ERP clearly would have been greater. Wetland Impacts (Rule 40E-4.301(1)(d)) This Rule provision, while typically associated with the wetland ERP criteria review, also applies to the SWMS through Section 6.12 of the BOR, which requires that a lake system be designed so that an adverse gradient is not created between the lakes and wetland areas. G.L. Homes complied with this criterion by setting the control elevation at 13.4 feet NGVD, the WSWT, for the lake system, the SWMS wetland preserves and the Eastern Preserve, ensuring no gradient (or difference in elevation) between the wetland elevation and the lake elevation. Petitioner argued that additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to fully determine the impacts to the wetlands. Contrary testimony indicated that setting the control elevations within the development area at the WSWT protects the onsite wetlands and ensures that those wetlands will function as expected. Mr. Waterhouse testified that additional analysis, such as groundwater or evapotranspiration, is not necessary because the Project was designed so that the control elevation that affects the lake levels and the wetlands are the same. The testimony was that, since the control elevation was set using the WSWT, the timing and levels within the wetlands will not be affected by the revised SWMS, and that no additional modeling, as recommended by Dr. Van Lent, is necessary because the SWMS complies with Section 6.12. As indicated, it is questionable on this record whether wetlands within the SWMS will be drained during dry conditions by adjacent deep lakes. No such analysis was presented in evidence in this case. However, such an impact on the wetlands within the SWMS would not be the result of 2006 modifications but would be inherent in the previously-approved SWMS. The 2006 modifications do not re-open the soundness of that previously-approved part of the design. As for the 2006 modifications, the evidence was persuasive that no additional analysis regarding the timing and levels of inundation in the wetland preserves is necessary to determine that the elimination of the 80-foot weir and its replacement with WCS-1 and WCS-2 will not impact the wetlands. Water Quality (Rule 40E-4.301(1)(e)) Rule 40E-4.301(1)(e) requires an applicant to provide reasonable assurances that the Project will not adversely affect the quality of receiving waters such that water quality standards will be violated. Section 5.2 describes the District’s standard water quality criteria. This provision, requiring a minimum of one inch detention of stormwater, is referred to as a “presumptive criterion” because it is presumed that if an applicant provides the required one inch of detention, Class III water quality standards and rule requirements will be met. In this case, G.L. Homes provides one inch of detention in its lake system in the exact manner it did in the 2004 ERP. A difference from the 2004 to the 2006 ERP is the classification of the Cocohatchee Canal, the Project’s receiving waterbody, as impaired for iron and dissolved oxygen (DO). Therefore, G.L. Homes was also required to comply with Section 4.2.4.5 of the BOR to demonstrate that it is not contributing to the impairment. See also Fla. Admin. Code R. 40E-4.301(2). Section 4.2.4.5, entitled "Where Ambient Water Quality Does Not Meet State Water Quality Standards," states as follows: If the site of the proposed activity currently does not meet state water quality standards, the applicant must demonstrate compliance with the water quality standards by meeting the provisions in 4.2.4.1, 4.2.4.2, and 4.2.4.3, as applicable, and for the parameters which do not meet water quality standards, the applicant must demonstrate that the proposed activity will not contribute to the existing violation. If the proposed activity will contribute to the existing violation, mitigation may be proposed as described in subsection 4.3.1.4. To comply, G.L. Homes must show that neither short- term (4.2.4.1) nor long-term (4.2.4.2) water quality impacts will occur. G.L. Homes complied with the short-term requirements by submitting the Construction Pollution Prevention Plan (CPPP), detailing how water quality will be protected during the construction process. In addition to the inch of treatment, the long-term water quality requirement was addressed, in part, by the Urban Stormwater Management Plan (USMP), which details various source controls or best management practices (BMPs) to be implemented once the Project is built and operating. These BMPs help keep pollutants out of the lake system. In addition to the BMPs, the USMP requires G.L. Homes to institute a water quality monitoring plan and submit results to the District for review after the Project is developed. Dr. Harper concurred with Petitioner that the USMP as proposed (in R.J. 28, § 6.0) was deficient in certain respects and recommended that it be clarified or supplemented to specify testing for oxygen, iron, nitrogen, phosphorus, hardness, and a few heavy metals, namely copper, lead, and zinc. Dr. Harper also concurred and recommended that that samples should be collected at both WCS-1 or WCS-2, not just at one of them, depending on which structure is discharging water at the time of sampling. (Dr. Harper confirmed the propriety of testing three times per year, which is a common frequency for monitoring in situations like this.) Mr. Waterhouse agreed with Dr. Harper's additions/clarifications and testified that the USMP, as supplemented and clarified, would comply with District’s criteria. G.L. Homes accepted Dr. Harper's additions/clarifications to the USMP. Another component of Section 4.2.4.5 requires additional assurance for parameters that do not meet water quality standards. The District prepared the “Terrie Bates Water Quality Memo dated June 11, 2004,” referred to as “the Bates Memo,” to provide guidance on the implementation of Section 4.2.4.5 for projects which discharge into an impaired waterbody. The Bates Memo suggests that an additional 50 percent of treatment, among other BMPs, be incorporated into a SWMS. G.L. Homes complied with the Bates Memo because runoff from the lakes, after meeting the one inch detention treatment requirement, spills into the wetland preserves within the SWMS for an additional 50 percent of treatment. In terms of operation of the SWMS, this is no different from the 2004 ERP, but the 2006 ERP simply calculates and takes credit for the additional treatment that was also provided by the onsite wetlands in the 2004 ERP. It is uncontested that the wetland preserves within the development are not impaired and are only required to meet Class III water quality standards. When the stormwater spills into the SWMS wetland preserves, it is presumed to meet Class III water quality standards due to the one inch of detention treatment. Accordingly, the SWMS wetland preserves can be used to provide the additional 50 percent of treatment. The Bates Memo also lists seven BMPs as potential options to consider, in addition to the extra 50 percent treatment volume. G.L. Homes is implementing 6 of the 7 items as follows: (1) the CPPP, which is a stormwater pollution prevention plan; (2) an operation plan or long-term plan addressing routine maintenance is included in the USMP; (3) planting littoral zones; (4) some utilization of onsite wetlands for additional treatment downstream of the SWMS by discharging into the Eastern Preserve wetland system through WCS-2 at times; (5) a site-specific water quality evaluation for the Project’s pre- and post-development conditions is addressed by the Harper Report (RJ Ex. 25); and (6) a Water Quality Monitoring Plan, which is required under the USMP. Petitioner erroneously argued that the Bates Memo does not allow the 50 percent treatment to occur in the preserve wetlands within the development. The argument stems from the phrase “in addition to the extra 50% treatment volume” at the bottom of page 3 of the memo, and bullet No. 5 on page 4, which recommends “treatment in wetlands downstream of the SWMS.” Absent any analysis of her own or any experience in the application of the Bates Memo, Ms. Hecker contended that the Bates Memo precludes the use of onsite wetlands. The argument is contradictory and confusing because Hecker admits that the preserve wetlands within the development are not downstream of the SWMS, and acknowledges that the Eastern Preserve is the wetland downstream of the SWMS. Ms. Hecker, along with Mr. Boler, ultimately admitted that criteria exist allowing the use of wetlands as part of the SWMS. Mr. Waterhouse, who has vastly more experience with the District’s water quality criteria than Ms. Hecker, and participated in the drafting of the Bates Memo, refuted Ms. Hecker’s position about the intent of the Bates Memo, citing to Section 5.3.1 of the BOR as additional support for the use of onsite wetlands for water quality treatment. In addition to these water quality submittals, G.L. Homes also provided a water quality analysis specific to the Project prepared by Dr. Harvey Harper. The analysis, entitled “Evaluation of Water Quality Issues Related to the Saturnia Falls Project” (RJ Ex. 25), referred to as the “Harper Report,” analyzed the Project’s pre- and post-development pollutant loads to help demonstrate that the Project would not contribute to the impairment of the Cocohatchee Canal. The Harper Report estimated the removal efficiency of the SWMS lakes to determine how much pollutant removal would be achieved by the lakes on the Project. Dr. Harper relied solely on the lakes without accounting for any of the additional treatment expected to occur in the wetlands or from the source control BMPs contained in the USMP, which means his report errs on the conservative side in those respects. Although the Canal is impaired for dissolved oxygen (DO), it is uncontested that a nutrient analysis is the appropriate method to assess DO conditions. The Harper Report, as summarized in the table below, concluded that the Project would result in lower post-development loading rates than the pre-development loading rates