The Issue The issue in the case is whether amendments to the Lee County comprehensive plan are not in compliance for the reasons set forth in the amended petition of Petitioners.
Findings Of Fact I. Background Petitioners own legal and/or equitable interests in about 8600 acres in northwest Lee County (the Property). North and west of the Caloosahatchee River, the Property abuts Cape Coral on the south, US 41 on the east, Burnt Store Road on the west, and Charlotte County on the north. The Property is about one and one-half miles east of Charlotte Harbor. Gator Slough runs through the southeast corner of the Property before emptying into Charlotte Harbor. Acquired almost entirely in the 1950's, the Property is not entirely contiguous. It occupies ten entire square-mile sections and parts of six more square-mile sections in unincorporated Lee County. Petitioners also own about one-third of an adjoining section in Cape Coral, but this area is not relevant to the present case. Lee County adopted its comprehensive growth management plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the subject plan amendments, the Plan). The Department of Community Affairs determined that the Plan was not in compliance with the Act. Litigation ensued under Section 163.3184(10) and remains pending as DOAH Case No. 89- 1843GM, as well as two other related cases. A partial settlement was reached in DOAH Case No. 89- 1843GM. Petitioners' interests in the above-described 8600 acres were represented in DOAH Case No. 89-1843GM by Intervenor Wiss, as Trustee. Intervenor Wiss declined to enter into the settlement, but his claims were abated with the remainder of the case while Lee County considered and adopted settlement amendments. As part of the plan amendment process, there were two meetings of the local planning agency, which were properly noticed by newspaper publication. As required, notice of the transmittal hearing of March 3, 1990 was also published. The two adoption hearings, which were held on September 6 and 12, 1990, were also properly noticed by newspaper publication. County representatives generally considered all comments and responded to many comments, including some but not all of the comments made on behalf of Petitioners. Pursuant to the settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan Amendments 90-1 and 90-2 (the Plan Amendments), which are the subject of the present case. The Plan, as amended by the Plan Amendments, will be referred to as the Amended Plan. The Plan Amendments are included in a three-volume package, which is Petitioners Exhibit 331. The third volume, Petitioners Exhibit 331.c, contains the Plan Amendments, as well as accompanying data and analysis. (The data and analysis compiled and submitted to DCA with the original Plan or later with the Plan Amendments will be referred to as the Data and Analysis.) Among other things, the Plan Amendments resulted in the redesignation of 96,712 acres on the future land use map (FLUM) from Open Lands and Rural to a new future land use category, Density Reduction/Groundwater Resource. Three areas received the new designation. One is a large area in southeast Lee County south of Lehigh Acres and east of Interstate 75. Another area is a strip about 20 miles east-west and two miles north-south bordering the Charlotte and Hendry County lines. The third area designated Density Reduction/Groundwater Resource includes the Property. The 16 sections in unincorporated Lee County wholly or partly owned by Petitioners and constituting the Property lie within an area of 23 contiguous square-mile sections that are generally designated Groundwater Resource/Density Reduction. The larger area designated Groundwater Resource/Density Reduction almost completely occupies the above-described area of unincorporated Lee County from Burnt Store Road on the west between Charlotte County and Cape Coral to US 41 on the east with the exception of about two square-mile sections designated Suburban along US 41 south of the portion of the Property abutting US 41. As is the case with the other two areas designated Density Reduction/Groundwater Resource, the only other designation on the Property and the larger area of 23 sections is Resource Protection Areas and Transition Zones. The areas designated Resource Protection Areas and Transition Zones in the 23-section area represent substantial acreage, especially in the northern and western halves of the 23-section area. The Data and Analysis accompanying the Plan Amendments explain the purpose and effect of the Density Reduction/Groundwater Resource designation: During the state agency review of the 1989 Lee Plan, concern was expressed that, in sparsely-developed areas which coincide with areas of potential future water supply development, allowable densities were inconsistent with effective land use planning and too high for protection of groundwater resources. While a comprehensive assessment of existing programs that relate to water resources has already been accomplished (pp. II(e)-I through II(e)-27 of the support documentation of the Community Facilities and Services Element of the 1989 Lee Plan), the assessment did not include an evaluation of appropriate densities in sensitive water resource areas. Four regional investigations conducted over the past decade provide the basis for estimating future water demand, predicting likely supply sources to meet that demand, and developing strategies to insure that sources of supply are not depleted or degraded. The 1981 investigation by Hole, Montes & Associates, Inc. [Hole Montes Study; citation omitted] defined and mapped Lee County groundwater sources east of U.S. 41, evaluated their long-range potential for sustained withdrawals, examined future wellfield options, and outlined a Water Master Plan for potable supply and distribution. The South Florida Water Management District (SFWMD) described, in its 1982 report [Reconnaissance Report; citation omitted], the hydrogeology and groundwater quality of Lee County, and suggested conceptual land-use controls to preserve and maximize water supply potential. The 1987 work by Camp, Dresser & McKee, Inc. (CDM) [Camp Dresser Report; citation omitted] detailed the geometry and hydraulic characteristics of hydrogeologic units, modeled groundwater flow throughout the County, and furnished the technical foundation for the recently-enacted Wellfield Protection Ordinance. James M. Montgomery, Consulting Engineers, Inc., completed an investigation [Montgomery Study; citation omitted] in 1988 that included a detailed assessment of future water demand, a comprehensive reevaluation of groundwater resources, and an analysis of measures needed to ensure that future demand does not exceed supply capability. Projected future water demand has most recently been addressed by the Montgomery study. Demand was evaluated for the case in which all reasonable conservation methods were adopted, and for the case in which conservation was no greater than currently practiced. With extreme conservation, total demand in Lee County is predicted to increase from 132 million gallons per day (MGD) in 1988 to 234 MGD in 2010; the corresponding increase in potable demand supplied by utilities is from 22 MGD in 1988 to 55 MGD in 2010. Without concerted conservation efforts, total demand is predicted to rise from 194 MGD in 1988 to 368 MGD in 2010; 1988 utility demand will increase from 39 MGD to 102 MGD. If, for discussion purposes, the middle of these ranges is selected as a basis for water supply planning, the total need for additional water in 2010 will increase by 85%, to 301 MGD; the need for potable water supplied by utilities in 2010 will increase by 157%, to 78.5 MGD. Where this additional water will come from has been addressed by several of the regional investigations. The three sources which have been identified and considered are: a) shallow aquifers that are recharged by local rainfall; b) deeper aquifers that contain slightly saline to saline water; and c) the Caloosahatchee River. Regarding increased withdrawals from the River, the Montgomery study concludes that the discharge pattern is unreliable and strongly dependent upon upstream releases managed by the SFWMD. Additional supply might be feasible, but will likely be limited by competition from other users. In any event, off-stream storage (for example, a reservoir) would be required. No additional quantities can currently be predicted or assured. Increased used of deeper aquifers that underlie Lee County will probably play some role in meeting future demand, though there is little documentation of the long-term supply capability of these sources. The two aquifers in question are the Lower Hawthorne and the Suwannee aquifers, informally named to correspond with their occurrence in identified geologic units. While both aquifers are suspected to contain large volumes of developable water, it is generally agreed that some form of desalinization (for example, reverse osmosis) will be necessary to make water from these sources suitable for potable use. As a consequence, two attendant disadvantages arise. One is the substantial cost associated with desalinization, a result of the energy-intensive nature of the treatment process. Second is the need for, and expense of providing, an environmentally acceptable method for disposing of the brine that is a treatment byproduct. This is commonly accomplished by deep well injection, at rather extraordinary cost. Among the investigations previously cited, there is a consensus that the shallow aquifers in Lee County have the greatest potential for meeting future water supply needs. These aquifers are, in descending order from land surface, the Water Table, Lower Tamiami, and Sandstone aquifers. Each has its own particular areal extent, depth, thickness, hydraulic properties, water quality, and current usage, but they have in common the important characteristic of being recharged locally, from rainfall, surface water, and downward seepage. Because they are relatively shallow and not overlain by thick clayey sediments, they share as well a sensitivity to, and the potential for, impact as a result of man's activities at land surface. This sensitivity is especially pronounced for the Water Table aquifer, which responds directly and rapidly to surface conditions. Furthermore, this latter aquifer has been identified in the Hole- Montes and Montgomery studies as the single largest source of future potable water supply. A reduction in recharge to the Water Table aquifer occurs when the average elevation of the water table is lowered, most typically by promoting and accelerating runoff through drainage improvements. The consequences of a reduction in recharge to the water table aquifer are: a) a decrease in recharge to underlying aquifers and a lowering of their potential for sustained withdrawals; b) a reduction in the volume of water available for use (termed the "safe yield"); and c) a loss in aquifer storage, which represents an increased probability of environmental impacts during prolonged dry periods. All regional studies which have addressed this issue conclude that maximizing the potential of shallow aquifers in Lee County requires, through appropriate land use controls, the water table to be maintained at or above existing levels. This is especially important because very little rainfall recharges the aquifer during the winter. This dry period coincides with Lee County's seasonal population peak (and corresponding peak water demand). Water quality impacts to the Water Table aquifer are of particular concern, as there is no overlying confining layer to prevent or retard the entry of contaminants. Once introduced, pollutants will migrate to underlying shallow aquifers, because these are recharged from above, and towards wellfields, because these are normally downgradient, discharge areas. Experience demonstrates that contamination may spread, undetected, in a plume-like fashion over large areas, and may be extremely costly to correct. While these concerns have been addressed for existing wellfields through adoption of the Wellfield Protection Ordinance, future wellfield areas, which have been identified only on a broad regional basis, have no such protection. Though the water table aquifer is recharged almost everywhere in Lee County, hydrologic studies have identified specific areas in which recharge is particularly effective, and corresponding areas which hold the greatest potential for future water supply development (figure II.D-l). Delineation of these areas has also been accomplished for the Lower Tamiami aquifer (figure II.D-2) and, to a lesser extent, the Sandstone aquifer (figure II.D-3). South of the Caloosahatchee River, these areas can be generally described as land east of 1-75 and south of SR 82. North of the Caloosahatchee River, areas important for both their recharge function and their potential for future withdrawals include non-urbanized areas near Charlotte County (figure II.D-4). Water supply development in the most favorable areas depends on the ability to capture water that is otherwise lost to evaporation and runoff, and on maintaining acceptable water quality. The principal constraint on the volume of available water is likely to be avoidance of impacts to wetlands, which, particularly in the southern area, are abundant. Studies suggest that, for environmental protection, it may be necessary to abandon traditional concepts of large, focused withdrawals from relatively small wellfield areas. Instead, low- yielding wells widely spaced from one another may be required [citation to Hole Montes Study]. As a consequence, it is not unlikely that most to all favorable recharge and water supply areas will eventually be within the cone of depression of one or more wellfields. Estimates of the safe yield of promising water supply areas north of the Caloosahatchee River have not been made, and will require additional data collection and on-site testing. For favorable areas south of the river, the Hole-Montes investigation concludes that the safe yield may be limited by environmental constraints to about 70 MGD, or only 23% of the averaged 301 MGD which would be required in 2010. Regional investigations are unanimous in their conclusion that land- use controls are necessary to preclude activities which, through increased runoff or water quality degradation, may decrease the potential safe yield of these shallow groundwater resources. There is no universal consensus as to the proper type of land-use controls which are needed to protect shallow groundwater resources. Lee County is in the forefront of communities which prohibit the use of many toxic substances near potable wells and protect the quality of discharges which may affect existing potable water wells. However, the weakness of the current regulations is that urban development can under certain circumstances take place in the very areas which are expected to provide the community's future water supply. However, Lee County is fortunate in that a very considerable portion of the overall land mass is available for development and in fact is more favorably suited for urban development than is the land in the prime groundwater resource areas. There is no need to choose between protecting future groundwater resources and limiting overall development opportunities. The Future Land Use Map designates ample land for urban development over the coming several decades. Therefore, a conservative approach can be taken which encourages urban development in accordance with the overall concepts of the Lee Plan, yet restricts such development in the prime groundwater resource areas. As more is learned about techniques for protecting these areas, it is possible that the restrictions against urban development can be modified. But there is no need to experiment with such a crucial part of the community's future at this time. Of course, reasonable use must still be allowed to land owners in these areas. An example of such uses are rural residential development at very low densities; limerock and fill dirt mining which cause no significant alteration of groundwater levels; all conservation uses; and continued agricultural activities. But urban development, with its resulting demands for improved drainage and associated commercial/industrial/institutional development, should not be permitted. To provide for protection of recharge and future water supply areas, the following changes are hereby made to the Lee Plan[.] Petitioners Exhibit 331.c, pages II-4 to II-12. The above-cited Data and Analysis also contain four figures: Montgomery Study Plates 83-85 (Figures II.D-1 through II.D-3, respectively), which show places with potential well development areas for public water supply, and Hole Montes Study Plate 19 (Figure II.D-4), which shows places with potential for additional groundwater development. The most relevant provisions of the Amended Plan are set forth below. Changes made by the Plan Amendments are shown by striking through deletions and underlining additions. Underlined portions of the Amended Plan are shown in boldface. Future Land Use Element (FLUE) Objective 1.4 divides "Non-Urban Areas" into three designations that "are not anticipated for urban development at this time." The designations are Rural, Outer Islands, and the new category, Groundwater Resource/Density Reduction. FLUE Policy 1.4.3 provides: The Density Reduction/Groundwater Resource areas include upland areas that provide substantial recharge to aquifers most suitable for future well field development. These areas also are the most favorable locations for physical withdrawal of water from those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas must be compatible with maintaining surface and groundwater levels at their historic levels. Permitted land uses include agriculture, mineral and limerock extraction, conservation uses, and residential uses at a maximum density of one dwelling unit per ten acres (1 du/10 acres). Individual residential parcels may contain up to two acres of resource protection areas and transition zones without losing the right to have a dwelling unit, provided that no alterations are made to those wetland areas. FLUE Objective 1.5 identifies "Environmentally Sensitive Areas," which "because of overriding environmental considerations" allow development "only at very low densities and intensities." Objective 1.5 divides "Environmentally Sensitive Areas" into two designations, Resource Protection Areas and Transition Zones, which are combined into a single designation on the FLUM. FLUE Policy 1.5.1 provides: The Resource Protection Areas include lands that exhibit soil types, hydrology, and vegetation characteristic of freshwater and saltwater wetlands. They are areas in which it is necessary to protect, conserve, restore, or preserve water resources systems and the biological functions attendant thereto. These areas are unsuitable for all but extremely low-density development for one or more of the following reasons: To prevent degradation of water quality. To prevent degradation of freshwater storage capabilities. To prevent the degradation of biological productivity. To prevent damage to property and loss of life due to flooding. To prevent degradation of the viability and diversity of native plants and animals and their habitats. To assure the conservation of irretrievable or irreversible resources. Permitted land uses in the Resource Protection Areas consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, or additional drainage is prohibited. Roads above grade may be permitted under specific limited conditions as outlined in the Lee County Wetlands Protection Ordinance, as the same may from time to time be amended. Maximum density is one dwelling unit per forty acres (1 du/40 acre) except as otherwise provided in Table 1. FLUE Policy 1.5.2 states: The Transition Zones include lands that may be seasonally inundated from one to three months as indicated by water marks, do not have depressional soils, and are characterized by a mixture of plant species typical of uplands and wetlands. These areas consist of important water resource areas such as seasonal wet prairies; ephemeral ponds, and/or natural flow-ways and are associated with freshwater and saltwater wetlands. Transition Zones provide a hydrological connection between wetlands and uplands and provide protection and buffering of wetlands from fire, water pollutants, and exotic vegetation. Permitted land uses in the Transition Zones consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, roads above grade, or additional drainage is prohibited unless it is demonstrated that such proposed construction will not: cause higher rates of runoff or degradation of water quality or retention capacity; increase the possibility of flooding; or otherwise alter the existing wetland systems. Maximum density is one dwelling unit per twenty acres (1 du/20 acre) except as otherwise provided in Table 1. FLUE Policy 1.8.5, which was added by the Plan Amendments, precludes the use of a planned unit development for areas designated Density Reduction/Groundwater Resource. Community Facilities and Services (Community Facilities) Element Goal 32 is: To ensure that future populations have access to potable water supplies and services at a reasonable price by using and encouraging conservation and resource management measures to reduce consumption of potable water. Community Facilities Element Objective 32.1 is to implement specified programs by specified dates to "reduce potable water consumption and consumption of large volumes of potentially potable raw water, by 5% by 1994." Community Facilities Element Goal 39 is: To protect the county's potential groundwater resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters. Community Facilities Element Objective 39.1 is to consider surface water runoff as a "possible resource" and requires the County to "consider integrating the use of surface water runoff in any supply program or strategy . . .." Community Facilities Element Policy 39.1.1 states: Lee County recognizes that all fresh waters are a resource to be managed and allocated wisely, and shall support allocations of the resource on the basis 1) of ensuring that sufficient water is available to maintain or restore valued natural systems, and 2) of assigning to any specified use or user the lowest quality fresh water compatible with that use, consistent with financial and technical constraints. Community Facilities Element Policy 39.1.2 provides: The County shall explore, and implement where financially and technically feasible, all existing options for storing and utilizing excess surface water runoff for human consumption and other uses. Such options may include surface impoundments; back-pumping to reservoirs, to upland wetlands, or to ground storage; and ground storage by ex-filtration systems or by aquifer storage and recovery systems. Maximum contaminant levels consistent with Florida DER and US EPA regulations governing receiving waters will be met through treatment as required. Excess surface water runoff shall be defined as the water not required to maintain, or to restore to either historic natural conditions or to some other acceptable state, the hydrograph of streams discharging to estuarine waters or other valued wetland systems. Community Facilities Element Policy 39.1.3 states: In the event that the timing and volume of fresh-water discharges necessary to maintain the health and productivity of estuaries and other wetlands cannot be determined or supported by existing scientific data, the County shall sponsor, in collaboration with other agencies, institutions, and organizations, adequate research programs to make such data available by 1995. Community Facilities Element Policy 39.1.4 states: The county's Surface Water Management Master Plan shall place particular emphasis on 1) routing surface water runoff from areas of excess to areas where additional subsurface storage is available; and 2) maintaining and increasing historic surface and groundwater levels in the Density Reduction/Groundwater Resource land use category. Community Facilities Element Objective 39.2 is to: Support a surface water management strategy that relies on natural features (flow ways, sloughs, strands, etc.) and natural systems to receive and otherwise manage storm and surface water. Community Facilities Element Objective 39.3 is: By 1990, Lee County shall provide sufficient performance and/or design standards for development protective of the function of natural drainage systems. Community Facilities Element Policy 39.3.1 is to: "Provide sufficient performance and design standards to require post-development runoff to approximate the total characteristics of the natural flow prior to development." Community Facilities Element Policy 39.3.4 states: "Natural flow patterns shall be publicly restored where such action is of significant public or environmental benefit, and feasible." Community Facilities Element Goal 41 is: "To protect the County's groundwater supplies from those activities having the potential for depleting or degrading those supplies." Community Facilities Element Objective 41.1 and related policies describe a wellfield protection ordinance to protect the "quality of water flowing into potable water wellfields." Community Facilities Element Objective 41.2 states: During 1989, the cCounty staff shall review all technical data identifying concerning aquifer groundwater recharge areas throughout in Lee County as it becomes available, and propose any necessary modifications to the Future Land Use Map or general county regulations necessary to protect or improve such areas. Community Facilities Element Policy 41.2.1 provides: Based on best available technical data, the County shall designate appropriate areas of the county as sources for future potable water supply and revise development regulations to preclude incompatible uses of this land. Community Facilities Element Policy 41.2.2 states: A new land use category, called the Density Reduction/Groundwater Resource category, shall be applied to protect the County's groundwater resources and principal recharge areas. Land use controls in the category shall be as described in Policy 1.4.3. Community Facilities Element Objective 41.3 is to: Base all future development and use of groundwater resources on determinations of the safe yield of the aquifer system(s) in order not to impair the native groundwater quality or create other environmental damage. Criteria for safe-yield determinations shall be established through groundwater supply and surface water management studies over the years 1989-1993. Community Facilities Element Policy 41.3.1 states: For maximum protection of groundwater resources, identify future wellfields and/or relocation site(s) for existing wellfields well in advance of need. Coordinate with SFWMD, other water suppliers, and DER to avoid duplication and to assist in data collection and interchange. Community Facilities Element Policy 41.3.3 provides: Identify water needs consistent with projections of human population and the needs of natural systems in order to determine the future demands for groundwater. Expand current programs to identify and map the contamination potential of groundwater resources for those areas of Lee County not currently under public ownership. Conservation and Coastal Management (Conservation) Element Objective 84.3 states: Land uses and development designs must protect the values and functions of wetlands, and to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands. Conservation Element Policy 84.3.3 states: "Absent overriding public needs, access roads and land development in the Resource Protection Areas and Transition Zones shall be strongly discouraged." Conservation Element Goal 87 is: "To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability." Conservation Element Objective 87.1 is to: "Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems." Conservation Element Policy 87.1.1 states: "Natural water system features which are essential for retention, detention, purification, runoff, recharge, and maintenance of stream flows and groundwater levels shall be identified, protected, and managed." Conservation Element Policy 87.1.3 is to manage freshwater resources to "maintain adequate freshwater supplies during dry periods and to conserve water." On October 18, 1990, DCA issued a notice of intent to find the Plan Amendments in compliance. On November 16, 1990, Petitioners filed a petition challenging the determination and commencing the subject case. (One of the Petitioners in the present case, Intervenor Wiss, as Trustee, elected not to participate further in DOAH Case No. 89-1843GM.) In the negotiations between DCA and Lee County that culminated in the settlement agreement, each party approached the designation of the northwest part of Lee County from a different perspective. DCA was primarily interested in lowering densities in rural areas, and Lee County was primarily interested in protecting potential sources of potable water. Both interests were served by designating the entire 23-section area, of which the Property is a large part, as Density Reduction/Groundwater Resource with a density of one dwelling unit per 10 acres (1:10), except for smaller areas designated as Resource Protection Areas and Transition Zones. Much of Petitioners' challenge concerns the adequacy of the data and analysis supporting the Density Reduction/Groundwater Resource designation assigned to the Property. Prior to adopting the Plan Amendments, the County hired David Gomberg, Ph.D., a groundwater resources consultant, to determine whether data and analysis supported the Density Reduction/Groundwater Resource designations. County staff directed Dr. Gomberg to review available technical information related to groundwater resources in Lee County. The primary materials were the Hole Montes Study, Reconnaissance Report, Camp Dresser Report, and Montgomery Study (the Four Studies). County staff then requested Dr. Gomberg, following his review of the data and analysis, to prepare text to be incorporated into the Data and Analysis in support of the Plan Amendments. The Hole Montes Study, which is entitled the Lee County Water Master Plan, was completed in December, 1981, and presented to the County on January 26, 1982. The study includes a plan for the "development, protection, and management of water resources until 1995." The Hole Montes Study ignores northwest Lee County-- specifically all of Lee County west of US 41 and north of the Caloosahatchee River. Figure 9-1 (Petitioners Exhibit 51.a) shows two areas to be protected as sources of potable groundwater. One area, which is north of the Caloosahatchee River, is a narrow band running about 20 miles east-west from the vicinity of US 41 to the Hendry County line on Lee County's east boundary. This area abuts Charlotte County to the north. The other area encompasses most of the County south of the river and east of US 41, including the Lehigh Acres area. Much of the two areas are designated as Density Reduction/Groundwater Resource on the FLUM. The Hole Montes Study recommends that development in the two areas described in the preceding paragraph be required to meet certain standards, such as that post-development runoff be less than predevelopment runoff, historic wet season water levels be maintained, and the storage and use of pollutants be regulated. The Hole Montes Study defines the water table aquifer as the "saturated deposits between the water table and the top of the upper confining unit." Petitioners' Exhibit 51.b, page 19. The Hole Montes Study defines transmissivity as a "numerical expression of an aquifer's capability to transmit water." Id. at page 21. Concerning transmissivity, the Hole Montes Study elaborates: It is generally advantageous to site a wellfield where an aquifer has its highest transmissivities. In these areas fewer wells will be needed to meet demand, while producing the least detrimental effect upon water levels in the area. Id. With respect to its study area, which excludes the area of the Property, the Hole Montes Study recommends that, as to transmissivities, large wellfields tapping the water table aquifer are most suitable in the southeast part of the County. In the remainder of the study area, where transmissivities are lower, "large supply [wellfield] development would still be viable although somewhat more expensive." Id. at page 22. In general, though, the Hole Montes Study is of little additional value in supplying data and analysis directly relevant to the Density Reduction/Groundwater Resource designation given the Property. The Reconnaissance Report, which was completed in January, 1982, covers all of Lee County. Prepared by the South Florida Water Management District (SFWMD), the Reconnaissance Report was intended to "provide a basis for the optimal development and management of the groundwater resources in the area." Lee County Exhibit 52.a, page 4. The introduction to the report notes that this comprehensive hydrogeologic assessment and reevaluation of Lee County's groundwater was necessitated by various factors, including the "complexity of the hydrogeologic systems" that make it more difficult to "identify zones of high production within the aquifers" and the lowering of water levels caused by groundwater withdrawals due to the "relatively low transmissivities in some of the aquifers." Id. The Reconnaissance Report explains that aquifers are "rocks which will yield water in sufficient quantity to be valuable as a source of supply" and confining zones are "low permeability rocks which lie above, between or below aquifers." Lee County Exhibit 52.1, page 41. The report identifies five major aquifers or producing zones in Lee County. From highest elevation to lowest, they are the surficial aquifer, Sandstone aquifer, mid-Hawthorn aquifer, lower Hawthorn/Tampa producing zone (part of the Floridan aquifer), and Suwannee aquifer. Id. Plate 2 of the Reconnaissance Report shows the thickness of the surficial aquifer throughout Lee County. Six of the square-mile sections lying in the northcentral part of the Property are between the 50' and 75' contours. The remaining ten partial or whole sections constituting the Property lie between the 25' and 50' contours. Areas above the 50' contour are relatively thick for Lee County, according to Plate 2, and are surpassed only by the southeast corner of the County where the surficial aquifer thickness rapidly increases from 50' to over 125'. The Reconnaissance Report cautions that the surficial aquifer is hydrogeologically complex. The producing zones and transmissivities may be difficult to measure and locally variable due to a number of technical factors. The Reconnaissance Report indicates that the elevation of the water table aquifer is subject to significant seasonal fluctuations. The main source of recharge is direct infiltration of precipitation. However, rainfall averages through Lee County vary by a surprisingly large amount. According to the report, average annual rainfall over northwest Lee County is less than 48 inches and over southwest Lee County is more than 68 inches. Lee County Exhibit 52.a, page 67. The Reconnaissance Report identifies three other important sources of recharge to the surficial aquifer. They are subsurface inflow from adjacent areas, inflow from surface water bodies, and upward leakage from underlying semi-confined aquifers. There are six sources of loss of water from the surficial aquifer. The sources of discharge are flow into streams, springs, and lakes; direct flow into the Gulf of Mexico or various bays and sounds; evapotranspiration; downward leakage into underlying semi-confined aquifers; subsurface outflow to adjacent areas; and pumping from wells. The Reconnaissance Report summarizes that the major constraints on the availability of groundwater are well yield and water quality. The two major factors affecting well yield are transmissivity and storage. Based on a "subjective" analysis of these factors, the report concludes, in Figure 55, that Lee County may be divided into three areas in terms of development potential for the surficial aquifer: good potential, moderate potential, and poor potential. The only area of good potential is the southeast corner of the County corresponding roughly to where the surficial aquifer thickens quickly. The areas of poor potential are the barrier islands, Pine Island, a strip of 1-2 miles inland from Charlotte Harbor north of the Caloosahatchee River, a wider strip along the coast south of the river, a band about four miles wide encompassing the river, and the Lehigh Acres area. The remainder of the County, including the Property, is shown as moderate potential. This area corresponds roughly with the three areas designated Density Reduction/Groundwater Resource. Addressing the area north and west of the Caloosahatchee River on both sides of US 41, which includes the Property, the Reconnaissance Report states: This assessment [of moderate potential for the development of groundwater from the surficial aquifer] is based on lower transmissivity values (20,000 to 40,000 gpd/ft.) which are probably related to the fact that the aquifer is thinner in this area (25 feet to 40 feet). However, these areas also lack thick, highly permeable beds such as those found in [the southeast corner of the County]. However, water quality is generally acceptable in this area and moderate supplies could be developed with proper well construction and wellfield design. Wells finished in [the area of moderate potential] would probably yield less water than wells in [the southeast corner of the County]. Lee County Exhibit 52.a, page 161. The Reconnaissance Report recommends, among other things, the collection of additional data and the implementation of land use planning to protect major regional recharge areas of the surficial aquifer. Lee County Exhibit 52.a, pages 181-82. The Camp Dresser Report, which was prepared in November, 1987, addressed existing wellfields and was intended to assist the County in the preparation of a wellfield protection ordinance. The Camp Dresser Report contains no data or analysis particularly pertinent to the subject case, except that it found, after reviewing the available data, that the thickness of the water table aquifer at Well L-653 was 60 feet. The most recent and relevant of the Four Studies is the Montgomery Study, which was presented to Lee County on October 5, 1988. The study area includes all of Lee County as well as hydrogeologically relevant parts of surrounding areas. The study analyzes the water table, Lower Tamiami (which is part of the surficial aquifer system, but is located south of the Caloosahatchee River), Sandstone (which is part of the intermediate aquifer system), Mid- Hawthorn (which is part of the intermediate aquifer system), and Lower Hawthorn aquifers. The Montgomery Study stipulates four criteria as preconditions for the suitability of the water table aquifer for wellfield development. The factors are: aquifer thickness of at least 30 feet, transmissivity of at least 100,000 gallons per day per foot, chloride levels of no more than 250 mg/l, and consideration of existing wellfields and their proximity to any proposed wellfield. Petitioners' Exhibit 144.a, Table 4-1, page 4-2. For thickness, transmissivity, and storage, as well as other factors, the Montgomery Study collected substantial data and then statistically extrapolated results for locations for which direct data were not available. This process is called kriging. Defining transmissivity as "a measure of the ability of an aquifer to transmit water through the aquifer material to the well," the Montgomery Study explains that transmissivity is a product of the "hydraulic conductivity of an aquifer multiplied by the aquifer thickness." Petitioners' Exhibit 144.a, pages 4- 1 and 4-3. Given equal withdrawal rates and storage values, the greater the transmissivity value, the lesser the drawdowns. Addressing aquifer thickness, the Montgomery Study states: From a technical standpoint a wellfield can be developed in a water table aquifer if the transmissivity is high enough regardless of the thickness of the aquifer. However, from a wellfield protection standpoint, a minimum thickness of aquifer is necessary to prevent or retard a potential discharge of contaminants from immediate intake at the wellhead. . . . Valid arguments can probably be presented for a criterion involving either a greater or smaller aquifer thickness. To provide for a minimum of wellfield protection we have arbitrarily selected a thickness of 30 feet as a minimum thickness in this trade-off. This thickness has also been selected with the understanding that implementation in the future of a wellfield protection ordinance by Lee County will be necessary to properly protect a wellfield at this shallow depth. Petitioners' Exhibit 144.a, page 4-3. The Montgomery Study warns that wetland impacts from wellfields in the water table aquifer must be evaluated on a case-by-case basis. The study finds that water levels are declining in the water table aquifer, despite the readily available surface water recharge. About 56% of the wells in the water table aquifer show declining water levels. But the problem of declining water levels is even worse in the intermediate aquifers and almost as bad in the Lower Hawthorn aquifer. Petitioners Exhibit 144.a, page 4-34. Cautioning that "[q]uantification of absolute amounts of ground water which are available for use is very difficult," the Montgomery Study calculates "on a gross scale" the amount of water that may be available for withdrawal from each of the studied aquifers. Petitioners' Exhibit 144.a, page 4-28. To permit closer evaluation of potential drawdown issues, the analysis of the water table aquifer considers total storage, storage in the top two feet of saturated aquifer, and storage in the top foot of saturated aquifer. Id. at page 4-30. The Montgomery Study concludes: The Water Table aquifer in conjunction with the Lower Tamiami aquifer and the Lower Hawthorn aquifer are the major potential aquifer sources of water supply to Lee County. . . . [T]he Water Table and Lower Hawthorn aquifers have the highest storage values of all the aquifers. Water availability from the Water Table aquifer is not precisely known. However, based on the amount of storage available from even a one or two foot thickness of the Water Table aquifer, a significant amount of water is available. Extraordinary measures for withdrawal may be necessary, including: (1) using large well spacings to reduce drawdowns near wetlands, (2) developing smaller wellfields rather than large supplies, and (3) mitigation of impacts on wetlands such as by discharge of water into wetlands to eliminate drawdown impacts or development of replacement wetlands by use of Caloosahatchee River water. Development of the pending three dimensional ground water flow model by the SFWMD will shed additional light and perhaps provide a more quantitative estimate of water availability from the Water Table aquifer. Petitioners' Exhibit 144.a, page 4-45. The Montgomery Study finds that the entire County is a recharge area for the water table aquifer. Petitioners' Exhibit 144.a, Table 4-43, page 4- 118. The study notes that natural groundwater aquifer recharge areas provide numerous benefits, including the capture and filtration of water for vertical flow, the supplying of an energy gradient that will make groundwater flow into an aquifer, the supplying of potentiometric head and groundwater flow to retard the inland movement of salt water, the supplying of better-quality water requiring less treatment in connection with wellfield development, and the growth and development of wetlands. As to the wetland function of natural recharge areas, the Montgomery Study continues: In Lee County, wetlands abound over the recharge area for the Water Table aquifer. Wetlands have formed over the recharge area because water levels are above or close to the surface of the Water Table aquifer most of the year. The indication is that wetlands will form over a recharge area when the aquifer tends to be overflowing or close to fully recharged. Wetlands have intrinsic value as part of the natural resources of Lee County. Wetlands also act as buffers to the water level and level of recharge within the aquifer. Wetlands accept both surface water runoff and discharge from the Water Table aquifer during the wet seasons when water levels are high. During the dry season, when water levels are low, the wetlands in turn provide recharge to the aquifer. Petitioners' Exhibit 144.a, page 4-126. Montgomery Study Plate 83 shows where in the County existing and proposed wellfields are located with regard to the water table aquifer. Most of Lee County bears no marking, indicating that it is unsuitable for wellfield development in the water table aquifer. However, Plate 83 also bears three other designations. One area in south Lee County is marked: "Areas which appear hydrologically suitable for well development but will require wetland mitigation." Most of the portion of this area in Lee County adjoins vast areas of wetlands