for nutrients. Nitrogen (N) Pre-Development Total N Load 390.6 kg Post-Development Removal (Dry4) Total N Load 204.99 kg Post-Development Removal (Wet5) Total N Load 194.69 kg Phosphorus (P) Pre-development Total P Load 15.12 kg Post-Development Removal (Dry) Total P Load 5.29 kg Post-Development Removal (Wet) Total P Load 4.49 kg The Harper Report compared the Post-Development Total Basin Loading numbers for P (136.43 kg) and for N (922.57 kg), on an average annual basis, coming from the residential areas (roads and lots) to the Post-Development Removal Loads for P [5.29 kg (dry) and 4.49 kg (wet)] and for N [204.99 kg (dry) and 194.69 kg (wet)] discharging from the lakes after treatment. The calculations demonstrated that approximately 77 percent of N would be removed by the lakes in the dry season conditions and approximately 78 percent would be removed in the wet season conditions. Approximately 95 percent of P would be removed by the lakes in both the dry and wet season conditions. Additional removal and treatment above these percentages is expected due to a number of other source control measures not accounted for in the Harper Report. The Harper Report also concluded that iron discharges from the SWMS would be extremely low and substantially less than the Class III standard of 1 mg/l. Petitioner presented no evidence to counter this conclusion. Petitioner questioned the validity of Harper Report’s use of wetlands as part of the loading calculations, and attacked his underlying methodology. Petitioner's witnesses called it "bad science" to attribute pollutant loading to wetlands because wetlands remove nutrients from the water column and because attributing nutrient loading to wetlands would make it easier to obtain a permit to destroy wetlands. However, none of Petitioner's witnesses were able to credibly defend the position that wetlands cannot contribute to the loading calculations and at times conceded to this fact. Generally, wetlands can in fact contribute some nutrients that pass through without being taken up by wetland vegetation, either because the water is moving through the wetlands too fast or because the nutrient load in the wetland overtaxes the wetland's ability to take up nutrients. That does not necessarily mean that the nutrient load attributable to a wetland will be greater than the load attributable to other post-development land uses. Indeed, the only post-development land use characterized by Dr. Harper as having a lower pollutant load than a wetland was low- intensity commercial, and that was only for total nitrogen. (Dr. Harper's use of data from some distance away in Corkscrew Swamp as the basis for characterizing the pollutant loadings for the onsite wetlands, instead of data from a closer monitoring station in the Cocohatchee Canal weir, was justified; his use of that data instead of collecting data onsite was a valid criticism, but there was not enough evidence in support of that criticism to undermine the additional assurance derived from Dr. Harper's work.) As for the argument that the "Harper method" makes it easier to obtain a permit to destroy wetlands, there are many regulatory criteria other than just water quality that are supposed to be considered before a permit is issued to impact wetlands. Another component of Petitioner’s attack on the Project’s water quality compliance included vague references to an 80 percent removal efficiency. In actuality, the 80 percent removal efficiency is not adopted or incorporated into any District rule criteria. In any event, the Harper Report and other evidence give reasonable assurance that, along with other source controls, the proposed SWMS probably will remove 80 percent of pollutants on an average annual basis. Lastly, the District clarified why Section 4.2.8 of the BOR, regarding cumulative impacts for water quality, was not applicable in this case. Since no contribution or impacts to water quality are expected, a cumulative impacts analysis is not necessary to assess the extent of the impacts. The combination of all these water quality measures, when taken together, give reasonable assurance that the 2006 ERP will not adversely affect the quality of receiving waters such that State water quality standards will be violated, and that Rule 40E-4.301(1)(e) will be satisfied. Engineering Principles (Rule 40E-4.301(1)(i)) Rule 40E-4.301(1)(i) requires an applicant to provide reasonable assurances that the SWMS will be capable, based on generally-accepted engineering and scientific principles, of being performed and of functioning as proposed. Section 7.0 of the BOR specifies implementation of the Rule. Since WCS-1 and WCS-2 are proposed as operable structures, the District is requiring that G.L. Homes enter into an operable Control Structure Agreement with the Big Cypress Basin Board. The agreement provides for the Big Cypress Basin Board to operate and maintain the two operable structures, instead of the Saturnia Falls Homeowners Association. As Mr. Waterhouse explained, this is a reasonable and logical requirement. WETLAND ERP CRITERIA As with the SWMS criteria, the wetland criteria review of this modification compares the Project to 2004 ERP. Functions To Fish & Wildlife And Listed Species (Subsection 40E- 4.301(1)(d)) Rule 40E-4.301(1)(d) requires an applicant to provide reasonable assurances to demonstrate that the construction, alteration, operation, maintenance, removal, or abandonment of a SWMS will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Section 4.2.2 of the BOR provides further specificity to ensure that a project will not impact the abundance and diversity of fish, wildlife and listed species. The 2006 ERP makes no changes or modification to the 280 acres of wetland impacts allowed in the 2004 ERP. Since the impacts remain the same, the 2006 ERP does not modify or affect the values the wetlands provide to either the abundance or diversity of fish and wildlife, compared to the 2004 ERP. Review of this criterion was determined in the 2004 ERP and should not be re- opened. Section 4.2.2.3 of the BOR addresses the functional assessment of the values provided by the Project’s wetlands. The wetland values were not reassessed in the 2006 ERP because the wetland impacts remain the same as in the 2004 ERP. The evidence was that the current value of the wetlands remains low due to heavy melaleuca infestation, with 75 percent coverage in most locations. While Petitioner may disagree with how the current wetlands were evaluated, nothing in this modification request requires a reassessment of their value. Accordingly, the value of the wetlands currently onsite has not changed, and this criteria should not be re-opened. Section 4.2.2.4 of the BOR requires that a regulated activity not adversely impact the hydroperiod of wetlands or other surface waters. Specifically, the criterion states as follows: [An] applicant must provide reasonable assurances that the regulated activity will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions as follows: Whenever portions of a system, such as constructed basins, structures, stormwater ponds, canals, and ditches, are reasonably expected to have the effect of reducing the depth, duration or frequency of inundation or saturation in a wetland or other surface water, the applicant must perform an analysis of the drawdown in water levels or diversion of water flows resulting from such activities and provide reasonable assurance that these drawdowns or diversions will not adversely impact the functions that wetlands and other surface waters provide to fish and wildlife and listed species. Increasing the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters or by impounding water in wetlands or other surface waters must also be addressed to prevent adverse effects to functions that wetlands and other surface waters provide to fish and wildlife and listed species. Different types of wetlands respond differently to increased depth, duration, or frequency of inundation. Therefore, the applicant must provide reasonable assurance that activities that have the potential to increase discharge or water levels will not adversely affect the functioning of the specific wetland or other surface water subject to the increased discharge or water level. Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to: monitor the wetland or other surface waters to demonstrate that such alteration has not resulted in adverse impacts; or calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules, and reporting requirements shall be specified in permit conditions. Subsection (a) applies if the Project was expected to reduce the depth, duration, or frequency of inundation or saturation in any of the Project’s wetlands. Subsection (b) applies if the Project is expected to increase the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters. Subsection (c) requires monitoring of the wetlands to determine the effects of the hydrological changes. Persuasive engineering and biological testimony demonstrated that no change (neither a reduction nor an increase) in the hydrology on the preserved wetlands or the Eastern Preserve will occur from what was permitted in the 2004 ERP. By analyzing the various biological indicators onsite, control elevations within the SWMS and the wetlands (both the Eastern Preserve and onsite preserve wetlands) were set at 13.4 feet NGVD, which is the WSWT. This matched the control elevation under the 2004 ERP. Ms. Bain and Mr. Passarella both testified that the hydroperiods in the wetlands would remain the same as in the 2004 ERP during normal conditions, the most important indicator of wetland success, and that the wetlands would be unaffected by the modifications. The WSWT is a common indicator of average wet season water levels in a wetland, which generally is the best indicator of maintaining appropriate hydrology and thereby maintaining the expected level of wetland function. However, as indicated, the deep lakes next to preserved wetlands within the SWMS could draw down those wetlands during dry conditions; but the potential lake effect was