that are marked: "Wetlands--Not suitable for well development." Smaller areas in north Lee County are marked: "Areas where well development may be possible--will require additional investigation and wetland mitigation." These areas include almost the entire extent of the Property, as well as two other areas of similar size along the north Lee County border. Much of the northcentral part of the Property also bears a Wetland designation. Lee County used other sources of data and analysis concerning the suitability of the Density Reduction/Groundwater Resource designation for the Property. For instance, Map I-12 of the Southwest Florida Regional Plan's data and analysis shows Gator Slough as one of the 15-20 major sloughs and swamps in the entire six-County region. Generally, the findings of these other sources conform to the findings contained in the Four Studies. Each of the Four Studies was prepared by qualified persons with appropriate areas of expertise, including hydrogeology. The Four Studies meet all relevant professional standards, as do the methodologies employed in connection with investigations conducted as part of the Four Studies. The Four Studies are not flawless. Originally, the Montgomery Study was to include extensive field testing, which was not performed for financial reasons. Other shortcomings were identified by Petitioners' expert, Thomas M. Missimer, who is the founder and principal hydrogeologist of the firm of Missimer and Associates, Inc. Mr. Missimer based his testimony not only on his considerable technical expertise, but also on an unusually extensive experience of the hydrogeology of the area. Mr. Missimer's work as far back as 1976 appears as a source of the Four Studies. Most significantly, Mr. Missimer testified that the aquifer thickness data for well L-653 is incorrectly reported as 60 feet when it in fact was only 20 feet. The Reconnaissance Report, Camp Dresser Report, and Montgomery Study all rely on the 60-foot value. Given the absence of data points in the area of well L-653 and its location on the northern edge of the Property, the accuracy of the aquifer thickness value significantly affects the kriged aquifer thickness value extrapolated for the water table aquifer under the Property. Based on Mr. Missimer's testimony, the evidence is, to the exclusion of fair debate, that the correct value for the aquifer thickness of well L-653 is 20 feet and the extrapolated value for the thickness of the water table aquifer underneath the Property is considerably less than as stated in the Montgomery Study. According to Mr. Missimer's testimony, which is credited on this point, the appropriate dry-season water table aquifer thickness for the Property ranges from 18-23 feet. More accurate data, rather than extrapolations, for the water table aquifer under the Property are not available partly due to Petitioners' refusal in 1984 to allow a County official to conduct field tests on the Property in order to determine the characteristics of the water table aquifer. The only field testing done in connection with the subject case was performed by Mr. Missimer, but was not available to the County until after it had adopted the Plan Amendments and thus was excluded. In any event, the evidence does not establish to the exclusion of fair debate that the criteria of 30-foot aquifer thickness and transmissivity of at least 100,000 gallons per day per foot used in the Montgomery Study represent minimum requirements for wellfield development. In other words, the evidence fails to prove by the requisite standard that an area designated Density Reduction/Groundwater Resource for potential water table aquifer wellfield development must meet the Montgomery Study criteria or else the designation lacks support from the data and analysis. Mr. Missimer also informed the County Commission during its March 27, 1990, public hearing on the Plan Amendments that the Montgomery Study omitted test data from five test wells located in northwest Lee County near the Property. It is unnecessary to determine whether these data met the screening requirements of the Montgomery Study and earlier studies or reports that also omitted these data. Even with the data from these five test wells, according to Mr. Missimer, the water table aquifer transmissivity on the Property would be extrapolated to 10,000-20,000 gallons per day per foot, except for a small area near US 41 with a maximum transmissivity of 25,000 gallons per day per foot. The transmissivity values offered by Mr. Missimer are at the low end of the 20,000-40,000 gallons per day per foot values referenced in the Reconnaissance Report. Although the aquifer thickness of 18-23 feet is just below the 25-40 foot thickness stipulated in the Reconnaissance Report, the Reconnaissance Report, like the Montgomery Study, does not establish minimum standards from which a local government may not deviate without repudiating the prevailing data and analysis. Petitioners have failed to prove to the exclusion of fair debate their key assertion--i.e., that the Plan Amendments are not based on relevant and appropriate data. Relative to other parts of Lee County, the three areas designated Density Reduction/Groundwater Recharge are the most suitable for the development of wellfields. The permitted low-density and -intensity land uses are entirely consistent with the protection of the potential of the area for wellfield development, while still allowing affected landowners reasonable use of their property. Although the entire County provides recharge to the water table aquifer, areas relatively undeveloped will allow more rainfall to enter the water table aquifer at the point where the rainfall falls rather than be lost to evapotranspiration or drainage improvements that accompany the installation of impervious surface. Petitioners are trying to impose a higher degree of precision on the data and analysis than the data and analysis permit. Projections of aquifer thickness and transmissivity are not traffic counts. Setting "minimum" standards for these values, as an indication of an area's potential for wellfield development, is not as exact a process as calculating the volume- to- capacity ratios defining different levels of service on road segments. The "minimum" standards on which Petitioners heavily rely are necessarily arbitrary to a certain extent, as conceded by the Montgomery Study. Equally important, the "minimum" standards for aquifer thickness and transmissivity are directly related to each other (e.g., a higher transmissivity may allow the use of a thinner aquifer). And the aquifer thickness is inversely related to the extent of land use restrictions imposed on areas in the cones of influence of water wells (i.e., stricter land use restrictions may allow the use of a thinner aquifer). The Data and Analysis accompanying the Plan Amendments adequately respond to the underlying data and analysis, including the Four Studies. The salient facts are fairly simple. To meet increasing demand, Lee County must tap a wider range of its potable water resources. Lee County will very likely be forced to withdraw increasing amounts of water from the water table aquifer for the production of potable water. Despite low values for aquifer thickness and transmissivity (relative to ideal conditions), the Property has reasonable potential, under the circumstances, for the development of the water table aquifer, most likely through a decentralized system of smaller wells in order to protect wetlands and, by so doing, the water table aquifer itself. And it is vital that Lee County carefully regulate the densities and intensities permitted on the Property in order to protect the quality and quantity of water in the water table aquifer. The data and analysis, which are accurately summarized in the Data and Analysis accompanying the Plan Amendments, support the designation of the Property as Density Reduction/Groundwater Resource, as well as Resource Protection Areas and Transition Zones. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the data supporting the Plan Amendments were not collected and applied in a professionally acceptable manner, that the Plan Amendments are not based on the best available data, and that special studies forming part of the data and analysis did not use appropriate, clearly described methodologies or did not meet professionally accepted standards. More data and more complex models can always yield more reliable results. But the evidence in this case establishes the validity of the data on which the County relied and the ensuing analysis in terms of the establishment of the Density Reduction/Groundwater Resource designation on the Property. The shortcomings of the Montgomery Study in particular were not material and, in any event, were far short of what Petitioners would have to show in order to determine that the study did not use appropriate methodologies or meet professionally acceptable standards or even that the Montgomery Study did not represent the best available existing data. Likewise, Lee County's use of the Four Studies was also appropriate. To the extent that the sufficiency of the data and analysis submitted to DCA even provides a basis for determining that a plan or plan amendment is not in compliance, Petitioners have failed to prove to the exclusion of fair debate that DCA did not have sufficient data and analysis to determine whether the Plan Amendments were in compliance. The relevant Data and Analysis accompanying the Plan Amendments were derived from Dr. Gomberg's summation of the data and analysis, especially the Four Studies. The Data and Analysis were a fair, suitably detailed representation of the relevant findings and conclusions in the Four Studies. As such, the Data and Analysis gave DCA a reasonable opportunity to conduct a review of the materials and reach an informed compliance determination concerning the Plan Amendments or, where appropriate, the Amended Plan. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that Lee County did not have available for public inspection during the adoption proceedings copies of all data and analysis or that Lee County did not comply with all requirements of notice and public participation. Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan lacks a policy addressing implementation activities for the protection of environmentally sensitive lands. In the context of the present case and the relief sought by Petitioners, the above-cited provisions of the Amended Plan adequately address the protection of environmentally sensitive lands. The data and analysis make it clear that any significant drawdown of adjacent wetlands will deplete the water table aquifer at the most critical time--during the winter dry months when seasonal demand is high. The provisions of the Amended Plan adequately address the threat to adjacent wetlands posed by the development of wellfields in the water table aquifer. Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments cause the FLUM not to reflect the operative provisions of the Amended Plan. The FLUM clearly reflects that the Property is designated exclusively Density Reduction/Groundwater Resource and Resource Protection Areas and Transition Zones. Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan is internally inconsistent. Limiting residential densities to 1:10, FLUE Policy 1.4.3 also indicates, among other things, that "[l]and uses in [the Density Reduction/Groundwater Resource] areas must be compatible with maintaining surface and groundwater levels at their historic levels." Nothing in the policy implies that this requirement is suspended if and when the area is converted to potable water production. As a practical matter, the County cannot ignore the vital interrelationship between the water table aquifer and nearby wetlands without risking the destruction of the water table aquifer as a source of potable water. Acknowledging the interrelationship between the water table aquifer and nearby wetlands, Conservation Element Objective 84.3 requires that land development "protect the values and functions of wetlands, and, to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands." Conservation Element Policy 84.3.3 discourages access roads and land development in Resource Protection Areas and Transition Zones. These provisions are not frustrated by a designation of surrounding areas at a density of 1:10 with the possibility of wellfield development. Again, the long-term viability of any wellfield on the Property is dependent upon the preservation of prevailing wetland water elevations, as well as the maintenance of adequate natural recharge areas. Community Facilities Element Objective 41.2 is for County staff to review technical data concerning groundwater recharge areas in Lee County and propose modifications to the FLUM as necessary to protect or improve areas of groundwater recharge. Community Facilities Element Policy 41.2.1 requires the County, based on the best available technical data, to designate areas for future potable water supply and to preclude incompatible land uses. Community Facilities Element Policy 41.2.2 merely identifies the new Density Reduction/Groundwater Resource designation, which shall be applied to "protect the county's groundwater resources and principal recharge areas." As discussed above, nothing in FLUE Policy 1.4.3 or the designation of the Property as Density Reduction/Groundwater Resource conflicts with the provisions of the Amended Plan set forth in this paragraph. The water table aquifer under the Property is the site of groundwater resources and the available recharge is relatively good given the undisturbed state of the land. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments, Amended Plan, or adoption process is inconsistent with Regional Plan Policies 8.B.3, 10.A.2, 10.A.3, 16.A.3.a, 16.A.3.c, 16.B.1.a, 25.C.2, 25.C.3, and 25.C.4. The cited provisions from the Regional Plan involve protecting various natural resources, such as wetlands and groundwater, planning for a mixture of land uses, and providing effective public participation in the planning process. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the State comprehensive plan provisions, which involve the protection of wetlands and protection and restoration of wetland systems.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order dismissing the Amended Petition of Petitioners. ENTERED on December 16, 1992, 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 December 16, 1992.
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
Findings Of Fact Respondent is an individual who owns or operates a water system that provides piped water for human consumption to the Hardy House Diner in Washington county, Florida. The water system serves at least 35 persons daily at least 60 days out of the year. Respondent has owned or operated the water system since at least October 28, 1976. Respondent does not continually apply effective disinfectant measure to the water distributed to the customer of the Hardy House Diner, nor is Respondent's water system equipped with any disinfection equipment. Respondent's water system has a daily flow greater than 2,500 gallons per day, but less than 100,000 gallons per day. The operation, maintenance and supervision of the water system is not performed by a person who has passed an examination that entitles such a person to be a certified operator. Neither the Department nor the Washington County, Florida Health Department has received from Respondent reports which contained information about the operation and maintenance of the Respondent's water system. The water system's lack of disinfectant equipment and the absence of a certified operator for the system and Respondent's failure to file operation reports have existed continuously since "October, 1976. Representatives of the Department conducted a public water systems inspection of Respondent's water system on October 26, 1976. At that time, the system was found to be unsatisfactory in several categories, including general plant condition, existence of safety hazards, lack of chlorination, failure to submit regular reports, failure to submit monthly bacteriological samples, failure to perform chemical analysis of drinking water and failure to install a raw water tap between the pump and point of chlorination. A second inspection was performed on April 7, 1977, in which it was determined that Respondent still had not installed a chlorinations system, had failed to submit monthly operating reports had failed to employ a certified operator, had failed to submit monthly bacteriological samples, and had failed to perform annual chemical analysis of water disposed from the system. On December 7, 1977, a representative of the Department whose job responsibilities included inspecting public water systems was refused permission to enter and inspect the water system serving the Hardy house diner and its customer. The Department representative was refused entry after he had identified himself and made his purpose known to Respondent. The Department has incurred expenses of $117.58, including personnel time and travel expense, in the course of investigating Respondent's alleged violations.
Recommendation RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, finding the Respondent to be in violation of the above-referenced statutes and regulations, and requiring Respondent to pay the state its reasonable costs and expenses, in the amount of $117.58 incurred in investigating and prosecuting this administrative proceeding. RECOMMENDED this 26th day of February, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 2230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1979. COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Eugene Hardy 1005 Highway 90 West Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 78-1209 DER Case No. WC-10-78 EUGENE HARDY, Respondent. /
The Issue The issues are: (1.) Whether Respondents' request for variance from requirements of Rule Chapter 10D-6, Florida Administrative Code, should be granted. (2.) Whether Respondents are guilty of violation of certain provisions of Chapter 381 and Chapter 403, Florida Statutes, and Rule Chapter 10D-6, Rule Chapter 17-550, and Rule Chapter 17-555, Florida Administrative Code, regulating the operation of onsite sewage disposal systems.
Findings Of Fact Respondent V.M.P. Corporation (VMP) operates a lounge known as Stud's Pub in Jacksonville, Florida. Licensed for 75 seats, the lounge actually contains 50-55 seats and employs five people full time. Additionally, 10-15 independent entrepreneurs known as dancers may be present at times. The dancers are not employees of Respondents. Less than 25 people, other than patrons, are present at the facility at any time. Respondent Vincent M. Paul (Paul) owns the facility and the corporation. The lounge is on lots that were platted prior to 1972. Petitioner is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Petitioner pursuant to provisions of Section 381.0065(8)(a), Florida Statutes (1991). The lounge is serviced by a septic tank with a drainfield which is covered by an asphalt parking lot. The portion of the parking lot over the drainfield is bounded to the west by a dirt city street, to the north by other pervious surfaces, to the east by the lounge and to the south by the remainder of the asphalt parking lot. A sign on the premises which advertises the business is protected from automobile traffic by concrete barriers. The septic tank system and drainfield were installed prior to 1972 by a previous owner. Respondent Paul retrofitted the septic tank system after 1972. Respondent Paul was responsible for paving over the drainfield after he purchased the property. Petitioner's representatives inspected the lounge, determined the drainfield to be covered by the asphalt parking lot and requested Respondents to remove the asphalt covering. Respondents requested a variance pursuant to Rule 10D Administrative Code, for the asphalt covered drainfield and other deficiencies of the onsite sewage disposal system. Petitioner's review board recommended denial of the request on the basis that the variance would not constitute a "minor deviation" from rule requirements. Although the term is not defined by Petitioner's rule, Petitioner's usage of this term was the result of the consideration by Petitioner's review board of the application for variance within the context of Section 385.0065(8)(a), Florida Statutes, which authorizes Petitioner to grant variances only where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated. Respondent has no record of failure of the septic tank or drainfield. Water samples from the onsite potable water well filed with Petitioner tested below detectable limits for nitrates and coliforms, the only parameters Petitioner is required to analyze. Respondents' records of water flow or usage from the well into the lounge show daily flow rates of between 320 and 580 gallons, with an average rate of between 450 and 480 gallons. Respondent Paul is responsible for the installation of an unpermitted chlorinator on the water supply system which provided actual flow information. The only onsite water well has no grout sealant. It is the only well of which the parties are aware that lies within 100 feet of the septic system. The potable water well is located approximately 42 feet from the edge of the covered drainfield. The well head does not extend above line surface and there is no concrete pad around the wellhead. The exact depth of the well is unknown, although the well is located upgradient of the drainfield and a nearby junkyard. Denial of the variance would require that Respondents uncover the drainfield since there is no practically available offsite sewage system currently available. Soil in the area of the drainfield is classified as well- draining sand. Due to the impervious surface covering the drainfield, Petitioner's representative was unable, during his inspection, to discern any symptoms of drainfield failure in the form of "blow field should be totally unobstructed to allow aerobic processes to take place in the drainfield which will permit the breakdown of contaminants. A portion of Respondents' 1200 gallon septic tank is located partially under and immediately adjacent to Respondents' facility. A dousing tank which retains liquid waste and operates as part of the septic system is also totally covered by the asphalt pavement. Although there has been no detectable failure of the system, every eight or nine months Respondents have the septic tank and dousing tank pumped out. The tanks never get full.
Recommendation Based on the foregoing, it is hereby Recommended that a final order be entered by Petitioner denying the variance requested by Respondent with exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent property, and, Further Recommended that such final order also assess Respondent Paul an administrative penalty of $500 for each of the four violations contained in the Administrative Complaint which were proven in this proceeding for a total of $2000, and a continuing assessment of $500 per day for each violation for a total of up to $2000 per day after first allowing Respondents a 60 day period within which to correct all four violations. DONE AND ENTERED this 3rd day of May, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 3rd day of May, 1993.
The Issue There are two issues in these cases: (1) whether Tampa Bay Desal, LLC ("TBD") provided reasonable assurances that its permit application to discharge wastewater from a proposed seawater desalination plant, National Pollutant Discharge Elimination System ("NPDES") Permit Application No. FL0186813- 001-IWIS, meets all applicable state permitting standards for industrial wastewater facilities; and (2) whether Tampa Electric Company, Inc. (TEC) provided reasonable assurances that its proposed modification to an existing industrial wastewater facility permit, NPDES Permit Modification No. FL0000817-003-IWIS, meets all applicable state permitting standards.
Findings Of Fact Parties other than SOBAC Poseidon Resources, LLC wholly owns TBD as one of Poseidon Resources' subsidiaries. Poseidon Resources formed TBD, the successor to S&W Water, LLC, as a special purpose project company to properly staff and finance the desalination project. TBW entered into a 30-year purchase agreement with TBD (then known as S & W Water, LLC) in 1999 to build, own and operate the desalination facility. Poseidon Resources operates as a privately-held company and all stockholders are major corporations. Poseidon Resources opened for business in 1995 and has over $300 million in water processing assets under management. DEP is an agency of the State of Florida. The United States Environmental Protection Agency ("EPA") delegated its NPDES permitting program to the State of Florida and is run by DEP. TEC is an investor-owned electric utility serving Hillsborough, Polk, Pasco, and Pinellas Counties. TEC owns and operates the Big Bend generating station, an electric plant consisting of four coal-fired steam units having a combined capacity of approximately 1800 megawatts. SWFWMD is a water management district in the State of Florida. SWFWMD reviews and acts upon water use permit applications and protects and manages the water and water- related resources within its boundaries. TBW and all of its Member Governments are within the geographical and legal jurisdiction of SWFWMD. Pasco County is a political subdivision of the State of Florida, a member government of TBW, and is located within the jurisdiction of SWFWMD. Pasco County is a major source of the groundwater used by TBW. TBW is a regional public water supply authority. TBW is the sole and exclusive wholesale supplier of potable water for all its member governments of TBW, which are Hillsborough County, Pasco County, Pinellas County, the City of New Port Richey, the City of St. Petersburg, and the City of Tampa. TBW serves approximately 2 million customers. SOBAC SOBAC was incorporated as a Florida not-for-profit corporation in February 2000. The stated mission of SOBAC is to protect the environmental quality of the bays, canals, and waterways of the Tampa Bay area, and to ensure drinking water for SOBAC members in the Tampa Bay area. SOBAC was formed by a group of people residing primarily in the area of Apollo Beach. Apollo Beach is a waterfront residential community that was created by dredge and fill of wetlands, estuary, and bay bottom bordering the "Big Bend" area of Tampa Bay, where the community terminates in a "hammerhead" of fill over what was once a seagrass bed. Across the North Apollo Beach "Embayment," formed by the "hammerhead," is the discharge canal of TEC's Big Bend power plant. A corrugated metal barrier partially separates the embayment from the discharge canal. This discharge canal also will receive TBD's discharge after re-mixing with TEC's discharge. SOBAC initially was formed out of concern for the environment in the Big Bend area of Tampa Bay. However, there is no requirement that SOBAC members live in the Apollo Beach area, or even in the vicinity of Tampa Bay, and SOBAC's geographic area of concern has broadened somewhat beyond the Apollo Beach area. In order to become a member of SOBAC, one need only sign a card. Prospective members are asked to donate $5 on signing up. Most members donate $5 or more. However, the donation is not mandatory. There is no requirement that members attend any meetings, or participate in any SOBAC activities. Section 3.1 of SOBAC's Constitution and Corporate By-Laws makes "active" membership contingent on payment of "the prescribed [annual] dues." Section 3.2 of SOBAC's Constitution and Corporate By- Laws requires SOBAC to establish annual dues, but no annual dues have been paid because no annual dues structure has ever been established. As a result, no annual dues have been "prescribed," and "active" membership does not require payment of annual dues. SOBAC claims to have approximately 1,000 members. These include all those who have ever become members. Approximately 700 live in the Appollo Beach area; approximately 50-75 of these members form the "core" of active members. Approximately 50-100 members live outside the Tampa Bay area; some of these outsiders probably are among the approximately 100 who are members by virtue of SOBAC's reciprocity agreement with another association called "Friends of the River." SOBAC has never surveyed its membership to determine how its members actually use Tampa Bay. However, the evidence was sufficient to prove that a substantial number of its members, especially among those who reside in the Apollo Beach area, enjoy use of the waters and wetlands of the Big Bend area for recreational activities such as boating and fishing. For that reason, if the activities to be permitted by DEP in these proceedings were to cause environmental damage, a substantial number of SOBAC's members would be affected substantially and more than most residents of distant reaches of the Tampa Bay area. Background of Desalination Project In 1998, the predecessor agency to TBW (the West Coast Regional Water Supply Authority), the six Member Governments and SWFWMD entered into an agreement specifically addressing impacts to natural systems through the development of new, non- groundwater sources, and the reduction of permitted groundwater withdrawal capacity from TBW's eleven existing wellfields from the then permitted capacity of 192 million gallons per day (mgd) to 121 mgd by December 31, 2002 (the "Partnership Agreement"). Pursuant to the Partnership Agreement, the existing water use permits for TBW's 11 specified wellfields were consolidated into a single permit under which TBW is the sole permittee. Prior to execution of the Partnership Agreement, the existing permits for these 11 wellfields allowed for cumulative withdrawals totaling approximately 192 mgd. Upon execution of the Partnership Agreement, the consolidated permit immediately reduced allowed withdrawals to no more than 158 mgd and required that wellfield pumping from the 11 wellfields be further reduced to no more than 121 mgd by December 31, 2002, and then to no more than 90 mgd by December 31, 2007. These withdrawal reductions are necessary to reduce the adverse environmental impacts caused by excessive withdrawals from the 11 wellfields, the majority of which are located in Pasco County. In order to replace the reduction of groundwater withdrawals, TBW adopted a Master Water Plan that provides for the development of specified new, alternative sources of potable water. The seawater desalination facility ("Desal Facility") is one of the cornerstone components of the Master Water Plan. This Facility will furnish 25 mgd of new water resources for the Tampa Bay area and must be in service by December 31, 2002, in order to meet the potable water needs of the residents of the Tampa Bay area. In exchange for the groundwater withdrawal reductions, SWFWMD agreed to contribute up to $183 million towards the development of new water sources that are diverse, reliable and cost-effective. SWFWMD has agreed to co-fund up to 90 percent of the capital cost of the Desal Facility. To comply with the terms and conditions of water use permits it has received from SWFWMD for other water withdrawals in the region, TBW must increase the water sources from which it withdraws water for distribution to its Member Governments in a timely manner. The Desal Facility is the essential means by which these permitting requirements can be met. For the past two years, the Tampa Bay area has been experiencing historic low rainfall and drought conditions. The Desal Facility is supported not only by TBW and its Member Governments, but also by SWFWMD since it is a drought-proof source of supply which has the greatest ability of any new water supply source to allow TBW to meet its members' potable water supply needs while also reducing pumpage from the existing 11 wellfields. In addition to its being a drought-proof source of potable water supply, the Facility will also provide diversity and reliability for TBW's sources of supply, and is a source that is easily expandable to provide additional potable supply that may be necessary in the future. Prior to deciding to proceed with a desalination project, TBW conducted four separate studies to look at the potential individual and cumulative impacts of a desalination facility on Tampa Bay and the surrounding areas, and in particular to evaluate the changes in baywide salinity due to the desalination discharge alone and in combination with the river withdrawals occasioned by other projects. Commencing in 1997, TBW conducted a procurement process that culminated in the award in July 1999 of a contract to S & W Water, LLC, now known as Tampa Bay Desal, LLC, to design, build, own, operate, and eventually transfer to TBW a seawater desalination plant to provide potable water to Hillsborough, Pinellas, and Pasco Counties and to the Cities of Tampa and St. Petersburg for 30 years. TBD's Desal Facility is co-located with the Big Bend Power Station owned and operated by TEC on the northeast side of Hillsborough Bay, in Hillsborough County, Florida. By discharging the concentrate from the Desal Facility to the power plant cooling water prior to its discharge to the power plant discharge canal, environmental impacts from the concentrate are minimized, and disturbance of the discharge canal is avoided. The costs avoided by utilizing the existing intake and outflow from the TEC power plant are reflected in the lower cost of the water to Tampa Bay Water, and ultimately its Member Governments. TBW is contractually bound to TBD to purchase all of the potable water that is produced by the Desal Facility for distribution to its Member Governments and to purchase the entire Facility in the future. With the exception of the NPDES permit at issue, TBD has obtained all of the over 20 other permits which are required for the construction and operation of the desalination facility. TBD has already invested approximately $20 million in this project. The total estimated capital cost of the desalination facility is $110 million. TBD has obtained financing of $42 million and expects to acquire permanent financing in the month of October 2001. SWFWMD agreed to subsidize up to 90 percent of the capital cost of the desalination facility payable to TBW over the term of agreement with TBD. TBD is contractually bound to TBW to complete and fully operate the desalination facility by December 2002. TBD Desalination Process Overview of Process In the instant case, desalination is performed through reverse osmosis ("RO"), a mechanical process wherein pretreated water under very high pressure is pressed against a very fine membrane such that only pure water can pass through it. The vast majority of salt molecules and other substance are eliminated from the water. The RO process is not heat or chemical driven. No additional heat load is being added as a result of the desalination discharge, and the desalination plant will actually result in a reduced heat load to the bay. The desalination facility will withdraw approximately 44.5 mgd of raw water from Units 3 and 4 of TEC's Big Bend cooling water system, produce approximately 25 mgd of product water for transmission to the regional water supply system, and discharge approximately 19.5 mgd of clarified backwash and concentrate water equally into each of the power plant cooling water tunnels for dilution and release into the discharge canal. During abnormal power plant operations including times when Units 3 or 4 are not in operation and during the summer months when the normal supply water intake temperature exceeds the operating temperature range of the RO membranes, a portion of the source water will be withdrawn from an auxiliary supply water system. The auxiliary supply water system consists of a supply pump and pipeline that withdraws water from a location downstream of the fine-mesh screens for Units 3 and 4. The total combined bay withdrawal flow for the power plant and the desalination facility cannot exceed 1.40 billion gallons per day ("bgd"). This limitation ensures that entrainment does not exceed the levels previously permitted for the site, and a new entrainment study pursuant to Section 316(b) of the Clean Water Act is not required. Pretreatment Process The desalination intake water is pretreated in a two- stage gravity filtration process with chemical additives. During pretreatment, ferric sulfates will be added to the desalination intake water to coagulate and capture suspended solids, organic material, and metals that exist in the raw water supply. In this first stage of the pretreatment process, the intake water runs through an aerated course sand filter. Aeration enhances the coagulative process and assists in the capture of organics, suspended solids, and metals. Aeration also occurs in stage two, which uses a fine sand filter pretreatment process. The backwash water from stage two recirculates to the stage one treatment process. The pretreated waters exits through a five micron cartridge filtration prior to entering the RO process. The aerated pretreatment filter backwash water from the pretreatment stage one pretreatment will be sent to a discharge sump for initial settling and then to a clarifier and filter press to remove excess water. Approximately 14 wet tons a day which includes organics, suspended solids, and metals that are removed through the coagulative process and captured from the gravity filters are removed off-site to a landfill. The desal concentrate and clarified backwash water will be combined in a discharge sump or wet well prior to entering into a discharge line manifolded to equally distribute the concentrate discharge into all of the available cooling water outflow tunnels or conduits of the power plant discharge. Reverse Osmosis Membrane Treatment The RO desalination process consists of a two-stage pass of the pretreated water through the reverse osmosis membranes. The RO pumps will force the water through the RO membranes at pressures ranging from 600 to 1000 pounds per square inch (psi). As a result of the RO process, approximately 25 mgd of purified water, also known as permeate, will be produced for delivery to TBW. TBD anticipates cleaning its membranes twice per year, perhaps less, due to the high level of pretreatment. Periodic cleaning removes silt and scale from the membrane surface. Dilute solutions of citric acid, sodium hydroxide, sulfuric acid, sodium tripolyphosphate, or sodium dodecyclbenzene compromise the constituents of various cleaning solutions, with the actual cleaning solution used dependent upon the actual performance of the system once it is placed in operation. Once the cleaning cycle is complete, the spent cleaning solution will be purged from the feed tank, membrane vessels, and piping and diverted into a scavenger tank for off- site disposal. Clean product water (permeate) will be fed to the feed tank and pumped into the RO membrane vessels. This process will continue until the pH of the purge water meets the Class III marine water quality criteria. The membranes will be rinsed with brine concentrate and permeate, and the rinse water will be directed to the wet well for discharge, with the concentrate into the TEC cooling water stream. TBD determined the chemical characterization of the membrane cleaning solution discharge. Cleaning solutions are not discharged in detectable concentrations. As further assurance, the permit requires toxicity testing immediately after membrane cleaning. Dilution of Discharge Water Co-locating the desalination facility with TEC's Big Bend power station allows the desalination concentrate to be diluted with TEC's cooling water prior to discharge into Tampa Bay. The point of injection of the desalination discharge will be located approximately 72 feet upstream of the point of discharge to the discharge canal to ensure complete mixing of the desalination concentrate with TEC's cooling water. This provides reasonable assurance that the desalination discharge will be completely mixed within the cooling water conduits. If all four TEC units are in operation and TBD is producing 25 mgd of finished water, the approximate dilution ratio of the desalination concentrate with TEC cooling water is 70:1. Historical TEC data indicates that a dilution ration of greater than 20:1 will occur more than 99.6 percent of the time, and a dilution ration of greater than 28:1 will occur more than 95 percent of the time. The dilution limitations in the proposed permit are more stringent than those required in Rule 62-302.530(18). The permitted dilution ratio complies with Rule 62- 660.400(2)(d) because it takes into account the nature, volume, and frequency of the proposed discharge, including any possible synergistic effects with other pollutants which may be present in the receiving water body. Comparisons of the Antigua, Key West, and Cyprus facilities are not applicable because those desalination facilities lack the initial dilution that will exist at TEC's Big Bend site. The proposed permit requires a 20:1 minimum dilution ratio at any given time, which may occur for no more than 384 hours per calendar year, and with the further limitation that the discharge at the 20:1 minimum dilution ratio shall not exceed 384 hours in any given 60-day period. At all other times, a minimum dilution ratio of 28:1 must be maintained. To ensure proper dilution and system operation, computer instrumentation in the desal facility will interface with TEC to continuously monitor the operations of TEC's four cooling tower condenser units. If any of the pumps shut down, an alarm will sound at the desalination facility and the computer system will automatically shut down the concentrate discharge to that specific condenser unit discharge tunnel. Further, the desalination plant will employ approximately 12 employees, with a minimum of two employees on duty at all times. TEC Permit Modification Big Bend power station has four coal-fired steam electric generating units. The power station is cooled by water that is taken in from Tampa Bay through two intake structures which are located along TEC's intake canal. One intake structure feeds cooling water to electrical power units 1 and 2 and the other feeds units 3 and 4. After flowing through the condensers, the cooling flows are combined into four separate discharge tunnels which outfall into TEC's discharge canal. The intake structure for Units 3 and 4 is equipped with fine-mesh screens and an organismal collection and return system that has been approved for use by DEP. The purpose of TEC's permit modification is to alter the internal piping in the facility to accommodate the desalination plant at the Big Bend site. TEC's permit modification allows for placement of an intake pipe from TEC's cooling water pipes to the desalination plant and a return pipe downstream from the intake pipe for the return of the desalination concentrate to TEC's cooling water discharge tunnels prior to outfall in the discharge canal. TEC's permit modification also allows for the placement of an auxiliary intake line by TBD to take additional water from behind the intake of units 3 and 4 up to TEC's maximum permitted limit of 1.4 billion gallons a day. The TEC proposed permit is conditioned to require TEC to maintain the structural integrity of both the steel sheet pile wall on the discharge canal and the breakwater barrier North of the discharge canal. TEC's permit modification does not request any changes to the operations of the Big Bend Generating Station. SOBAC Issues and Concerns SOBAC raised numerous issues and concerns in its petitions in these cases and in the Pre-Hearing Stipulation. However, some issues were elimination by rulings adverse to SOBAC during prehearing proceedings and final hearing. Based on the evidence SOBAC sought to elicit at final hearing and issues raised in its Proposed Recommended Order, other, earlier SOBAC issues and concerns appear to have been dropped. Remaining are essentially the following: increased salinity due to TBD discharge; alleged decreased dissolved oxygen (DO) from higher salinity; impacts of higher salinity and alleged decreased DO on marine plants and animals; alleged release of metals from sediments due to higher salinity and alleged lower DO, and effects on marine plants and animals; alleged monitoring deficiencies; alleged failure to utilize available technologies to lower salinity and raise DO; alleged deficient financial assurances; and various