present in the 2004 ERP. Both Dr. Van Lent and Jason Lauritsen conceded that, with the elimination of the Flow-way, the hydrology in the Eastern Preserve would be better in the 2006 ERP than in the 2004 ERP. But, as indicated, there was no detailed analysis of wetland impacts from the 2006 modifications because G.L. Homes and the District took the position that no detailed analysis was necessary since the control elevation remained unchanged. Petitioner attempts to cast doubt as to the level of data reviewed by the District to conclude that no changes will occur in the hydrology of the wetlands. But the additional modeling recommended by Petitioner is unnecessary and unwarranted in the face of the biological indicators collected from the Project site over several years. These biological indicators are reliable and customary information to use when ensuring compliance with Section 4.2.2.4. They also resulted in the same control elevation that was set in the 2004 ERP. Petitioner never disputed the credibility of the biological indicators, nor did they present any contrary evidence (either a model or otherwise) that purported to show the wetlands would not function as permitted in the 2004 ERP based on these indicators. Instead, they simply asserted that additional analysis should be done. Although not precipitated by this criterion, G.L. Homes will conduct monitoring of the wetlands by implementing the Monitoring Plan as additional reasonable assurances that the wetlands will not be affected. Secondary Impacts To Water Resources (Subsection 40E- 4.301(1)(f)) Rule 40E-4.301(1)(f) and Section 4.2.7 of the BOR require a demonstration that the proposed activities will not cause adverse secondary impacts to the water resources. No secondary impact analysis was done because the site plan and wetland impacts remained unchanged from the 2004 ERP. Additional Wetland Provisions (Subsection 40E-4.301(3) and 40E- 4.302 Subsection 40E-4.301(3) addresses the remaining wetland criteria in the BOR, including mitigation and elimination or reduction of impacts. Rule 40E-4.302(1)(b) addresses the cumulative impacts analysis contained in Section 4.2.8 of the BOR. No assessment of elimination and reduction of wetland impacts was done because the wetland impacts remain unchanged from the 2004 ERP. The 2006 modifications do not warrant another elimination and reduction analysis. No cumulative impacts analysis is necessary because, as in the 2004 ERP, all proposed mitigation for wetland impacts are within the same drainage basin (West Collier) as the impacts. Logically, if the mitigation proposed for the 2006 modifications fully offsets the wetland impacts, there will be no impacts to cumulate with others impacts of other development activities. On the other hand, if the mitigation does not fully offset the impacts, the application will be denied for that reason, without the need for a cumulative impacts analysis. Section 4.3 of the BOR specifies criteria for mitigation proposed as part of an ERP application. Both G.L. Homes and the District took the position that, similar to the wetland impacts, the proposal for both onsite and offsite mitigation did not change from the 2004 ERP, and that no detailed analysis of the mitigation proposal, or comparison to wetland impacts, was required. Indeed, the onsite mitigation proposal--which includes preservation, restoration of wetlands by removing melaleuca, and the creation of four shallow depressional areas for wood stork habitat--remains unchanged from the 2004 ERP, including the Grading and Planting Plan, the Monitoring Plan, and Mitigation, Monitoring and Maintenance Plan. It was proven that the Flow- way footprint never was considered to be either a wetland impact or a part of the mitigation proposal, and that its removal from the Eastern Preserve does not decrease the amount or the value of the mitigation. (Actually, its removal probably increases the value of the mitigation, but the amount of any such increase was not analyzed or quantified.) It also was proven that the onsite wetlands will not be adversely affected as a result of the 2006 modifications so as to decrease their mitigation value, as Petitioner contended. Petitioner also raised the concern that the wetland mitigation within the SWMS would not function as permitted in the 2004 ERP due to the storage of the additional 50 percent within those wetlands, thereby affecting the mitigation assessment. However, as already indicated, when the water reaches those internal wetland preserves, it will have been treated to Class III water quality standards. In addition, operationally, the water also would have been stored in those wetlands under the 2004 ERP; the only difference is that the 2006 modifications calculate and claim credit for the storage, which was not necessary or done for the 2004 ERP. In addition to the onsite mitigation, G.L. Homes previously had been permitted to provide offsite mitigation in the form of a $1.26 million cash payment to the District. The payment was for the purchase, restoration, and enhancement of 154 acres of lands within the boundaries of the District’s environmental restoration project called CREW. Payment of cash for use by the District is addressed in Section 4.3.1.8 of the BOR. These types of offsite mitigation opportunities are referred to as a regional offsite mitigation areas or “ROMAs.” Unlike most mitigation banks, ROMAs, such as CREW, involve a land acquisition component and are owned and operated by the District. G.L. Homes and the District take the position that, under Section 4.3.1.8 of the BOR, and the previous 2004 ERP, G.L. Homes’ responsibilities ended when it paid the cash donation to the District. They take the position that the mitigation is unaffected by the modification, and that re- opening of the offsite mitigation requirement is unwarranted. However, while the Staff Report characterizes the $1.26 million payment as "a substantial amount of up-front mitigation for the proposed wetland impacts," no land in CREW has been purchased as of yet. In addition, the evidence was that, as a result of the passage of time and market forces, it unlikely that 154 acres of land within CREW can be purchased, enhanced, and maintained with the funds paid to the District under the 2004 ERP. Indeed, for a number of reasons, including the lack of willing sellers to participate in the CREW ROMA, in 2004 the District stopped accepting payment of funds to purchase land in CREW as an acceptable form of mitigation for wetland impacts. As a result, it no longer can be said that the proposed mitigation package, which includes and relies on the use of the funds to purchase, enhance, and maintain 154 acres in CREW, fully offsets the proposed wetland impacts. (In addition, under Rule 40E- 4.331(2)(a), any new mitigation proposal would have to analyzed using the Uniform Mitigation Assessment Methodology, Rule 62- 345.100.) Finally, if the offsite mitigation outside the drainage basin is used, a cumulative impact analysis will be necessary. Public Interest Test (Rule 40E-4.302(1) In addition to complying with Rule 40E-4.301, since the Project is located in, on, or over wetlands, G.L. Homes must also address the criteria contained in the Public Interest Test, Rule 40E-4.302 and Section 4.2.3 of the BOR, by demonstrating that the Project is not contrary to the public interest. (Since the Project is not within an OFW or does not significantly degrade an OFW, the higher standard of “clearly in the public interest” does not apply.) The District considers and balances the following seven factors in determining compliance with the test: Whether the regulated activity will adversely affect the public health, safety, or welfare or the property of others (40E-4.302(1)(a)1.); 93. G.L. Homes provided reasonable assurances that the Project will not cause any onsite or offsite flooding, nor will the Project cause any adverse impacts to adjacent lands because the SWMS is designed in accordance with District criteria and the post-development peak rate of discharge does not exceed the allowable discharge rate. The Project is considered neutral as to this factor. However, it appears from the evidence that the 2002 ERP and the 2004 ERP viewed those proposals as positive as to this factor due to the inclusion of the Flow-way in an effort to alleviate regional flooding. Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats (40E-4.302(1)(a)2.); 94. As indicated, the Project proposes onsite mitigation which has not changed from the 2004 ERP, but passage of time and market conditions have changed the offsite mitigation proposal. As a result, it no longer can be said based on the evidence in this case that the overall mitigation proposal offsets potential impacts to fish and wildlife, including wood stork habitat, even though the mitigation plan for the Eastern Preserve would improve wood stork habitat from its current melaleuca-infested condition. For these reasons, the Project cannot be considered positive as to this factor. Whether the regulated activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (40E-4.302(1)(a)3.); 95. The Project will not adversely affect navigation. In addition, no evidence was introduced to suggest that the Project’s construction would result in harmful erosion or shoaling. The balance of the testimony pertaining to the flow of water in the Project indicated that it will not be adversely affected. Although there will be reduced discharge to the Eastern Preserve as a result of the 2006 modifications, the Project is considered neutral as to this factor. In contrast, it appears from the evidence that the 2002 ERP and the 2004 ERP would have viewed those proposals as positive as to this factor due to the inclusion of the Flow-way in an effort to alleviate regional flooding. Whether the regulated activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity (40E-4.302(1)(a)4.); 96. The Project does not provide any fishing, recreational values, or marine productivity. Therefore, the Project is neutral as to this factor. Whether the regulated activity will be of a temporary or permanent nature (40E-4.302(1)(a)5.); 97. The Project is permanent in nature and is considered neutral as to this factor because reasonable assurances have not been given that mitigation will fully offset the permanent wetland impacts. Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S. (40E- 4.302(1)(a)6.); 98. There are no significant archeological or historical resources that will be adversely affected by the Project. In addition, no new information was received by the District indicating that historical resources would be impacted. Therefore, the Project is considered neutral as to this factor. The current condition and relative value of functions being performed by areas affected by the proposed regulated activity (40E-4.302(1)(a)7.); As found, reasonable assurance has not been given that the current condition and relative value of functions being performed by the areas affected by the Project will be fully offset by mitigation. Therefore, the Project should be considered negative as to this factor. On balance, the Project, overall, is negative when measured against these criteria. Accordingly, it must be determined that reasonable assurance has not been given that the Project, as a whole, is not contrary to the public interest.