alleged resulting DEP rule violations. Description of Tampa Bay: Physical Properties The portion of Tampa Bay and Hillsborough Bay near the Big Bend facility is classified a Class III water body. Tampa Bay is a naturally drowned river valley, meaning that a deep channel exists as a result of natural forces. However, the channel has been deepened to 45 feet or greater to allow large ships to navigate the bay. This deepening of the channel increases the water flow of the head of the bay with the open gulf waters and allows this residual circulation to move more new water from the open Gulf of Mexico up into the bay. Ordinarily, circulation moves salt water up Tampa Bay and spreads it out onto the flanks of the bay where it then mixes with the freshwater. To complete this circulation, the water then flows back out towards the mouth of the bay, primarily along its flanks and shallower parts in the upper part of the water column. The water in Tampa Bay tends to flow faster in its deeper parts, both coming in and going out, and relatively slower in the shallow areas. The majority of flow of freshwater inflow occurs at the bay's flanks as can be seen very clearly in the salinity distributions. Mixing and Stratification Since the development of Tampa Bay from the 1880 condition to the 1972 and 1985 conditions, there is more mixing and exchange of water. Due to shoreline fills for development, such as Apollo Beach, there is less water that now comes in the bay than in the predevelopment condition. Tampa Bay is a fairly well mixed system from top to bottom. This is because the action of the tides basically acts like a big mix master. The bay is fairly shallow, less than four meters in depth on average. The tidal velocities can be as strong as two knots or about a meter per second. When the strong velocity pushes through shallow water, there is extensive overturning, where the bottom water is churned to the top and gets mixed very efficiently. That is very well seen in the observations during dry periods. Over 100 points in Tampa Bay were measured for temperature and salinity top, middle and bottom, and showed that they were very uniform throughout the bay. During periods of large volumes of freshwater input into Tampa Bay, freshwater is pumping into the bay faster than the tidal mixing can mix it from top to bottom. Therefore, in parts of Tampa Bay significant stratification is seen during many times in the wet season. During those times when rainfall is not as prevalent, tidal mixing once again dominates and the bay returns to a more well mixed system. The average tidal fluctuation for Tampa Bay is a range of two to three feet. Salinity As the tide in Tampa Bay comes in, it brings saltier water from the mouth of the bay toward the head of the bay, causing salinities to rise. As the tide recedes, bringing out fresher water from farther up the bay, salinities decrease. Over an individual tidal cycle, particularly during the wet season, a four or five part per thousand ("ppt") change in salinity will occur between a rising tide and a falling tide. During the dry season, tidal flushing is not as significant to salinity levels because not much difference exists in salinity from the head of the bay to the mouth of the bay. Even during the dry season, there is a one to two ppt change over a six to twelve-hour period in any given day. During the dry periods in 1990, salinities elevated up to about 33 ppt, with very little stratification. During the rainy periods, in June and July, salinities dropped rather drastically. In some areas, salinity dropped as low as to 20 to 22 ppt. However, in spite of these drastic seasonal differences, significant variation in salinity occurs as a result of tidal exchange. The Big Bend area is split by the dividing line between Hillsborough Bay and what has been classified Middle Tampa Bay. The salinity for Hillsborough Bay from 1974 through June 2001 at the surface ranges from 0.4 ppt to 38.2 ppt. The middle portion of the same water column contained a range from 2.5 ppt to 39.2 ppt, and the bottom portion showed a range from 3.9 ppt to 37.2 ppt. The average salinities during this time frame were as follows: top 24.2 ppt, middle 24.3 ppt and bottom 25.3 ppt. In the portion of Tampa Bay called Middle Tampa Bay, the surface level salinity ranged from 6.8 ppt to 38.2 ppt. At middle depth, salinities ranged from 7.4 ppt to 38.8 ppt. The bottom level salinities ranged from 11.9 ppt to 39.6 ppt. This is a large range of salinities. Tampa Bay near the Big Bend Area In the area near the Big Bend facility, the Mote Marine Laboratory survey data reflects that the salinity during May and June 2000 reached 33.4 ppt. Further, Mote Marine Laboratory data showed that the North Apollo Embayment area salinities were well mixed vertically throughout the system. The total volume of water exchanged into the North Apollo Embayment and associated canals during a mean tide is approximately 35 percent of the total volume of all water contained in that area. This tidal exchange occurs twice per day. The double diffusion process does not create high salinity in the bottom of the water column in the North Apollo Embayment. The double diffusion process, without any external influence, would lead to both surface and bottom layers of the water column reaching salinity equilibrium. Further, the turbulent mixing that occurs due to tidal processes and wind- induced mixing dominates over the double diffusion process. The Mote Marine Laboratory study conducted between May and early June 2000 did not detect any significant salinity stratification in the area near the Big Bend facility. Vertical stratification of salinity does occur but typically only during the periods of significant freshwater inflow and not in extreme drought or dry conditions. None of the Mote Marine Laboratory data detected any pockets of high salinity water or significant density stratification in the North Apollo Embayment. Estuarine Characteristics Tampa Bay is an estuary. Estuaries are semi-enclosed bodies of saltwater that receive freshwater runoff from drainage or riverine inflow, which measurably dilutes the salinity levels in the estuary. As a result, salinity levels in estuaries typically are highly variable, ranging from 0 ppt where rivers flow into estuaries, to as high as 40 ppt under conditions of low freshwater input or at estuarine mouths where they connect to the sea. There are naturally occurring dissolved oxygen levels below 4.0 mg/l in parts of Tampa Bay, including at Hillsborough County Environmental Protection Commission ("EPC") monitoring stations 9, 80, and 81, which are the closest stations to the proposed discharge. Dissolved oxygen in the bay decreases at night because photosynthesis ceases and respiration exceeds production. Other environmental parameters are also highly variable in estuaries. Therefore, the organisms that inhabit estuaries have adapted to tolerate these highly variable conditions. Estuarine organisms have adaptive means for tolerating changing salinity levels, either by conforming their internal salinity levels to the ambient salinity levels, or by actively regulating their internal salinity levels by intake or excretion of salt. Organisms that are adapted to tolerate a wide range of salinities within the estuary are termed euryhaline organisms. Essentially all of the common organisms in estuaries, including the Tampa Bay estuary, are euryhaline organisms, and therefore are capable of tolerating and living in a wide range of salinities and salinity changes that occur due to tidal, meteorological, and other natural forces in the estuarine environment. Extensive baseline biological studies performed on Tampa Bay reveal that the most common species in the Tampa Bay estuary tolerate salinity levels ranging from 5 ppt to 40 ppt. Seagrasses Five species of seagrass inhabit Tampa Bay. Seagrasses are photosynthetic underwater flowering plants that are typically limited in occurrence and distribution by the water clarity. This limits the depth at which seagrasses can grow. In Tampa Bay, seagrasses are limited to the fringes of the Bay, and are largely limited to depths of approximately three feet, although they can live in depths of up to six feet in clearer parts of the Bay. Seagrasses are very sensitive to increases in nutrients, like nitrogen and phosphorus. These nutrients encourage algae growth, resulting in competitive stress in seagrasses. Due to poor water quality caused by sewage discharge, dredging and filling, and other activities in the Bay, seagrass distribution in Tampa Bay decreased from an historic coverage of approximately 80,000 acres in 1950 to approximately 20,000 acres by 1982. Improvements in water quality, largely due to sewage treatment improvements, have allowed seagrasses to naturally recolonize to approximately 27,000 acres coverage, as of 1994. Wave energy affects seagrass distribution. Seagrasses cannot colonize and survive in areas subject to significant wave energy. For example, the portion of Tampa Bay dredged and filled to create the Apollo Beach "hammerhead" area was once comprised of a broad shallow-water shelf that diminished wave energy, allowing dense seagrass flats to cover the shelf area. Destruction of the broad shallow-water shelf with fill to create the Apollo Beach hammerhead has converted the area to a high wave energy system that is unsuitable for seagrass colonization and growth. Consequently, the only seagrasses inhabiting the Big Bend area are found approximately one kilometer north of the Big Bend power plant, in an area known as "The Kitchen," and approximately one kilometer south of the Apollo Beach hammerhead area. Additionally, there are ephemeral patches of seagrass inhabiting some limited areas of the North Apollo Embayment. Seagrasses are adapted to tolerate a wide range of salinities. They have specialized cells that enable them to deal with salt stress and with broad ranges of and fluctuations in salinity. These adaptations enable them to survive and thrive in estuarine environments. Of the seagrass species that live in Tampa Bay, one species, Ruppia maritima (widgeon grass), occurs in salinity ranges from zero to 40 ppt. Manatee grass, Syringodium filiforme, is most productive in salinities between 5 ppt and 45 ppt. The other three species, Halodule wrightii (shoal grass), Halophila engelmannii (star grass), and Thalassia testudinum (turtle grass), tolerate salinity ranges from approximately 5 ppt to 60 ppt. Seagrasses better tolerate higher salinity levels than lower salinity levels. Lower salinity levels are usually indicative of increased stream and land freshwater runoff, which usually is accompanied by increased turbidity and lower water clarity. Four of the five seagrass species that inhabit Tampa Bay typically reproduce asexually by producing rhizomes, rather than by flowering and producing seeds. It is not completely clear why seagrasses in Tampa Bay reproduce asexually rather than by flowering and seed production. However, recent research indicates that climatic temperature is the controlling factor for flower and seed production. In South Florida, where the climate is warmer, seagrasses reproduce by flowering and seed production. In Tampa Bay, the lower winter temperatures appear to be the limiting factor with respect to successful flower and seed production in seagrasses. Recent studies by the University of South Florida ("USF") marine laboratory indicate that naturally occurring fungal diseases may also limit successful flowering and seed production in seagrasses in Tampa Bay. Since most seagrass species that live in Tampa Bay tolerate and thrive in salinities of up to 60 ppt, the higher salinity levels in the estuary do not appear to adversely affect the ability of seagrasses to reproduce. In fact, the lower salinity levels, below 5 ppt, stress seagrasses and are more likely to adversely affect reproduction than do higher salinity levels. Mangroves Three major species of mangrove inhabit the Tampa Bay area: the red mangrove, black mangrove, and white mangrove. Mangroves inhabit the intertidal area, so they are subjected to daily tidal flooding and drying. Consequently, they must tolerate a wide range of variability in salinity levels and in water availability. Most mangroves tolerate soil salinity levels up to 60 ppt, close to twice the salinity of Tampa Bay. Mangrove mortality due to salinity does not occur until soil levels approach and exceed 70 ppt salinity. Mangroves are also adaptable to, and inhabit, freshwater environments. Phytoplankton and Zooplankton Plankton are life stages or forms of larger organisms, or organisms that have no ability for major locomotion, so they spend their entire life spans floating and drifting with the currents. Plankton are extremely productive in that they reproduce in very large numbers within very short life spans. Holoplankton are planktonic organisms that spend their entire lives in planktonic form. Examples include diatoms, which are a type of phytoplankton, and copepods, which are a type of zooplankton. Meroplankton are "temporary" plankton that drift with the currents in juvenile or larval stages, then either settle out of the water column and metamorphose into an attached form (such as barnacles) or metamorphose into mobile life forms (such as crabs, shrimp, and fish species). Phytoplankton are planktonic plant species and life forms. Zooplankton are planktonic animal species and life forms. Zooplankton feed on phytoplankton. There are approximately 300 species of phytoplankton, and numerous species and forms of zooplankton, found in Tampa Bay. Most phytoplanktonic and zooplanktonic species inhabiting Tampa Bay are euryhaline species capable of tolerating the wide range of salinity levels and abrupt salinity changes that occur naturally in the estuarine system. Most phytoplanktonic and zooplanktonic species and life forms in Tampa Bay tolerate salinity levels ranging from zero to 40 ppt. They appear to be more tolerant of the higher end than the lower end of this salinity range. Manatee The manatee is the only endangered or threatened species identified by the Florida Natural Areas Inventory as inhabiting the area where the desalination plant is proposed to be located. Manatees congregate at the Big Bend Power Station during colder months because they are attracted to the power plant's warmer water discharge. Manatees are considered to be estuarine species, but they have very broad salinity tolerance ranges. They migrate into and out of freshwater springs, through estuaries, into the Gulf of Mexico, and down to the Ten Thousand Islands, where hypersaline conditions frequently exist. Manatees routinely expose themselves to and tolerate salinities ranging from zero to more than 40 ppt. Fish The fish populations in Tampa Bay are comprised of a large number of marine euryhaline species. Due to their ability to osmoregulate their internal salinity levels, these fish species can inhabit salinity ranges from 5 ppt to as high as 40 ppt. Extremely extensive monitoring and sampling programs are currently being conducted in Tampa Bay and specifically in the vicinity of the Big Bend Power Station. The Hillsborough County EPC, SWFWMD, TBW, the United States Geological Survey ("USGS"), the Florida Marine Research Institute, USF, and Mote Marine Laboratory conduct separate biological monitoring programs that sample and monitor numerous biological parameters, including invertebrate infaunal and epifaunal species composition, abundance, and distribution; zooplankton and phytoplankton species composition, abundance, and distribution; emergent and submerged vegetation species composition, abundance, and distribution; and fish species composition, abundance, and distribution. These monitoring programs, which collect and analyze biological data from many areas in the Tampa Bay estuarine system, extensively monitor numerous biological parameters in the Big Bend area. Testing and Modeling Pilot Plant Although DEP's rules do not require the use of a pilot plant to demonstrate reasonable assurances, TBD installed a desalination pilot plant at the Big Bend site in November 1999. The pilot plant matched the hydraulics and configuration of the full-scale facility on a 1/1000 scale. The pilot plant used water from the Big Bend power plant discharge as its source water. The purpose of the pilot plant was to confirm design requirements for the desalination facility and to provide samples of intake water, filtered water, pretreated water, concentrate, and finished water to use for chemical characterization and analysis. Using a pilot plant is superior to using data from engineering projections or data from a different desalination facility because the pilot plant provides data specific to the Big Bend site. Data from the pilot plant were used to establish various effluent and other limits in the permit. Chemical Characterization Intake water, filtered water, pretreated water, concentrate, and finished water from the pilot plant were analyzed for over 350 parameters chosen by DEP to determine chemical characterizations and water quality. The pilot plant operation provides extensive chemical characterization of intake and discharge water composition and mass loading. This information was key in providing accurate information on the chemical composition and mass loading of the desalination discharge concentrate. With this accurate information on the components in the discharge water, DEP was provided more than sufficient reasonable assurance on the potential effect of the chemical components of the discharge. TBD tested the pilot plant discharge water for copper, nickel, other heavy metals, and those chemical constituents specified on the DEP chemical characterization form. The chemical characterization tested for concentrations of constituents based on a 12.8 to 1 dilution ratio, and even at that dilution ratio, did not exceed any of the state water quality parameters. However, to provide additional assurance that there will not be an exceedance of state water quality standards, the permit requires a minimum 20 to 1 dilution ratio. Dissolved Oxygen Saturation Testing Temperature and salinity affect the saturation point of dissolved oxygen ("DO") which is lowest when temperature and salinity are highest. DO saturation charts, which are typically used to determine DO saturation points, are not applicable because those charts do not contain the saturation point of DO at a temperature of 109 degrees Fahrenheit and a salinity of 79 ppt, which represents the worst case conditions for the proposed desalination facility. Bench-scale testing was performed on the undiluted desalination discharge from the pilot plant by heating discharge concentrate samples to 109 degrees Fahrenheit and aerating the samples until the DO stabilized and reached saturation point. The pilot plant bench-scale testing determined that the saturation point of DO in the worst case desalination concentrate using a temperature of 109 degrees Fahrenheit and salinity of 79 ppt was 5.7 mg/l. Toxicity Testing TBD conducted acute toxicity testing using a worst case scenario assuming a diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. Acute toxicity testing evidenced no mortalities, showing that the proposed discharge will not be a source of acute toxicity. TBD conducted chronic toxicity testing on raw concentrate from the pilot plant using a worst case scenario diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. The No Observed Effect Concentration (NOEC) for raw concentrate was determined to be 100 percent and the NOEC for diluted effluent was determined to be greater than 100 percent. The evidence did not explain these concepts, but it was clear from the tests that the proposed discharge will not be a source of chronic toxicity. TBD conducted its acute and chronic toxicity testing using protocols reviewed and approved by DEP. TBD's toxicity testing was also consistent with accepted EPA standards. Assessment of Potential Environmental Impacts TBD prepared an Assessment of Potential Environmental Impacts and Appendices ("Assessment") to analyze the potential biological impacts of the desalination plant discharge into the Tampa Bay estuary. The Assessment examined numerous physical parameters to determine the baseline environmental conditions in the portion of Tampa Bay proximate to the proposed desalination plant site. Among the physical parameters examined in determining the baseline environmental conditions were: salinity; sediment size and composition; metal content in sediments; and numerous water quality parameters such as transparency, biochemical oxygen demand, pesticides, dissolved metals, and pH. Consistency with SWIM Plan As part of the permitting process, TBD was required to demonstrate consistency of the proposed desalination discharge with the SWFWMD's Surface Water Improvement and Management (SWIM) plan, pursuant to Rule 62-4.242. TBD submitted an extensive SWIM consistency analysis, which is sufficient to meet the consistency requirement. Water Quality Based Effluent Limitation Level II Study TBD performed a Water Quality Based Effluent Limitation (WQBEL) Level II study pursuant to Rule Chapter 62- 650 for the purpose of determining the effect of the desalination plant discharge on salinity levels in the vicinity of the desalination plant discharge. TBD had the Danish Hydrologic Institute ("DHI") use the data collected through the WQBEL Level II study in its near-field model of the Big Bend area. See Findings 105-117, infra. DEP also used the data and the DHI model results to establish the salinity and chloride effluent limitations in the permit. The USF Far-Field Model The far-field model was prepared utilizing the Princeton model code. The Princeton model is well recognized and is generally accepted in the scientific community. The goals of the TBD far-field model performed through USF by Dr. Luther and his team were to evaluate the change in bay-wide salinity due to the desalination plant discharge, both alone and in combination with changes in salinity due to enhanced surface water system withdrawals under new consumptive water use permits issued to TBW by SWFWMD to provide other, additional sources of needed potable water supply. The primary goal was to provide DEP with the best science possible of the potential real effects of this desalination discharge into Tampa Bay. The modeling system of Tampa Bay utilized in this analysis was developed beginning in 1989. Dr. Luther and his team have continued to make refinements to the model over the last 12 years. Dr. Luther took the modeling system he had developed over the years for Tampa Bay and did three primary model scenarios. The baseline case reproduced the observed conditions during the 1990 and 1991 years--a very dry period in 1990 and a fairly wet period for 1991--as accurately as possible with all the boundary conditions estimated from observations. This was to capture an entire range of conditions in Tampa Bay. The baseline was then compared with validation data and other observations to ensure it was approximating reality. The second simulated scenario included the same effects as the baseline with the added effect of the desalination intake and discharge at the Big Bend facility. The third case approximated cumulative effects from the TBW enhanced surface water system river withdrawals according to the proposed permit withdrawal schedules. For each test case, it was assumed that only two of the four cooling units at the TEC Big Bend plant were in operation for an entire two-year period, a worst-case scenario expected to occur less than four percent of the time in any given year. The model included data on water levels, temperature, and salinity throughout Tampa Bay. In addition, it takes into account wind blowing across the surface of Tampa Bay, rainfall, freshwater inflow from rivers, and other surface water and groundwater sources. The model was calibrated and validated against actual data to verify simulation of reality as closely as possible. The model was calibrated and validated utilizing Hillsborough County EPC and Tampa Oceanographic Project ("TOP") salinity data. Physical Oceanographic Real Time System ("PORTS") and TOP data on current flow velocity and water levels were utilized to calibrate and validate water levels and current. The acoustic doppler current profilers used in the model study are able to measure the speed at which the water is traveling and the direction at various levels above the bottom within the water column. The TBD far-field model very accurately reproduces the observed tidal residual velocities observed with the acoustic doppler current profilers. The far-field model reflects any stratification that would occur during the model simulations. The far-field model simulates recirculation that occurs between the discharge and intake water. Recirculation is small due to the model's use of the actual bathymetry of Tampa Bay. There are significant shoals and other features that separate the water from the discharge and the intake canal that preclude significant recirculation most of the time. After submitting the far-field model report to DEP, further study was performed on the far-field model that calculated residence time for Tampa Bay. One study dealt with "residence" or "flushing" time. The concept of "residence time" is not well-defined; put another way, there are many different accepted ways of defining it. It may be defined in a simplified manner as the time it takes a patch of dye to flush out of the bay. However, for purposes of the studies performed on the far-field model, theoretical "particles" in model grids were tracked, and "residence time" was defined as the time it would take for the number of particles initially in a grid cell to decrease to 34 percent of the initial number. Using this approach and definition, residence time in the vicinity of the Big Bend facility on the south side where the discharge canal is located was less than 30 days. Immediately offshore of the area of the discharge, the residence time reduced to less than 15 days. The study indicated that the area of the Big Bend facility has a relatively low residence time. In the model's baseline run (for the desalination plant impacts only), maximum differences in salinity occurred during the month of April 1991. Throughout the two-year time period, the maximum concentration of salinities did not increase from this point, and in fact decreased. The maximum average value for salinity difference is 1.3 ppt at the grid cell located directly at the mouth of the TEC Big Bend discharge canal. More than two grid boxes away in any direction and the value falls to less than 0.5 ppt increase in salinity. The maximum salinity of any given day for the far- field model was in the range of 2.1 to 2.2 ppt, which compares favorably with the DHI near-field model which showed an increase of 2.5 ppt. The salinity changes caused by the cumulative effects scenario are smaller than the natural variability during the wetter months in Hillsborough Bay in cells immediately adjacent to the concentrate discharge. Increases in salinity will occur in the vicinity of the discharge canal but will be very localized and small relative to the natural variability in salinity observed in Tampa Bay. At a distance of more than a few hundred meters from the mouth of the discharge canal, it would be difficult (if not impossible) to determine statistically that there would be any increase in salinity from the desalination concentrate discharge. Over the two years modeled, there is no trend of increasing salinity. No long-term accumulation of salt is evidenced within the model. Further, no physical mechanism exists within the real world that would allow for such a long- term accumulation of salinity in Tampa Bay. Dr. Blumberg's independent work verified the conclusions in the far-field model constructed by USF. Dr. Blumberg's estimated flushing times are consistent with those found in the far-field model. DHI Near-Field Model The TBD near-field model was prepared by DHI. DHI prepared a three-dimensional near-field model to describe the potential salinity impacts from the discharge of the proposed desalination plant. The DHI model is a state-of-the-art model whose physics are well documented. By model standards, the DHI near-field model is a high resolution model. The DHI model essentially "nests" within TBD's far-field model. The near-field area includes those areas that would be directly influenced by the combined power and desalination discharges, the North Apollo Embayment and the residential canal system adjacent to the discharge canal. The near-field model was designed to determine whether or not the desalination plant would cause continuous increases in salinity and to predict any increase in salinity in the North Apollo Embayment and the associated canal system. In addition, DHI evaluated the potential for saline recirculation between the discharge and the intake via short circuiting due to overtopping of the existing break water. In order to construct the near-field model, existing data on bathymetry, wind sources, meteorology and other parameters were examined and analyzed. In addition, the information from an intensive data collection effort by Mote Marine Laboratories on current velocities, temperatures, and salinities was incorporated into the model. TBD conducted bathymetric surveys in the residential canal areas, the North Apollo Embayment, and the area between the discharge canal and the intake canal. The model has a vertical structure of six grids and reflects vertical stratification that would occur in the system being modeled. The vertical grids in the model can detect a thermal plume one meter in depth (the size of the thermal plume from TEC's discharge). Information about the TEC thermal plume was incorporated into the model and utilized to calibrate the model's predictive capabilities. The model took into account interactions between the temperature plume and the salinity plume. The model predictions matched the measured temperature plume created by the TEC discharges quite well. The near-field model conservatively assumed a scenario in which only the two TEC units with the smallest total through-flow of 691.2 million gallons a day cooling water were active. DHI then assumed production of a maximum 29 mgd in product water. A salinity level of 32.3 ppt at the intake was utilized in the simulation. The model assumed a conservative wind condition which results in less mixing and dispersion of the plume. Further, wind direction tended to be from the southwest or west during the simulation, which tends to push the plume against the TEC break water which tends to reinforce recirculation. SOBAC witness Dr. Parsons agreed that these simulations for April and May 2000 constituted extreme conditions. DHI ran its model for a total time period of six weeks. The "warm up" for the simulation took place from April 15 to May 7, followed by the "calibration" simulation from May 8 to May 22. An additional validation sequence was run from May 25 to June 8. The production run was defined as the three weeks from May 8 to May 29, 2000. The intensity of the calculations performed in the near-field model due to its high spacial resolution and numeric restrictions make it computationally demanding. The calibration runs took approximately a week to 10 days to run on a state-of-the-art computer. From a computational standpoint, it is not practical to run the near-field model for a two-year time period. The model shows good agreement between its water levels and current velocity to observed data. The model reflects the recirculation of the discharge water that would occur in the system. The maximum salinity for the extreme case scenario in the near-field model is an increase in salinity of 2.5 ppt. With three condensers running, under the modeling scenario comparing the base condition to the desal discharge, there is a maximum difference of only 2.0 ppt. Further, there is no indication of any continuous build up of salinity in the near- field area due to the desalination plant discharge. DHI performed many sensitivity runs on the model, including one which examined rainfall conditions. The results of a two-inch rainfall analysis show that rainfall profoundly freshens the water in the near-field area. Since the modeling was done in a time period of extreme drought, with no freshwater inputs, the ambient or background salinity trended up over the time frame of May through June. As with any estuary, if freshwater inflow is removed, the estuary will get saltier until freshening occurs. Even with the model simulation period extended an additional 10 days beyond that reflected in TBD Ex. 1-O, the model results did not show any increase of salinity differences caused by the desal facility above 2.5 ppt. Based on data from field collections, the operation of the desal plant under worst case conditions did not exceed the assimilative capacity of the near-field environment. A 10 percent salinity change (3.23 ppt) was not reached in any grid cell. The Blumberg Study The "Environmental Impact Assessment for a Seawater Desalination Facility Proposed for Co-Location with the Tampa Electric Company Big Bend Power Generation Facility Located on Tampa Bay, Florida" authored by Norman Blake and Alan F. Blumberg ("Blumberg Study") is a hydrodynamic model study combined with an analysis of potential biological effects. The Blumberg Study was performed at the request of and presented to the Board of County Commissioners of Hillsborough County, Florida. Dr. Blumberg's model used 1998 and 1999 as its baseline, which consisted of an extremely wet year followed by an extremely dry year. The model assumed a scenario of two cooling units in operation pumping 656 mgd of discharge flow. The results of the Blumberg Study are very similar to the results of TBD's far-field model. In addition, the model ran for a 9-year period without any sign of ongoing build-up of salinity. After the two-year model run, the second year ran for an additional 7 simulated years for total model simulation period of 9 years. The Blumberg Study found salinity only increased by 1.4 ppt in the North Apollo Beach Embayment. In fact, the Blumberg Study showed no salinity build-up after the second year of the 7-year portion of the model simulation. The Blumberg Study found that the flushing time for the area near the Big Bend facility ranges from 4 to 10 days. The Blumberg Study applied a formula to predict potential DO saturation level changes. The analysis concluded a small change to DO saturation assuming full saturation on average of 7 mg/l. The Blumberg Study predicted that the desalination discharge would not lower actual DO levels below 5 mg/l. The Blumberg Study concluded that the marine ecology will not be affected by the desalination facility operation. Older Two-Dimensional Models of Tampa Bay Significant strides have been made in hydrodynamic modeling over the last 10 years, with the standard changing from two-dimensional models to three-dimensional models. Three-dimensional models provide more complete results than two-dimensional models. In the late 1970's through the late 1980's, modeling was constrained by the computing limitations of the time and could not examine the difference in water layers in a bay and potentials for currents going in different directions or speeds in different layers of the bay, as now done by state-of-the-art three-dimensional models. A two-dimensional model cannot accurately represent the tidal residual circulation in an estuary such as Tampa Bay, because it omits some of the critical physical forces that drive this type of flow. As the acoustic doppler current profiler showed, water flows in the top of the water column in one direction and flows in the bottom of the water column in a different direction. A two-dimensional model would average these flows over the entire vertical water column. In doing so, it would show much slower residual flow (and, therefore, longer residence time and a longer time to flush the system). SOBAC offered the testimony of Dr. Carl Goodwin, a civil engineer with the USGS. Dr. Goodwin provided testimony on two-dimensional model studies he did for the USGS in the late 1980's to assess the effects of dredging the shipping channel in Tampa Bay. Dr. Goodwin's studies, contained in SOBAC Exs. 69 and 70, suggested the existence of "gyres" in Tampa Bay. But no "gyres" have been observed, and it now appears that these gyres actually do not exist but are two- dimensional modeling artifacts, as shown by state-of-the-art three-dimensional modeling of Tampa Bay. In an earlier version of Dr. Luther's Tampa Bay model, an experiment was performed running the model in a vertically average mode to mimic the two-dimensional model. In this mode, the model was able to reproduce the "gyres" that Dr. Goodwin observed in his two- dimensional model. When the physical equations that related to pressure forces (baroclines) were reactivated in the three- dimensional model, the "gyres" disappeared. In addition, this experiment showed that the two- dimensional model simulation showed residence times an order of magnitude longer as compared to the full three-dimensional simulation. This means that residence time would be 10 times longer in the two-dimensional model than in the three- dimensional model, which takes into account baroclinic forces. Subsequent to the publication of his modeling studies (SOBAC Exs. 69 and 70), Dr. Goodwin found that it would take approximately 110 days for water to travel from the mouth of the Hillsborough Bay to the mouth of Tampa Bay in 1985. This calculation by Dr. Goodwin was not subjected to peer review or the USGS process. However, dividing the 110-day time period with correction factor of 10 discussed above, Dr. Goodwin's corrected estimate would predict an 11-day period for transport of water from Hillsborough Bay to the mouth of Tampa Bay--similar to the Blumberg Study and far-field model results. Opinions of Other SOBAC Experts Besides Dr. Goodwin, SOBAC also elicited some general opinions regarding the combined thermal and salinity plume from Dr. Mike Champ, called as an expert in the areas of environmental biology and chemistry, and from Dr. Wayne Isphording, called as an expert in sedimentology and geochemistry. In part, Dr. Champ based his opinion on a misunderstanding that Tampa Bay is not well-mixed or well- circulated at the location of the Big Bend power plant. In this respect, Dr. Champ's testimony was contrary to all the evidence. Even the "gyres" suggested by Dr. Goodwin's two- dimensional model studies would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. To the extent that the opinions of Dr. Champ and Dr. Isphording differed from the modeling results, they are rejected as being far less persuasive than the expert opinions of the modelers called by TBD, who spent far more time and effort studying the issue. Compliance with Dissolved Oxygen Standard Oxygen is a gas which can dissolve in water to some degree. There are two measurements of DO in water: saturation point and actual level. The saturation point of DO in water equates to the maximum amount of DO that water will hold. The actual level of DO is a measurement of the oxygen in the water. Since the saturation point is the maximum amount of DO that water will hold in equilibrium, the actual level of DO in water is typically equal to or lower than the saturation point. Desalination will affect the saturation point of DO to the extent that it increases salinity. Increased salinity decreases the saturation point of DO because it lowers the potential for water to hold oxygen. But desalination would not affect the actual level of DO in the water if the saturation point remains above the actual level of DO in the water. TBD determined that in the worst case scenario using undiluted desalination discharge, the lowest possible saturation point of DO would be 5.7 mg/l. If the actual level of DO is above 5.7 mg/l, desalination may lower that actual level of DO to 5.7 mg/l. If the actual level of DO is below 5.7 mg/l, desalination will not lower the DO. Since TBD will aerate the water in the pretreatment process, if the actual level of DO is below 5.7 mg/l, the actual level of DO in the discharge water will be increased. The permit DEP proposes to issue to TBD requires that DO at the point of discharge from the RO plant meet the following: that instantaneous DO readings not depress the intake DO when intake DO is at or below 4.0 mg/l, and that they be greater than or equal to 4.0 mg/l when intake DO is greater than 4.0 mg/l; that 24-hour average readings not depress the 24-hour average intake DO when the 24-hour average intake DO is at or below 5.0 mg/l, and that they be greater than or equal to 5.0 mg/l when the 24-hour average intake DO is greater than 5.0 mg/l. The evidentiary basis for SOBAC's argument that the proposed permit's DO limitation allowed violations of state water quality standards was the testimony of Dr. Champ. But it was evident from his testimony that Dr. Champ was not even aware of the effluent limitations until they were pointed out to him at final hearing. Nonetheless, and although Dr. Champ barely had time to read the DO limitations, Dr. Champ immediately opined that the proposed DO limitations virtually invited water quality violations. He dismissed the permit language out-of-hand as being "loosey-goosey," "fuzzy-wuzzy," and "weasel-like." Actually, there is no conflict between the proposed permit's DO limitations and the water quality standards and water quality criteria in DEP's rules. Other witnesses, particularly Tim Parker of DEP, properly compared the language in the permit with DEP's rules containing water quality standards and water quality criteria. Mr. Parker pointed out that the rules must be read in harmony with each other. Rule 62-302.530(31) contains DO water quality criteria and requires that the "actual DO shall not average less than 5.0 in a 24 hour period and shall never be less than 4.0." Rule 62-302.300(15), a water quality standard, states: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having a water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. Mr. Parker testified that the "natural conditions" referred to in Rule 62-302.300(15) are those found in the intake water to the desalination facility. TBD will not violate either the water quality criteria or the water quality standard for DO. If the actual level of DO in the intake water is less than 5.0 mg/l, TBD will not decrease the actual level of DO in the water below 5.0 mg/l because the actual level of DO is below the worst case saturation point of 5.7 mg/l. The water quality standard in Rule 62-302.300(15) does not prohibit discharges having DO levels below 4.0 mg/l when that discharge does not cause or contribute to existing DO violations. TBD will not cause or contribute to existing DO violations because if the level of DO in the intake water which is the natural condition is less than 4.0 mg/l, TBD will not decrease the actual level of DO in the water. To the contrary, the desalination process will increase the actual level of DO whenever it is below 5.0 mg/l. TBD has provided reasonable assurance that the proposed desalination discharge will not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15) because the desalination process will not decrease the actual level of DO below 5.0 mg/l. SOBAC argued that DO levels will drop between intake and discharge as a result of desalination. Some of this argument was based on the testimony of Dr. Mike Champ, one of SOBAC's expert witnesses. But Dr. Champ's testimony on this point (and several others) is rejected as being far less persuasive than the testimony of the expert witnesses for TBD and the other parties. See Finding 196, infra. SOBAC's argument apparently also was based on a fundamental misapprehension of the