Conclusions DOAH has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes. Under Section 403.412(6), Florida Statutes: Any Florida corporation not for profit which has at least 25 current members residing within the county where the activity is proposed, and which was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or s. 120.57, provided that the Florida corporation not for profit was formed at least 1 year prior to the date of the filing of the application for a permit, license, or authorization that is the subject of the notice of proposed agency action. It is concluded that use of virtually the identical statutory language is not mandatory for standing under this statute and that the Conservancy meets the requirements for standing under this statute. Party status under Sections 120.569 and 120.57, Florida Statutes, also can be based on proof that "substantial interests will be affected by proposed agency action." § 120.52(12)(b), Fla. Stat. This requires proof of "an injury in fact which is of sufficient immediacy and is of the type and nature intended to be protected" by the substantive law. § 403.412(5), Fla. Stat. See also Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478 (Fla. 2d DCA 1981). An organization like the Conservancy may allege and prove either that its own substantial interests or those of a substantial number of its members will be affected. See Florida Home Builders Ass'n v. Dept. of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982); Farmworker Rights Organization, Inc. v. Dept. of Health, etc., 417 So. 2d 753 (Fla. 1st DCA 1982). In addition, Section 403.412(5), Florida Statutes, provides: No demonstration of special injury different in kind from the general public at large is required. A sufficient demonstration of a substantial interest may be made by a petitioner who establishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner's use or enjoyment of air, water, or natural resources protected by this chapter. The Conservancy made a sufficient demonstration under this statute that the proposed 2006 ERP will affect its use or enjoyment of water and natural resources protected by Chapter 403. As a result, the Conservancy also proved standing under Sections 120.569 and 120.57, Florida Statutes. Because the Conservancy has "citizen standing" under Section 403.412(6), Florida Statutes, as well as standing under Sections 120.569 and 120.57, Florida Statutes, it is not necessary to decide G.L. Homes' challenge to the Conservancy's "associational standing." It also is unnecessary and premature to determine whether any party would be entitled under Section 120.68(1), Florida Statutes, to judicial review of the final order entered in this case as "a party who is adversely affected." It is believed that such a determination, if it becomes necessary, can be made upon the evidence in the record. BURDENS OF PROOF AND PERSUASION This is a de novo proceeding designed to formulate final agency action. See Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 786-787 (Fla. 1st DCA 1981); and § 120.57(1)(k), Fla. Stat. As an ERP applicant, G.L. Homes has the ultimate burden of proof and burden of persuasion. See J.W.C. Company, Inc., 396 So. 2d at 786-789. In light of the evidence presented in this case, the option suggested in the J.W.C. case to shift the burden of presenting evidence was not useful. ERP CRITERIA The permitting criteria for G.L. Homes' proposed Project are found in Parts I and IV of Chapter 373, Florida Statutes, Florida Administrative Code Chapter 62-345, Florida Administrative Code Rules 40E-4.301 and 40E-4.302, and the BOR, which is adopted by reference in Rule 40E-4.091(1)(a). For its proposed Project to be permitted, G.L. Homes must give reasonable assurance of compliance with those criteria. Issuance of an ERP must be based solely on compliance with applicable permit criteria. See Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. 3d DCA 1983). Reasonable assurance contemplates a substantial likelihood that the project will be successfully implemented. See Metropolitan Dade County v. Coscan Florida Inc., 609 So. 2d 644 (Fla. 3d DCA 1992). Absolute guarantees are not necessary, and a permit applicant is not required to eliminate all contrary possibilities or address impacts that are only theoretical and cannot be measured in real life. See City of Sunrise v. Indian Trace Community Development District, et al., DOAH Case No. 91- 6036, 1991 Fla. ENV LEXIS 6997, 92 ER FALR 21 (DOAH 1991, SFWMD 1992); Manasota-88, Inc. v. Agrico Chemical Co. and Department of Environmental Regulation, DOAH Case No. 87-2433, 1990 Fla. ENV LEXIS 38 (DOAH Jan. 5, 1990; DER Feb. 19, 1990). The test in this case is not whether the District properly evaluated the 2004 ERP, but whether the areas proposed to be modified or affected by the modification met the applicable conditions for issuance. When a permittee seeks to modify an existing permit, the District’s review includes only that portion of the existing permit that is proposed to be modified or is affected by the modification. Fla. Admin. Code R. 40E-4.331(2). See also Friends of the Everglades, Inc., v. Dep't. of Envt'l. Reg., 496 So. 2d 181, 183 (Fla. 1st DCA 1986); Behrens v. Boran, ORDER NO. SWF 02-052, ER FALR 257 (SWFWMD Aug. 27, 2002), DOAH Case No. 02-0282, 2002 Fla. ENV LEXIS 192 (DOAH July 29, 2002); Kunnen v. Southwest Fla. Water Mgmt. Dist., ORDER NO.: SWF 02-003, DOAH Case No. 01-2571, 2002 Fla. ENV LEXIS 4 (DOAH Dec. 17, 2001; SWFWMD Jan. 29, 2002). The "reasonable assurance" requirement applies to the activities for which permitting is presently sought and, except to the extent affected by the proposed modification, does not burden the applicant with "providing 'reasonable assurances' anew with respect to the original permit." Friends of the Everglades, supra at 183. Accordingly, Petitioner’s arguments that certain criteria must be revisited because they were not properly addressed in previous permits is irrelevant to this proceeding; but previously-decided criteria must be reviewed again to the extent that proposed modifications affect those criteria. CONSIDERATION OF THE ERP CRITERIA In order to provide reasonable assurances that a Project will not be harmful to the water resources of the District, the applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. In this case, the evidence must be viewed under the rule pertaining to modification of permits. Rule 40E-4.331(2)(a) requires the District to review permit modification applications “using the same criteria as new applications for those portions of the project proposed for, or affected by, the modification.” Surface Water Management Criteria Water Quantity and Flooding Rule 40E-4.301(1)(a) and (b) address adverse water quantity to receiving water bodies and flooding either onsite and offsite. As found, G.L. Homes complied with the applicable criteria to satisfy both of these rules. Storage and Conveyance Rule 40E-4.301(1)(c) requires G.L. Homes to provide reasonable assurances that the Project will not adversely impact storage and conveyance capabilities. As found, the submittal of the Taylor Report provides reasonable assurances that the Project will not adversely affect the conveyance of water. Moreover, although some criticism was aimed at the choice of the friction coefficients used in the Taylor Report, the evidence as a whole proves that the coefficients in the Taylor Report are reasonable and scientifically defensible. Water Quality Rule 40E-4.301(1)(e) requires G.L. Homes to provide reasonable assurances that the Project will not result in adverse water quality impacts. As found, coupled with the clarifications/additions to the USMP suggested by Dr. Harper and accepted by G.L. Homes, the numerous water quality submittals demonstrated compliance with this Rule, including assurances regarding the impairment status of the Cocohatchee Canal. While Petitioner leveled numerous criticisms against the Project’s ability to comply with water quality, none of the criticisms rose to the level of “contrary evidence of equivalent quality.” Taken as whole, and balanced against Petitioner’s lack of equivalent evidence and credible witnesses, the preponderance of the evidence demonstrates that, with the Monitoring Plan additions/clarifications, G.L. Homes meets the District’s water quality criteria. Engineering Principles As required by Rule 40E-4.301(1)(i), G.L. Homes has provided reasonable assurances to demonstrate that the SWMS will be capable, based on generally accepted engineering and scientific principles, of being performed and functioning as proposed. Wetlands Criteria Elimination and Reduction, Secondary and Cumulative Impacts 115. Rules 40E-4.301(1)(f) and (2) and 40E-4.302(1)(b) require G.L. Homes to demonstrate compliance with the following District criteria pertaining to wetland impacts: (1) elimination and reduction; (2) secondary impacts; and (3) cumulative impacts. As found, the 2006 ERP proposes no changes or modifications to the wetlands impacts approved in the 2004 ERP. Therefore, Petitioner’s arguments that these assessments were either not done or done improperly in the previous permit are not valid bases to relitigate those issues. Accordingly, elimination and reduction, secondary impacts, and cumulative impacts addressed in the 2004 ERP are not properly litigated in this modification proceeding, except to the extent that they are affected by the proposed modifications. While the proposed modifications do not affect either elimination and reduction or secondary impacts, they could affect cumulative impacts, depending on whether offset mitigation needed to fully offset wetland impacts is accomplished in the West Collier drainage basin. Wetland Values and Functions to Fish and Wildlife Rule 40E-4.301(1)(d) requires G.L. Homes to provide reasonable assurances that the Project will not adversely impact the value and functions provided to fish and wildlife and listed species by wetlands. Rule 40E-4.301(3) requires an applicant to comply with the District’s mitigation provisions in the BOR. As found, Petitioner’s contention that the revised SWMS affected the values and functions provided to fish and wildlife, particularly the wood stork, was not supported by the weight of the evidence as to onsite mitigation. However, the passage of time and market conditions affected the offsite mitigation proposed and presumably evaluated for the 2004 ERP, and the impacts and mitigation were not re-evaluated for the 2006 ERP. Under Rule 40E-4.331(2), they must be re-evaluated using UMAM, as required by Rule 62-345.100. Public Interest Test The public interest test is limited in scope to only the seven factors set forth in Rule 40E-4.302(2). As found above, after a balancing of the factors, reasonable assurance was not provided that the Project is not contrary to the Public Interest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the proposed 2006 ERP be denied. If it is granted, it should include the additions/clarifications to the USMP suggested by Dr. Harper and accepted by G.L. Homes. DONE AND ENTERED this 15th day of May, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2007.
Findings Of Fact The Proposed Permit This case involves a 65-acre site in north Lee County owned by the City of Ft. Myers. At all material times, the land has been zoned under industrial- equivalent designations. By leases that are not part of this record, Ft. Myers has leased 21.4 acres of the 65 acres to various governmental agencies, including Lee County, Lee County Sheriff's Office, and possibly the Florida Department of Juvenile Justice (formerly known as Department of Health and Rehabilitative Services). The following facilities are presently located on the 21.4 acres: Juvenile Detention Center, Lee County Stockade, Price Halfway House, Sheriff's Office Aviation Department, and Emergency Operations Center. By lease dated September 20, 1993, Ft. Myers leased the remaining 43.6 undeveloped acres to Lee County for a term of 50 years. This lease allows Lee County to use the 43.6 acres for $1 per year, but only for the operation of a Juvenile Justice Facility. Under Paragraph 20 of the lease, Ft. Myers may terminate the lease if Lee County ceases to operate the facility. Likewise, Lee County may terminate the lease if the Department of Juvenile Justice ceases to fund the County's operation of the facility. Under the lease, preference is given to juvenile residents of Ft. Myers. Paragraph 22 of the lease allocates liability to Lee County for claims or damages arising from released fuels, including from pipelines. The lease is not assignable without Ft. Myer's consent. By agreement dated December 17, 1993, Ft. Myers consented to the sublease of the entire 43.6- acre parcel to the Department of Juvenile Justice for the purpose of the construction of a juvenile residential commitment facility. Lee County receives no rent from the Department of Juvenile Justice. In Paragraph 10 of the agreement, the Department of Juvenile Justice agrees to maintain, at its expense, "all improvements of every kind . . .." Lee County must make any repairs to improvements if the Department of Juvenile Justice fails to do so. By subsequent agreement, Respondent Department of Management Services (DMS) became the agent for the Department of Juvenile Justice for the design, permitting, and construction of the juvenile justice facility. By Application for a surface water management permit executed June 16, 1994, DMS applied for a surface water management permit for the construction and operation of a 10.9- acre project known as the Lee County Juvenile Commitment Facility. This 10.9-acre project is part of the 43.6 acres leased to Lee County and subleased to the Department of Juvenile Justice. The application states that the existing 21.4 acres of developed sites, which are leased under separate agreements to different governmental entities, "will be permitted as is." The Staff Review Summary of Respondent South Florida Water Management District (SFWMD) describes the purpose of the application as follows: This application is a request for Authorization for Construction and Operation of a surface water management system to serve a 10.9 acre Institutional project discharging to Six Mile [Cypress] Slough via onsite wetlands and road- side swales. The application also requests Authorization for Operation of a surface water management system serving a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Staff recommends approval of both authorizations with conditions. The Staff Review Summary accurately states that the owner of the land is Ft. Myers. Of questionable accuracy is the statement that Ft. Myers leases to Lee County the 21.4 acres devoted to the five existing facilities. Although Lee County probably is a lessee of some of these parcels, the Lee County Sheriff's Office is the lessee (or perhaps sublessee) of at least two parcels. One of the other parcels may involve a state agency, again under either a lease or a sublease. The Staff Review Summary inaccurately states that the project developer is Lee County. The project developer is DMS or its principal, the Department of Juvenile Justice. The Staff Review Summary reviews the existing development on the 21.4 acres. The improvements consist of the 4.8-acre Juvenile Detention Center, 2.9- acre Price Halfway House, 4.7-acre Lee County Stockade, 5.1-acre Sheriff's Office Aviation Department, and 3.9-acre Emergency Operations Center. The Staff Review Summary states that the footer of the Juvenile Detention Center was inspected in February 1980. The site drains into a 1.2- acre retention pond, which was a natural pond dug out to accept the drainage from the Juvenile Detention Center. A small amount of surface flow drains from the Juvenile Detention Center to a perimeter swale that drains west into a ditch running along Ortiz Avenue. The Staff Review Summary states that the building permit for the Price Halfway House was issued in October 1982. The site drains into the 1.2-acre retention pond, which was apparently enlarged a second time to accept the additional flow. A small amount of the flow from the Price Halfway House also drains to the perimeter swale and west into the Ortiz Avenue ditch. The Staff Review Summary states that the building permit for the Lee County Stockade was issued on May 25, 1976. SFWMD issued an exemption and a determination that no permit was required for two additions to the stockade in 1988 and 1989. For the additional impervious surface added by these additions, one inch of water quality treatment was provided. After the abandonment of a pumping system, drainage of the stockade site consists of water building up in existing onsite ditches and sheet flowing into the Ortiz Avenue ditch. The Staff Review Summary adds that a small retention area constructed at the southeast corner of the site treats stormwater from the stockade and the Sheriff's Office Aviation Department. The summary adds that a small amount of stormwater drains north into an exterior swale that drains into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Sheriff's Office Aviation Department in August 1977. Stormwater from the site sheetflows to exterior swales north and south of the building. When the swales fill up, the water flows into the Ortiz Avenue ditch. The Staff Review Summary states that a building permit was issued for the Emergency Operations Center on October 11, 1977. Drainage from the center flows directly into the Ortiz Avenue ditch. Under "Water Quality," the Staff Review Summary reports that SFWMD "did not require compliance with discharge rate or criteria" based on Section 1.6, Basis of Review for Surface Water Management Permit Applications within the [SFWMD] March 1994 (Basis of Review), which contains guidelines issued by SFWMD for the construction and operation of surface water management systems. The summary adds that there have been no "water quality or quantity complaints associated with this site over the past 18 years since its initial construction." Noting that a surface water management permit is requested for the entire 65-acre parcel, the Staff Review Summary states that the above-described drainage systems for the five existing facilities are "operational and will remain as they now exist." Turning to the proposed development, the Staff Review Summary states that the remaining 43.6 undeveloped acres "will also be leased to Lee County by the City for the proposed commitment facilities." The facilities are accurately described as a 5.2-acre halfway house and a 5.7-acre bootcamp, both of which will be drained by internal drainage swales and culverts flowing into detention areas, which will discharge through a control structure into onsite wetlands leading to the Ortiz Avenue swale. Addressing designed discharge rates, the Staff Review Summary acknowledges that the bootcamp's discharge rate will exceed the allowable rate for a 