results of the Blumberg Study, which SOBAC cited as additional support for its argument that desalination will decrease DO at the discharge point. The Blumberg Study only spoke to desalination's effect on DO saturation concentrations, not to its effect on actual DO levels. (In addition, contrary to SOBAC's assertions, the Blumberg Study did not model DO saturation concentrations but only inferred them.) pH The pilot plant measured and analyzed the potential for pH changes in the desalination process and demonstrated that the desalination process reduced pH by no more than a tenth of a pH unit. pH ranges in natural seawater from top to bottom change over one full pH unit; a tenth of a pH unit change would be well within the natural variation of the system. TBD has provided reasonable assurances that the proposed desalination discharge will not violate Rule 62- 302.530(52)(c), which requires that pH shall not vary more than one unit above or below natural background of coastal waters, provided that the pH is not lowered to less than 6.5 units or raised above 8.5 units. Limitations for pH in the permit ensure compliance with Rule 62-302.530(52)(c) at the point of discharge to waters of the state. Temperature Nothing in the desalination process adds heat to the discharged water. To the contrary, the desalination process may dissipate heat due to the interface of the intake water with the air surface in the pretreatment process. Further, the effect of removing 25 mgd of heated cooling water as desal product water reduces the heat load coming out of the TEC plant cooling water discharge by that same 25 mgd. Temperature readings taken as part of the pilot plant study confirm a slight decrease in temperature across the desalination process. Metals The pretreatment process employed by TBD will result in a reduction in metals in the treated water. Ferric sulfate is added to the intake water upstream of the sand filters in the pretreatment process to precipitate metals into solid material which can be captured by the sand filters. Adding ferric sulfate in the pretreatment process results in a net reduction in the total mass load of metals in the discharge water. Initial calculations in the permit application that 104 pounds of ferric sulfate were being discharged in the desalination concentrate were based on using 20 mg/l of ferric sulfate and a conservative estimate of 95 percent settling of solids, with 5 percent of the ferric sulfate being discharged in the desalination concentrate. Further testing through the pilot plant revealed that coagulation optimizes at 9 to 14 mg/l of ferric sulfate with 97.5 percent of the solids settling, resulting in only 2.5 percent (52 pounds) of the ferric sulfate being discharged per day. The desal facility discharge of iron is minute in comparison to naturally occurring metals within the surface water flowing into Tampa Bay from the Hillsborough and Alafia Rivers. Increases in iron due to ferric sulfate addition are predicted to result in a diluted discharge in which the iron level is still below Class III marine surface water limitation of 0.30 mg/l. Even SOBAC witness Dr. Isphording confirmed that there are no concerns caused by metals that TBD is adding during the process. Discharge Effect on Metal Absorption/Desorption Dr. Isphording limited his concerns to the reaction of higher salinity, DO, and redox to the sediments already contained within the area beyond the discharge point. Dr. Isphording admits that he cannot quantify what the potential release of heavy metals would be due to these factors. Absorption of metals occurs when an organic or clay particle attracts to its surface a metal. Biota do not obtain metals if the metal is held in sand or silt size particles. Biota, be they plant or animal, in most cases obtain the metals they receive from tiny particles that are suspended in the water called microparticulate material. Microparticulate material is generally referred to as colloidal phase. Typically, this phase is on the order of a tenth of a micron in size. Biota obtain metals only if they are present at clay- size particles. Only 10 percent of the quantity of metals that are theoretically available to the biota in a given environment is actually absorbed in tissues. Salinity Has Little Effect on Metals Salinity does not exert a controlling influence on absorption/desorption reactions except at very low salinities. If the salinity is zero, which is essentially a pure freshwater environment, and the salinity level then rises 3 ppt, there would be profound changes in the metal loads, for example, where rivers meet estuaries or seawater. When salinity levels in the water are on the order of 25 ppt, small salinity perturbations such as 2.5 ppt will have a very small effect on absorption/desorption reactions. In fact, the influence can be either positive or negative, but in general they are going to be quite small. Potential releases or gains of metal from salinity changes of 2.5 ppt, at the area of the discharge canal, would be difficult to predict, and it is uncertain whether the change would be positive or negative. pH Will Have Virtually No Effect on Metals Although SOBAC witness Dr. Isphording knew of no change to pH caused by the desalination process, he testified to the alleged effect of lowered pH on the metal in the sediments and water column. Only large pH differences can have a significant influence on absorption or desorption of metals. Any effect on absorption from a decrease in pH on the order of a tenth of a pH unit will be hidden within the natural variations of the estuarine system. See Finding 140, supra. Effect of Lower Oxygen Levels on Metals Redox is basically an oxidation-reduction phenomenon. In order for the low levels of oxygen to have a reducing effect resulting in a release of metals from sediments, virtually all of the oxygen would have to be removed from the water. Basically, the environment would have to reach anoxic conditions. Even then, some metals such as copper would remain within the sediments. In an oxygen-buffered system, redox perturbations will not significantly or measurably mobilize metals. Sediments can be oxidizing in the upper part and then generally become more reducing at depth. The area near the desal discharge does not have organic-rich deep sediment. Proposed Discharge Effect on Bioavailability of Metals The proposed desalination plant's discharge will not increase the bioavailability on metals above that of natural variations and any changes would be hard to discern or measure. Nor will there be any appreciable accumulation of metals in sediments in the receiving water resulting from the proposed desalination discharge. DEP has not established any sediment quality standard and monitoring of sediments is not a NPDES requirement. The desalination plant does not result in violations of Class III marine surface water criteria and standards. No Synergistic Effects Caused by Discharge There are no synergistic effects from the proposed discharge wherein the combination of two elements such as temperature and salinity together would create a new effect. Instead, pH, redox, salinity, and temperature may have small, immeasurable effects that may offset each other. No Adverse Impacts to Biota Comprehensive species lists of phytoplankton, zooplankton, benthic macroinvertebrates, fish, aquatic flora (including seagrasses and mangrove species), and threatened or endangered species inhabiting the area were prepared based on extensive review of applicable scientific literature on Tampa Bay. The salinity tolerance ranges of these species were determined through extensive review of information on salinity ranges associated with species capture, laboratory studies, review of studies addressing species types and salinity tolerances in hypersaline estuaries, and species salinity tolerances determined for other desalination projects. When background salinity is above 10 ppt, changes in salinity of a few ppt have no effect on most organisms. Lower salinities are more detrimental than high salinities to most marine organisms, as long as the upper limit does not exceed a value of approximately 40 ppt salinity. Most planktonic species and life forms can tolerate salinities of up to 40 ppt. Mangrove and seagrass species living in the area can tolerate salinity levels as high as 60 ppt. Benthic macroinvertebrates in the area routinely experience, tolerate and survive in salinity levels ranging from approximately 6 ppt to over 39 ppt under natural environmental conditions. Fish species in the area routinely experience and tolerate salinity levels as high as 39 to 40 ppt under natural environmental conditions. Estuaries serve as fish nurseries because fish species lay their eggs in estuaries, and the larval and juvenile life stages live and mature in estuaries. Due to extreme range of conditions that naturally occur in estuaries, fish reproductive strategies have adapted to enable fish eggs and larval and juvenile life stages to tolerate the wide range of natural conditions, including ranges in salinity levels, that are endemic to estuaries. Egg, larval, and juvenile fish stages may be better able to tolerate extreme range of salinities than adults life stages. A 2.5 ppt increase in salinity and the permitted maximum increase of 10 percent above the intake chloride level is within the range of tolerance and variability that seagrasses, mangrove species, benthic macroinvertebrates, biota, fishes, manatees, zooplanktonic and phytoplanktonic species, and other organisms and life forms living in Tampa Bay routinely encounter and tolerate in the natural environment. A 2.5 ppt increase in salinity with the maximum permitted salinity discharge limit of 35.8 ppt of salinity and the permitted maximum increase of 10 percent above the intake chloride level will not adversely affect the survival or propagation of seagrasses, mangroves, benthic macroinvertebrates, biota, zooplankton, phytoplankton, fish, fish eggs, or juvenile life stages of fish species, or other organisms or life forms in Tampa Bay, and specifically the portion of Tampa Bay in the vicinity of the desalination plant discharge. The Shannon-Weiner Index, which is a biological integrity index codified at Rule 62-302.530(11), requires that the index for benthic macroinvertebrates not be reduced to less than 75 percent of established background levels. Since there will be no adverse impacts to benthic macroinvertebrates due to the desalination discharge and since the level of salinity increases anticipated will tend to benefit benthic macroinvertebrates population, TBD has met the criterion in Rule 62-302.530(11). The Mote Marine Laboratory data showed that Tampa Bay experienced a 2.0 ppt change in salinity over the course of one month. No fish kill or observable die-offs of species were observed or reported from this natural occurrence of elevated salinity. The desalination discharge will (1) not adversely affect the conservation of fish and wildlife, including endangered species, or their habitats, (2) not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge, (3) not violate any Class III marine water quality standards, and (4) maintain water quality for the propagation or wildlife, fish, and other aquatic life. The desalination discharge meets the antidegradation standards and policy set forth in Rules 62-4.242 and 62- 302.300. Discharge Disposal Options Analyzed As part of the permitting process, TBD demonstrated that the use of land application of the discharge, other discharge locations, or reuse of the discharge was not economically and technologically reasonable, pursuant to Rule 62-4.242. TBD submitted a sufficient analysis of these options as part of its Antidegradation Analysis. (TBD Ex. 1G; TBD Ex. 200, Fact Sheet, p. 16). Further Protection in the Permit The permit review of the desalination permit application is one of the most thorough ever conducted by DEP. The proposed permit has conditions which create and provide a wide margin of environmental protection. The permit sets effluent limitations of various constituents which are reasonably expected to be in the desal facility discharge and provides for monitoring programs to ensure compliance with those effluent limitations. The monitoring requirements of the proposed permit exceed the monitoring requirement imposed on other facilities in the Tampa Bay area. Effluent Limitations DEP established effluent limitations using the Class III marine state water quality standards, data provided from the pilot plant regarding the chemical characterization, the modeling conducted by DHI and the University of South Florida, and the water quality data collection by Mote Marine Laboratory in connection with the establishment of the WQBEL. The effluent limitations contained in the permit are consistent with DEP rules. The proposed permit restricts TBD to the lesser of either the chloride limit of 10 percent above intake or the salinity limit of 35.8 ppt. There is no state water quality standard for salinity. The permit limit for chlorides complies with Rule 62- 302.530(18). The permit's additional requirement of a minimum dilution ratio has the effect of limiting chlorides to 7 percent above intake for 384 hours per year and 5 percent above intake for the remainder of the year and thus provides extraordinary assurance that the state water quality standard for chlorides will be met. Dr. Champ was SOBAC's primary witness in support of its argument that the proposed permit allows a discharge with excessive salinity. But it was apparent from his testimony that Dr. Champ misinterpreted the permit limitations for salinity. See Finding 196, infra. Dr. Champ conceded that the chloride limit of 10 percent above intake was appropriate but focused on the 35.8 ppt maximum, as if it overrode the chloride limitation. As found, the opposite is true. TBD will be limited to 10 percent above intake for chlorides even if the result is salinity far less than the daily maximum of 35.8 ppt. Dr. Champ also had concerns about comparing the discharge to intake chloride levels as not being representative of "normal background." He argued (as does SOBAC) for comparing discharge to chloride levels somewhere else in Middle Tampa Bay, nearby but far enough away to insure no influence from the discharge. But the modeling evidence provided reasonable assurance that there will not be a great deal of recirculation of discharge to intake and that the recirculation expected will not cause salinity to build-up continuously over time. The modeling evidence is accepted as far more persuasive than Dr. Champ's testimony. See Finding 196, infra. The only metals for which effluent limitations were established in the permit are copper, nickel, and iron because these were the only metals determined to be close to the state water quality standard levels by the pilot plant studies. The actual levels of such metals in the desalination discharge will be less than those in the pilot plant testing because the dilution ratio (12.8 to 1) used in the pilot testing is much higher than the minimum dilution ratio required by the permit (20 to 1). The permit effluent limitations for copper, nickel, and iron are based on, and comply with, DEP Rules 62- 302.500(2)(d) and 62-302.530(24), (39) and (45). The permit effluent limitations for Gross Alpha are based on and comply with the requirements in Rule 62- 302.530(58). Biological treatment of the desalination plant discharge concentrate is not required because it consists of seawater. Monitoring for Effluent Limitations DEP is able to separately determine TEC's compliance with its permit from TBD's compliance with the effluent limitations in the proposed desalination permit because of how the facility is designed and the monitoring is constructed. Monitoring requirements in the proposed permit were determined with reference to the probability of desal facility discharge exceeding specific water quality standards. DEP rules do not require monitoring for each and every constituent detected above background concentrations, only those which would probably exceed state water quality standards. The permit requires monitoring of effluent limitations at the intake to and discharge from the desalination facility and the calculation of the diluted effluent levels in the co-mingled discharge water. In order to calculate the effluent components in the diluted discharge water, continuous monitoring is performed on the TEC cooling water discharge rate of flow. Parameters of DO, conductivity, salinity, chlorides, copper, iron, nickel, radium, gross alpha, and effluent toxicity are measured at both intake and discharge pursuant to proposed permit. Monitoring of Intake Monitoring of the intake will be located, after interception off TEC Units 3 and 4, prior to entering the desalination plant. Using a sampling location of the intake to the desalination facility prior to filtering or chemical addition for background samples is consistent with the definition of "background" in DEP Rule 62-302.200(3). EPC Stations 11, 80, 81, 13, and 14 are not proper locations for background samples because salinity varies with tides and depth and those stations are too distant from the actual intake point. EPC station 9 is not a good location because it is closer to the discharge than the permit sample point. Monitoring of Discharge Monitoring of the discharge will take place in the wet well prior to discharge into TEC's cooling water discharge tunnels. This monitoring location is in compliance with Rule 62-620.620(2)(i) which provides for monitoring of effluent limitations in internal waste streams. Monitoring of the desal facility discharge concentrate in each of the four cooling water discharge tunnels is impractical due to the high volume of dilution and addition of four potential discharge locations. Once the desal facility concentrate is diluted by the TEC cooling water discharge, it is much more difficult to obtain accurate water quality testing for constituents at such minute levels. Monitoring of the Combined Discharge Concentrations Calculations determine the mixing ratios of the desalination concentrate with TEC's cooling water. Using the flow data from TEC, the calculations will accurately determine the water quality of the co-mingled discharge water. Compliance with Permit Effluent Limitations The proposed permit requires TBD to monitor constituents for which there are effluent limitations on either a daily, weekly or monthly basis, depending on the constituent. The frequency of monitoring for each constituent is based on comparing the expected levels of the constituent to the water quality standard and analyzing the probability of the desal facility discharge exceeding that standard. The monitoring provides additional assurances beyond the pilot plant studies, testing and modeling that no water quality standard will be violated. Continuous monitoring is not necessary to successfully monitor discharges. Monthly measurements are sufficient to determine compliance even for a daily permit level because the chemical characterization studies provide reasonable assurances that the desalination concentrate will not exceed the effluent limitations. Monthly monitoring provides further checks and balances to assure that the desalination discharge is in conformance with the effluent limitations and DEP rules. The EPA only requires that monitoring occur at least once a year. Conductivity provides a direct correlation to salinity and chlorides. Measuring conductivity provides salinity and chloride levels by basis of calculations and is typically used as a surrogate for monitoring chloride and salinity continuously. Salinity and chloride cannot themselves be measured continuously because they are measured by lab tests. The permit requires conductivity to be monitored continuously, not because DEP believed the desalination discharge would be near the chloride limitation, but rather to be extremely conservative. The permit conditions treat an exceedance of salinity or chlorides based on conductivity readings to be a violation of the permit effluent limitations for salinity and chlorides. TBD provided reasonable assurance to DEP that the proposed desalination discharge would not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15). The permit condition requiring monitoring of DO provides verification that desal facility discharge will meet the DO water quality standards. Even SOBAC's witness Dr. Champ admitted that a continuous measurement for DO is not as valuable as random weekly samples. External Monitoring Programs The proposed permit requires TBD to develop and submit to DEP a Biological Monitoring Program to monitor seagrasses, benthic macroninvertebrates and fish populations to be consistent with existing Tampa Bay monitoring programs. This program will provide an effective means of monitoring the potential impacts of the desalination discharge. The proposed permit also requires TBD to implement a Water Quality Monitoring Program for three monitoring stations located proximal to the intake, the discharge and the North Apollo Beach Embayment which will monitor conductivity, salinity, DO and temperature continuously. These monitoring programs will provide additional ambient data to DEP. If the data indicate an exceedance or reasonable potential for an exceedance of water quality standards, DEP may reopen the permit in accordance with the reopener clause contained in the permit. These monitoring programs go beyond the requirements in DEP rules. Additionally, DEP does independent monitoring of NPDES discharges without notice and on a purposely unpredictable basis. Proof of Financial Responsibility Rule 62-620.301(6) addresses when DEP may require a permit applicant to submit proof of financial responsibility to guarantee compliance with Chapter 403, Florida Statutes. TBD's compliance history was taken into consideration during the permitting process. Adequate financial assurance were provided in the permit