25-year, three-day storm event. The allowable rate is .33 cfs, and the design rate is .37 cfs. The Staff Review Summary explains that this discrepancy results from the use of the minimum size orifice (three inches) in the control structure. Addressing water quality, the Staff Review Summary reports that commercially zoned sites are required to provide one-half inch dry pretreatment for water quality unless reasonable assurance can be provided that hazardous material will not enter the surface water management system. Determining that no hazardous material will be stored or generated on the site, SFWMD did not require the one-half inch dry pretreatment of runoff. Noting that no surface water management permits have ever been issued for any part of the 65-acre parcel, the Staff Review Summary recommends that, subject to the customary Limiting Conditions, SFWMD issue: Authorization for Construction and Operation of a 10.9 acre Institutional Project discharging to Six Mile Cypress Slough via onsite wetlands and roadside swales, Operation of a 21.4 acre existing facility and 32.7 acres to remain unchanged for a total permitted area of 65.0 acres. Limiting Condition 4 states that the permittee shall request transfer of the permit to the "responsible operational entity accepted by [SFWMD], if different from the permittee." Limiting Condition 8 adds: A permit transfer to the operation phase shall not occur until a responsible entity meeting the requirements in section 9.0, "Basis of Review . . .," has been established to operate and maintain the system. The entity must be provided with sufficient ownership or legal interest so that it has control over all water management facilities authorized herein. Special Condition 11 states: "Operation of the surface water management system shall be the responsibility of Lee County." The Permittee and the Entity Responsible for Maintenance The proposed permit consists of two authorizations. The first authorization is for the construction and operation of the surface water management system on the 10.9-acre parcel on which will be constructed the bootcamp and halfway house. The second authorization is for the operation of the existing surface water management system on the already-developed 21.4 acres and the unimproved surface water management system on the remaining 32.7 acres. There are two problems with the designation of Lee County as the entity responsible for maintaining the permitted surface water management systems. Basis of Review 9.1.B states: To satisfy [P]ermit [L]imiting [C]ondition [8], the Permittee must supply appropriate written proof, such as either by letter or resolution from the governmental entity that the governmental entity will accept the oper- ation and maintenance of all the surface water management system components . . .. The authorization for operation of the systems on the 21.4-acre and 32.7-acre parcels does not await any construction. Once the permit is issued, the authorization is effective. Therefore, all prerequisites to the designation must have been satisfied before the operation permit issues. For the 21.4-acre parcel, DMS has not provided reasonable assurance that Lee County is the lessee or sublessee of all of the parcels underlying the five existing facilities. In fact, it appears that Lee County is not the lessee or sublessee of all of these parcels. Even if Lee County were the lessee or sublessee of these five parcels, DMS has not provided reasonable assurance that Lee County has assumed responsibility for the maintenance of the surface water management system for the five parcels. Contrary to Basis of Review 9.1.B, there is no written agreement by Lee County to assume operational responsibility, nor is there even an actual agreement to this effect. SFWMD's rules sensibly require that written consent be obtained before the operation permit is issued. Likewise, DMS has failed to show that Lee County has agreed to assume responsibility for the operation and maintenance of the surface water management system for the 32.7-acre parcel. Again, SFWMD must obtain written consent before issuing the permit because no construction will precede operation for the surface water management system on this parcel. Unlike the situation as to the 21.4-acre parcel, the 32.7-acre parcel is leased to Lee County as part of the 43.6- acre parcel. But in the December 17, 1993, agreement, the Department of Juvenile Justice, not Lee County, assumes responsibility for maintaining all improvements, which arguably includes drainage improvements. As between Ft. Myers and Lee County, Lee County assumes secondary liability for the maintenance of all improvements. But the failure of the Department of Juvenile Justice to do so would likely represent a default under the agreement. In such a case, the lease and separate agreement probably would either be in litigation or Lee County would have terminated its obligations under the contracts. In either case, it is unlikely that Lee County would perform its secondary responsibility to maintain the drainage improvements, especially where it is receiving no rent from the Department of Juvenile Justice and priority is given to Ft. Myers juveniles in admission decisions. Construction will precede operation as to the 10.9- acre parcel so the parties have an opportunity, even after the construction and operation permit is issued, to secure the necessary written consent before the operation permit goes into effect. But similar deficiencies exist with respect to the 10.9- acre parcel because the same agreement imposes upon the Department of Juvenile Justice, not Lee County, the obligation to maintain improvements. An additional complication arises as to the 10.9-acre parcel. The Department of Juvenile Justice intends to contract with one or more private entities to operate the bootcamp and halfway house, so there is at least one more party that Lee County could claim was responsible for maintenance of the surface water management system. The question of who is responsible for maintaining the surface water management systems is important. Drainage quantities and directions can change if swales clog up with vegetation or other matter. In this case, one roadside swale in the area of the 21.4-acre parcel is blocked with vegetation. DMS and SFWMD have thus failed to provide reasonable assurance that the designated entity has assumed responsibility for the maintenance and operation of the existing systems or will assume responsibility for the maintenance and operation of the proposed system following its construction. Permit for Existing Development Section 1.6, Basis of Review, states: [SFWMD] issues construction and operation permits for proposed surface water management activities and operation permits for existing systems. The criteria herein are specifically designed to apply to proposed activities (construction and operation permits). Therefore, some of the criteria may not be applicable to the permitting of existing systems (operation permits). For example, in some cases, existing systems may not meet flood protection criteria. Criteria deviation for existing systems will be identified in staff reports. SFWMD has produced no evidence explicating the extent to which existing systems, such as the systems on the 21.4- and 32.7-acre parcels, are entitled to operating permits without meeting some of the criteria applicable to proposed systems, such as the system on the 10.9-acre parcel. There is nothing whatsoever in the record to explain why certain existing systems might not have to meet certain criteria, such as flood protection criteria. Except for the quantity deviation discussed below, there is nothing in the record disclosing the extent to which SFWMD has waived, or even considered the applicability of, certain or all criteria prior to the issuance of operation permits for the existing systems. In practice, SFWMD does not adhere even to the vague standards implied in 1.6. According to the SFWMD witness, the practice of SFWMD, as reflected in this case as to the systems on the 21.4- and 32.7-acre parcels, is to permit existing systems "as is, where is," as long as they have had no reported problems. There are numerous deficiencies in the "as is, where is" unwritten policy, apart from the obvious one that it conflicts with the assurance of 1.6 that only "some of the criteria may not be applicable" to existing systems. First, the record does not define what a "problem" is. Second, the record discloses no means by which reported problems are collected and later accessed, such as by a parcel index. The "as is, where is" policy is an abdication of the limited responsibilities that SFWMD imposes upon itself in 1.6, especially when applied to the present facts. The facts are straightforward. Neither Ft. Myers, Lee County, nor any other party has ever obtained a permit for any surface water management system, despite numerous improvements in the past 20 years requiring such permits, including the construction of a heliport, at which maintenance and refueling of helicopters takes place. In two relatively minor cases, discussed below, SFWMD erroneously determined that no permit was required. In one of those cases, the applicant, Lee County, candidly admitted the existence of a flooding problem. Based on the present record, neither DMS nor SFWMD has justified the issuance of an operation permit for the systems on the 21.4- and 32.7-acre parcels based either on Basis of Review 1.6 or on the "as is, where is" unwritten policy. Construction of the five improvements on the 21.4 acres began between 1975 and December 1977 with construction of a portion of the Lee County Stockade building and parking, Emergency Operations Center building and parking, and a now- removed barn for the Lee County Sheriff's Office. At the same time, a lake was dug, probably for fill purposes. By the end of 1977, about 2.39 acres of the 21.4 acres were converted to impervious surface. From 1978 to March 1980, another 0.96 acres of the 21.4 acres were converted to impervious surface by the construction of a perimeter dike and road. During this period, construction commenced on the Juvenile Detention Center, adding another 1.63 acres of impervious surface. Between March 1980 and December 1981, additions were made to the Lee County Stockade building and the lake for an additional 0.45 acres of impervious area. Between December 1981 and March 1984, the Price Halfway House building and parking were constructed, adding another 0.79 acres of impervious surface. Between March 1984 and February 1986, a heliport facility and landing area were constructed for the Lee County Sheriff's Office, adding another 1.01 acres of impervious surface. Between February 1986 and February 1990, an additional 2.31 acres of impervious surface were added through additions to the Lee County Stockade and parking area, juvenile detention center, and Emergency Operations Center parking area. Between February 1990 and April 1993, another addition to the Lee County Stockade added 0.62 acres of impervious surface. An additional 0.17 acres of lake was excavated. During this time, applicable rules and statutes required permits for the construction of "works" affecting surface water, including ditches, culverts, and other construction that connects to, or draws water from, drains water into, or is placed in or across the waters in the state. The buildings, parking, other impervious surfaces, ditches, swales, dikes, lake excavations, and, at one point, addition of a now- abandoned pump all constituted "works" for which surface water management permits were required. In 1988, Lee County or Ft. Myers applied for an exemption for an addition to the Lee County Stockade. The basis for the claim of exemption was that the parcel consisted of less than 10 acres and the total impervious surface did not exceed two acres. Although rules in effect at the time required consideration of the contiguous 65 acres under common ownership and the total impervious surface for the 9.7-acre "parcel" exceeded two acres, SFWMD erroneously issued an exemption letter. The second instance involving a claim of exemption took place in 1989 when Lee County submitted plans for another addition to the Lee County Stockade, adding 0.51 acres of impervious surface. The submittal acknowledged a "flooding" problem, but promised a master drainage plan for the "entire site." SFWMD determined that no permit would be required due to the promise of a master drainage plan. No master drainage plan was ever prepared. The flooding problem precluded issuance of the operation permit on an "as is, where is" basis for the already-developed 21.4-acre parcel, even assuming that SFWMD adequately justified the use of this unwritten permitting procedure. In fact, SFWMD has not explained adequately its "as is, where is" permitting procedure or even the undelineated permitting criteria referenced in 1.6, Basis of Review. The 65- acre parcel is a poor candidate for preferential permitting of existing systems. The owner and developer constructed the existing systems in near total disregard of the law. The two times that the owner and developer complied with the permitting process involved small additions for which exemptions should not have been granted. In one case, SFWMD exempted the proposed activity due to its error calculating minimum thresholds as to the areas of the parcel and the impervious surface. In the other case, SFWMD exempted the proposed activity partly in reliance on a promised master drainage plan that was not later prepared. To issue operation permits for the existing systems on the 21.4- and 32.7-acre parcels would reward the owner and developer of the 65-acre parcel for noncompliance with the law and provide an incentive for similarly situated landowners and developers likewise to ignore the law. Before issuing operation permits on systems that have received no comprehensive review and that have been added piecemeal over the years, SFWMD must evaluate the surface water systems on the entire 65-acre parcel to determine whether they meet all applicable criteria. The "as is, where is" unwritten policy has no applicability where there have been reports of flooding. If SFWMD chooses to dispense with criteria in reliance upon Basis of Review 1.6, it must be prepared to identify and explain which criteria are waived and why. Water Quality Basis of Review 5.2.2 provides that projects that are zoned commercial or industrial, such as the present one, must provide one-half inch of "dry" detention or retention pretreatment, unless reasonable assurances are provided "that hazardous materials will not enter the project's surface water management system." There is no existing or proposed dry detention on the 65 acres. The existing development includes the Sheriff's Office Aviation Department, which serves as a heliport. The fueling and maintenance of helicopters means that contaminants may enter the stormwater draining off the site. The functioning of the surface water system on this site is therefore of particular importance. There also may be more reason to question the functioning of the surface water system on this site. It is south of the Lee County Stockade, where flooding has been reported. The heliport site has also been the subject of more elaborate drainage improvements, such as the location of a small retention pond near the Stockade boundary and a pump, the latter of which has since been abandoned. The existing system on the 21.4-acre parcel, as well as the existing and proposed systems on the remainder of the 65 acres, require dry pretreatment for reasons apart from the presence of the heliport. The materials likely to be used with the existing and proposed developments are similar to those found on residential sites. SFWMD and DMS contend that there is therefore no need to require dry pretreatment as to these areas. However, the existing and intended institutional uses, such as jails and bootcamps, represent an intensity of use that exceeds the use typical in areas zoned residential. This increased intensity implies the presence of typical residential contaminants, such as petroleum-based products or cleaning solvents, but in greater volumes or concentrations, if not also, in the case of solvents, different compositions. The lease addresses potential liability for released petroleum. In the absence of a showing that such hazardous materials are prevented from entering the runoff, SFWMD must require dry pretreatment for the systems occupying the entire 65-acre parcel. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quality criteria or that the proposed system will satisfy applicable water quality criteria. Water Quantity The 65-acre parcel adjoins Ortiz Avenue on the west and property owned by Petitioners on the east and south that is undeveloped except for a borrow pit some distance from the 65- acre parcel. The parcel is roughly 1000 feet east- west and 2700 feet north-south. The proposed halfway house is at the north end of the parcel. The halfway house is situated between a proposed detention pond on the west and a recreation field on the east. A paved road divides the halfway house from the rest of the 65- acre parcel. South of the road are the Lee County Stockade on the west, which abuts Ortiz Avenue, and the Juvenile Detention Center on the east. A berm separates these two sites. The berm runs from the road along the west shore of the twice- enlarged 1.2- acre retention pond and the west boundary of the Price Halfway House, which is south of the Juvenile Detention Center. To the west of the berm, south of the Lee County Stockade, is the Sheriff's Office Aviation Department or heliport facility, which abuts Ortiz Avenue. South of the Aviation Department is an outparcel used by the Florida Department of Corrections that also abuts Ortiz Avenue. East of the outparcel is the proposed halfway house with a proposed detention pond west of the halfway house and south of the outparcel. The Emergency Operations Center, which abuts Ortiz Avenue, is south of the detention pond and surrounded on three sides by the 32.7 acres to be left undisturbed at this time. There are perimeter berms around all of the parcels except for the Juvenile Detention Center and Price Halfway House, which are served by a single berm, and the Emergency Operations Center, which appears not to be bermed. The prevailing natural drainage is not pronounced either by direction or volume because the land is nearly level. The natural direction of drainage is to the south and west and remains so on Petitioners' land to the east and south and the undisturbed 32.7 acres to the south. The variety of drainage directions within the remainder of the 65- acre parcel reflects the extent to which berms, swales, ponds, pumps, roads, buildings, parking areas, and other works have been added to the northerly parcels. Runoff reaching the northern boundary of the 65 acres will be diverted due west around the proposed detention pond to the swale running along the east side of Ortiz Avenue. Runoff from the recreation field and halfway house building and parking area drain into the proposed detention pond, which releases water through a gravity control device to the Ortiz Avenue swale. There appears to be a connection routing some runoff from the south side of the recreation field to the Juvenile Detention Center, where it travels west in a roadside swale to the Ortiz Avenue swale. A little less than half of the area of the Juvenile Detention Center site drains into perimeter swales along the north and east borders and then to the west before emptying into the Ortiz Avenue swale. The remainder of the Juvenile Detention Center drains into the retention pond. The same is true of the Price Halfway House. The Lee County Stockade drains to each of its borders where the water then runs west along the north or south border to the Ortiz Avenue swale. The southern half of the Lee County Stockade site drains into the small retention pond at the northwest corner of the Sheriff's Office Aviation Department. Most of the runoff from the heliport facility runs to the southwest corner of the parcel, which is the location of the abandoned pump. From there, the runoff continues to the Ortiz Avenue swale. Very little if any of the runoff from the heliport enters the small retention pond on the northwest corner of the parcel. The bootcamp drains into the detention pond, which then releases water by a gravity control structure into a portion of the undisturbed 32.7-acres before entering the Ortiz Avenue swale. The Emergency Operations Center site drains in all directions away from the building and parking area, eventually draining into the Ortiz Avenue swale. Stormwater discharge rates from the proposed halfway house and bootcamp are 0.28 cfs and 0.37 cfs. Under SFWMD rules, the allowable maximums in the Six Mile Cypress drainage basin are 0.30 cfs and 0.33 cfs, respectively. SFWMD and DMS contend that the excessive discharge from the bootcamp is acceptable because the gravity control device for the proposed detention pond is of the smallest size allowable, given the indisputable need to avoid clogging and ensuing upstream flooding. Initially, SFWMD approved the discharge rates for the halfway house and bootcamp because, when combined, they did not exceed the total allowable value. However, this approach was invalid for two reasons. First, the two sites contain entirely independent drainage systems separated by several hundred feet. Second, after correcting an initial understatement for the value for the halfway house, the actual total exceeds the maximum allowable total. SFWMD contends that the slight excess is acceptable because of the inability to use a smaller orifice in the gravity control structure. However, the discharge quantity easily could have been reduced by design alternatives, such as enlarging the detention pond, which is mostly surrounded by land that is to be left undisturbed. The ease with which the minimum-orifice problem could have been avoided rebuts the presumption contained in Basis of Review 7.2.A that excessive discharge quantities are presumably acceptable if due to the inability to use a smaller orifice. Also, SFWMD and DMS have failed to show that the effect of the excessive discharge quantities is negligible, so the exception in the SFWMD manual for negligible impacts is unavailable. Neither SFWMD nor DMS provided any reasonable assurance as to the quantity of discharge from the 21.4 acres. Rough estimates suggest it is more likely that the quantity of discharge may greatly exceed the allowable maximum. SFWMD must evaluate the water-quantity issues before issuing operation permits for the systems on the 21.4- and 32.7- acre parcels and a construction and operation permit for the 10.9-acre parcel. Obviously, if SFWMD determines that all water quantity criteria are met as to the existing systems, it may issue operation permits for the systems on the 21.4- and 32.7- acre parcels. Otherwise, SFWMD must quantify the extent of the deviation and, if it seeks to waive compliance with any or all quantity standards in reliance on Basis of Review 1.6, evaluate the effect of the waiver and explain the basis for the waiver. DMS and SFWMD have thus failed to provide reasonable assurance that the existing systems satisfy applicable water quantity criteria or that the proposed system will satisfy applicable water quantity criteria. Impacts on Adjacent Lands Petitioners' property is impacted by the above- described drainage in two ways. First, Petitioners' property abutting the east side of Ortiz Avenue, south of the 65 acres, is especially vulnerable to flooding because the Ortiz Avenue swale is not a V-notch, but a half-V. The closed side of the swale prevents the water from running onto Ortiz Avenue. The open side of swale abuts Petitioners' property, so, if the swale's capacity is exceeded, stormwater will be released onto Petitioners' land. Second, perimeter berming along the east side of the 10.9- and 21.4- acre parcels will impede flow off the part of Petitioners' property located to the east of the 65 acres. A swale between the proposed halfway house and the Juvenile Detention Center will receive runoff from a small portion of Petitioners' property to the east and mostly north of the 65 acres. But there is no indication how much runoff from Petitioners' property can be so accommodated, how much runoff is impeded by the existing berm along the east side of the Juvenile Detention Center and Price Halfway House, and how much runoff will be impeded by the addition of new berms along the east side of the proposed halfway house and bootcamp. Basis of Review 6.8 requires that swales and dikes allow the passage of drainage from off-site areas to downstream areas. Rule 40E-4.301(1)(b), Florida Administrative Code, requires that an applicant provide reasonable assurances that a surface water management system will not cause adverse water quality or quantity impacts on adjacent lands. Neither SFWMD nor DMS obtained topographical information for Petitioners' property, as required by the Basis of Review. Rough estimates suggest that the proposed project may require Petitioners' property to retain considerably more stormwater from the design storm event of 25 years, three days. DMS and SFWMD have thus failed to provide reasonable assurance that the proposed system would not have an adverse impact on Petitioners' upstream and downstream land.
Recommendation It is hereby RECOMMENDED that the South Florida Water Management District enter a final order denying the application of the Department of Management Services for all permits for the operation and construction and operation of surface water management systems on the 65-acre parcel. ENTERED on June 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on June 19, 1995. APPENDIX Rulings on Proposed Findings of Petitioners 1-18: adopted or adopted in substance. 19: rejected as subordinate. 20-21: adopted or adopted in substance. 22-24 (first sentence): rejected as irrelevant. 24 (remainder)-46: adopted or adopted in substance. 47-53: rejected as subordinate. 54-64 (first sentence): adopted or adopted in substance. 64 (second sentence)-66: rejected as subordinate. Rulings on Proposed Findings of Respondent SFWMD 1-10: adopted or adopted in substance. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as unnecessary. 13: adopted or adopted in substance. 14-15: rejected as subordinate. 16: rejected as unsupported by the appropriate weight of the evidence. 17 (except for last sentence): adopted or adopted in substance. 17 (last sentence): rejected as unsupported by the appropriate weight of the evidence. 18-32 (first sentence): rejected as unnecessary. 32 (remainder): rejected as unsupported by the appropriate weight of the evidence. 33: rejected as subordinate. 34: rejected as unsupported by the appropriate weight of the evidence, except that the proposed ponds are wet detention. 35 (first sentence): adopted or adopted in substance. 35 (remainder): rejected as unsupported by the appropriate weight of the evidence. 36-45: rejected as unnecessary. 46-47: rejected as unsupported by the appropriate weight of the evidence. 48-50 (second sentence): adopted or adopted in substance. 50 (remainder): rejected as unsupported by the appropriate weight of the evidence. 51-52, 55-57 (first sentence), and 58: adopted or adopted in substance, although insufficient water quality treatment. 53: adopted or adopted in substance. 54: rejected as unsupported by the appropriate weight of the evidence. 57 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 59: rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance, except after "therefore." None of remainder logically follows from what is said in 1.6. 61: rejected as unsupported by the appropriate weight of the evidence. 62-64: rejected as subordinate, unsupported by the appropriate weight of the evidence, and irrelevant. 65: rejected as subordinate. 66: rejected as irrelevant. The burden is on the applicant and SFWMD, if it wishes to issue the permits, to provide reasonable assurances as to the adverse impact of the drainage systems. 67-68: rejected as subordinate. 69: rejected as unsupported by the appropriate weight of the evidence. 70: rejected as unsupported by the appropriate weight of the evidence. 71: rejected as repetitious. 72: rejected as irrelevant, except for past report of flooding, which is rejected as repetitious. 73: rejected as repetitious. 74: rejected as irrelevant and subordinate. 75 (first three sentences): adopted or adopted in substance. 75 (remainder): rejected as unsupported by the appropriate weight of the evidence. 1 and 2: rejected as irrelevant insofar as the same result is reached with or without the permit modifications. Rulings on Proposed Findings of Respondent DMS 1-4: adopted or adopted in substance. 5: rejected as subordinate. 6: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 8: rejected as subordinate. 9: adopted or adopted in substance, except that the excessive discharge was not "caused" by the minimum-sized orifice, only defended on that basis. 10: adopted or adopted in substance. 11-12: rejected as subordinate. 13: rejected as irrelevant. 14: adopted or adopted in substance. 15: adopted or adopted in substance, except for implication that no flooding problems existed. 16: rejected as recitation of evidence. 17: rejected as subordinate. 18: rejected as irrelevant. 19: adopted or adopted in substance, to the extent that separateness of systems is relevant. 20: rejected as subordinate. 21: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate. 23-30: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence, based on the present record. 33: rejected as unsupported by the appropriate weight of the evidence and relevance. COPIES FURNISHED: Tilford C. Creel Executive Director South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416 Russell P. Schropp Harold N. Hume, Jr. Henderson Franklin P.O. Box 280 Ft. Myers, Fl 33902 O. Earl Black, Jr. Stephen S. Mathues Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, FL 32399-0950 Vincent J. Chen Toni M. Leidy South Florida Water Management District 3301 Gun Club Road West Palm Beach, FL 33401
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