application. (TBD Ex. 1I). Further, the permit conditions added by the settlement agreement (TBD Ex. 470) provide for additional financial assurance beyond those that can be required by the NPDES program and DEP rules. Additional Comment on SOBAC's Evidence As already indicated, SOBAC elicited the testimony of several expert witnesses at final hearing to support its contentions. But none of SOBAC's experts spent a great deal of time studying TBD's desal project, especially compared to witnesses for the other parties. Mostly, SOBAC experts expressed general scientific principles that were not directly tied to specifics of the desal project or were very general expressions of concern. Often, SOBAC's experts were not familiar with all the efforts of experts offered by the other parties to address those very concerns. Except for Dr. Champ, no SOBAC expert opined that the proposed permits would result in violations of DEP statutes and rules. Some SOBAC experts expressed opinions that only would be relevant if there were insufficient assurances in proposed permits that DEP statutes and rules would not be violated. Statistical evidence presented was not particularly relevant. Dr. Goodwin As previously mentioned, Dr. Carl Goodwin was willing to provide testimony on work he did for the USGS, but he gave no expert opinions on the permits which are the subject of these proceedings. As also previously discussed, his two- dimensional model studies were constrained by computational limitations. Even so, his studies indicated that flushing in Tampa Bay was becoming more rapid in recent years. In addition, even if the "gyres" suggested by his two-dimensional studies actually existed, they would tend to promote mixing in Tampa Bay in area of the Big Bend power plant. Dr. Champ Dr. Champ's first opinion was that 35.8 ppt is too high a salinity limit and would result in "oceanic" conditions. He attempted to compare this result to results of diversion of substantial amounts of freshwater inputs to the Black Sea for agricultural purposes--a totally different situation not suitable for comparison to Tampa Bay. Initially, Dr. Champ suggested a limitation of a 10 percent increase above "background" or "ambient" conditions; it was apparent that initially Dr. Champ was not cognizant of the 10 percent over intake chloride limitation in the proposed permit. When he was made aware of the chloride limit, he misinterpreted the two limits, saying that TBD would not be limited to the lower of the two. When it was suggested that he might have misinterpreted the two salinity limits, Dr. Champ testified that chlorides should be compared to a "natural" or "environmental" control site somewhere nearby but outside the influence of the combined TEC/TBD discharge; he said it was a "farce" to compare chlorides to a control site "inside the plant." In so doing, he seemed not to recognize the purpose of the comparison made in the proposed permit--to isolate and identify the impacts of TBD's desal process. In addition, dismissing without much consideration the contrary results of extensive and sophisticated modeling, Dr. Champ opined off- handedly that DO would decrease due to higher salinity that would recirculate and build-up over time. In part, Dr. Champ based this opinion on his misunderstanding that Tampa Bay is not well-mixed or well-circulated at the location of the Big Bend power plant. This was contrary to all the evidence; even if the "gyres" predicted by Dr. Goodwin's two-dimensional model existed, they would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. Dr. Champ next misinterpreted the DO limits in the proposed permit. See Finding 133, supra. Dr. Champ then predicted a decrease in species diversity as a result of higher salinity and lower DO. (To the contrary, salinity increases in the amounts predicted by the far greater weight of the evidence probably would result in somewhat of an increase in species diversity.) Ultimately, Dr. Champ testified that consequences to marine organisms would be dire, even if salinity increased only by 2.5 ppt, because a "salinity barrier" would form across Middle Tampa Bay in contrast to more gradual natural changes in salinity. The far greater weight of the evidence was to the contrary. Dr. Champ made several suggestions to avoid the calamitous results he predicted: require use of a cooling tower to reduce the temperature of the combined TEC/TBD discharge; collect the desal brine concentrate and barge it to the Gulf of Mexico; require intake and discharge pipes extending into the shipping channel in Middle Tampa Bay. But Dr. Champ did not study or give a great deal of thought to implementation of these suggestions. Besides, the other parties proved that these measures were not needed for reasonable assurances. In an attempt to buttress his opinion testimony, Dr. Champ also testified (along with SOBAC's President, B.J. Lower) that the TEC intake canal is virtually devoid of life and that biodiversity in the discharge canal is very low. This testimony was conclusively refuted by the rebuttal testimony of Charles Courtney, who made a site visit after SOBAC's testimony and described in detail a significant number of healthy species in the intake canal, including oyster communities, xanthid crabs, porcellanid crabs, snook, anemones, bivalves, polychaete, and mangroves with seedlings. Of the one and one- half pounds of oysters that Mr. Courtney sampled, he estimated that approximately fifty percent of those oysters were living, which represents a very healthy community. Mr. Courtney further noted that some of the crabs were carrying eggs, which indicates an active life cycle for those species. As to the TEC permit modification, Dr. Champ testified that it was “in-house stuff” which would not affect the environment outside the TEC plant. No other SOBAC witness addressed the TEC permit modification. Dr. Isphording SOBAC called Dr. Wayne Isphording as an expert in sedimentology and geochemistry. Dr. Isphording expressed no concern that the desal process would add metals to Tampa Bay. Essentially, he gave opinion testimony concerning general principles of sedimentology and geochemistry. He testified that heavy metals bound in sediments are released naturally with increases in salinity, but that salinity levels would have to be extreme to result in the release of abnormal quantities of such metals. He admitted that he had performed no studies of sediments in Tampa Bay and declined to offer specific opinions that metals in fact would be released as a result of predicted salinity increases. Dr. Isphording admitted that he knew of no condition in the proposed Desal Facility permit which would cause or allow a violation of state water quality standards. He was aware of no statute or rule requiring more monitoring and testing than is required in the proposed permit. Dr. Parsons SOBAC offered the testimony of Dr. Arthur Rost Parsons, an assistant professor of oceanography at the Naval Postgraduate School, in an attempt to raise questions regarding the near-field and far-field modeling which were provided by TBD to DEP during the course of the permitting process. However, not only had Dr. Parsons not done any modeling in Tampa Bay himself, he was not provided numerous reports and clarifications relating to the studies he was called to critique. He only reviewed an interim report dated November 1, 2000, regarding the near-field model. Dr. Parsons testified that the DHI model used for the near-field study was an excellent shallow water model. He found nothing scientifically wrong with it and testified that the "physics and the model itself is . . . well–documented." Dr. Parsons also did not contradict the results of the DHI model. Instead, he noted that the modeling task was difficult and complex, he described some of the model's limitations, and he testified to things that could have been done to increase his confidence in the model results. One of Dr. Parson's suggestions was to run the model longer. But the evidence was that, due to the model's complexity and high computational demands, it would have been extremely expensive to run the model for longer periods of time. Another of Dr. Parson's suggestions was to use salinity data would be to use the information that the model itself generated with regard to salinity distributions instead of a homogeneous set of salinity data. Dr. Parsons was concerned that use of homogeneous salinity data would not reflect the effect of "double diffusion" of heat and salinity, which would result in sinking of the combined heat. But engineer Andrew Driscoll testified in rebuttal that the effects of "double diffusion" would cease once equilibrium was reached and would not result in a hypersaline plum sinking to the bottom. In addition, he testified that turbulent mixing from tide and wind would dominate over the effect of "double diffusion" at the molecular level so as to thoroughly mix the water, especially in the shallow North Apollo Beach Embayment. Dr. Parsons also suggested that the model be run for rainy season conditions to see if the effects of vertical stratification would increase. But even if vertical stratification increased as a result of rain, salinity also would be expected to decrease. The scenario modeled was "worst case." Dr. Parsons also suggested the use of a range of temperatures for the combined heat/salinity plume instead of an average temperature. However, he conceded that it was not inappropriate to use average temperature. Instead, he would have liked to have seen the model run for a range of temperatures to see if the model was sensitive to temperature differences so as to increase his confidence in the results. Dr. Parson's testimony focused on the near-field model. His only comment on the far-field model was that he thought it should have used the out-puts from the near-field model (as the near-field used the outputs). Scott Herber SOBAC offered no direct testimony on the impact of the Desal Facility discharge on seagrasses in Tampa Bay. The testimony of Steve Herber, a doctoral student at the Florida Institute of Technology, related to the vulnerability of seagrasses, in general, to changes in salinity. However, Mr. Herber had no specific knowledge of the seagrasses present in Tampa Bay and had not performed or reviewed any scientific studies upon which his opinion could be based. He reached no conclusions about the specific permits at issue in this proceeding, nor about the effect of the Desal Facility on seagrasses in Tampa Bay. In contrast to Mr. Herber, the testimony of TBD's expert, Robin Lewis, and SWFWMD's expert, Dr. David Tomasko, provided detailed information about the seagrasses located in Tampa Bay. Both have studied seagrasses in Tampa Bay for many years and have been involved in mapping seagrass distribution in a variety of bays and estuaries along the west coast of Florida. Dr. Tomasko criticized witnesses for SOBAC who attempted to draw conclusions about Tampa Bay based on studies of other bays and estuaries because each bay has unique characteristics that cannot be extrapolated from studies of other bays. Dr. Tomasko and Lewis testified that seagrasses in Tampa Bay are becoming more abundant, that dissolved oxygen levels are increasing, and that water clarity in Tampa Bay is also improving. Dr. Mishra Dr. Satya Mishra was called by SOBAC as an expert in statistics. He is not an expert in the discrete field of environmental statistics. He has never been involved in the development of a biological monitoring program and could not provide an opinion regarding what would be an adequate sample size for this permit. He essentially expressed the general opinions that for purposes of predictive statistical analysis: random sampling is preferred; statistical reliability increases with the number of samples; and 95 percent reliability is acceptable. Dr. Mishra performed no statistical analysis in this case and could not conclude that the sampling provided in the proposed permit would not be random. Ron Chandler Ron Chandler, a marketing representative for Yellow Springs Instrument Corporation (YSI), simply testified for SOBAC regarding the availability of certain types of continuous monitoring devices. He did not offer any opinions regarding whether or not reasonable assurance required continuous monitoring of any specific parameter or any monitoring different from or in addition to what is proposed in TBD's proposed permit. John Yoho SOBAC called John Yoho as a financial and insurance expert to criticize the terms of an agreement by TBD, TBW, and DEP to settle Hillsborough County's request for an administrative hearing (DOAH Case No. 01-1950). This agreement is contained in TBD Ex. 470. But Yoho admitted that he had no knowledge regarding what is required to obtain an NPDES permit in terms of financial assurances. He also indicated that none of his testimony should be understood as relating in any way to financial assurances required for such a permit to be issued. Alleged Improper Purpose The evidence did not prove that SOBAC participated in DOAH Case No. 01-2720 for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of TEC's permit modification applications. To the contrary, the evidence was that SOBAC participated in this proceeding in an attempt to raise justifiable issues arising from the peculiarities of the relationship of TEC's permit modification application to TBD's permit application. Although SOBAC suffered adverse legal rulings that prevented it from pursuing many of the issues it sought to have adjudicated on TEC's permit modification application, it continued to pursue issues as to the TBD permit application which, if successful, could require action to be taken on property controlled by TEC and, arguably, could require further modification of TEC's permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: (1) issuing the proposed permit number FL0186813-001-IWIS, as set forth in TBD Ex. 203 with the addition of the two permit conditions specified in TBD Ex. 470; (2) issuing proposed permit modification number FL0000817-003-IWIS, as set forth in TBD Ex. 225; and (3) denying TEC's request for attorney's fees and costs from SOBAC under Section 120.595(1). Jurisdiction is reserved to enter an order on TBD's Motion for Sanctions filed on August 13, 2001, regarding SOBAC expert Ralph Huddleston. DONE AND ENTERED this 17th day of October, 2001, in Tallahassee, Leon County, Florida. __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 William S. Bilenky, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604 Ralf G. Brookes, Esquire Morgan & Hendrick 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904-9604 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761-3930 Lawrence N. Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Joseph D. Richards, Esquire Pasco County Attorney's Office 7530 Little Road, Suite 340 New Port Richey, Florida 34654-5598 Cathy M. Sellers, Esquire Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 118 North Gadsden Street Tallahassee, Florida 32301-1508 Linda Loomis Shelley, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River. Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant. After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved: Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code. Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code. Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and Hudson's inability to meet a minimum dissolved oxygen level of 1.5 mg/1 at any time or place. Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone. Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone. On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions: That the variance be in effect for a period of not ore than 24 months. That Hudson study alternative discharge and monitoring systems with details and scope of the studies to be approved prior to the effective date of the variance. That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement. That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced. Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra. Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency. At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson. Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available. Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state. Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body. Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times. There is no practicable technology currently available which would enable Hudson to meet Class III water standards. Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively. Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation. In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits. If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy. The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
Findings Of Fact Respondent, International Paper Realty Corporation, ("IPR" hereafter) is the developer of a proposed residential development located In Panama City. As part of this development, IPR proposed to do some dredge and fill work on its property requiring a permit from the Department of Environmental Regulation ("DER hereafter). On November 5, 1976, IPR submitted an application for approval of a construction, dredge and fill permit to DER. On December 7, 1976 DER requested further information regarding (a) cross-sectional areas and volumes to be dredged; (b) details of Proposed drainage structures; and (c) data regarding the retention of runoff. On January 4, 1977 IPR submitted to DER the information requested by Its letter of December 7, 1976. On January 7, 1977 DER requested further information from IPR pertaining to the overall topography of the area and information pertaining to the dominant vegetation. On January 20th and January 24th, 1977 IPR submitted the information requested by DER on January 7, 1977. On February 9, 1977 DER requested from IPR further information regarding clarification of the computation of 1.6 inches of rainfall volume and a request regarding pollutional loads that could be discharged to the state waters of Robison Bayou or North Bay. On February 17, 1977 and on March 8, 1977 conferences were held by DER with IPR, and representatives from other affected state and local regulatory agencies to review the concern of DER relative to the original permit application. On April 29, 1977 IPR submitted to DER the first modification of its original application of November 1976 which incorporated all of the recommended changes suggested by the regulatory agencies at the conference meetings. Included with this submission were charts, figures and diagrams indicating the proposed work and a hydrological design report dealing with the overall project. On May 16, 1977 IPR met with DER to discuss In detail the permit application as modified on April 29, 1977. On May 18, 1977 DER requested further information from IPR regarding water quality background, a monitoring program, computation of the anticipated dredge material and clarification of slide slopes of the proposed lakes and pond construction. On May 23, 1977 IPR submitted to DER its response to the requested information of May 18, 1977. This response dealt with the anticipated volumes of excavation; anticipated water pollutant load; and the clarification regarding slide slopes of the ponds and lakes. On June 8, 1977 IPR received from DER a request for further information regarding the slide slopes, a recommended monitoring program and specific information regarding background water quality data. On July 5, 1977 IPR responded to DER's request of June 8, 1977 and submitted with that response the water quality data taken from locations in Robison Bayou and North Bay. On August 5 and August 31, 1977 conferences were held by DER with IPR, as well as other involved state and regulatory agencies, and as a result of this meeting it was determined that the permit application should be further modified. On September 14, 1977 IPR submitted to DER a second modification to the original application; and the application as modified, provided for dredging approximately 43,500 cubic yards in an area adjacent to North Hay and Robison Bayou, in order to create an approximately 6 acre residential lake connected via culverts to Robison Bayou and to deepen an existing lake and pond connecting to North Bay. All dredging would be to -3 feet mean sea level. Approximately 40 cubic yards would be dredged in North Bay to increase water circulation into the existing lake. Approximately 1000 cubic yards would be removed to deepen the existing 2 acre pond, with the remaining material removed from the two lakes. Drainage has been designed to maximize detention and thereby discourage direct discharge of stormwater runoff into these lakes. The existing lake will provide both freshwater and saltwater systems by means of a berm across the middle of the lake, with only the North portion open to North Bay via the existing pond. The project area, approximately 90 acres in size, will accommodate proposed construction of up to 534 dwellings, including streets, recreational facilities, and electrical, water and sewer systems. On September 20, 1977 DER requested that IPR publish the required public notice in the local newspaper in that the application was now deemed complete by DER. The application, as modified, was filed herein as Joint Exhibit 1. The testimony concerning the various requests for information from IPR by DER and the response by IPR to DER were submitted by DER's witness Jean Tolman and the exhibits of DER accepted into evidence in this proceeding. Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, promulgated thereunder, set forth the procedural requirements and standards applicable to a construction, dredge and fill permit. DER is charged with the responsibility of determining whether the applicant has provided reasonable assurance that the activity to be permitted will not violate the provisions of Chapter 403 or the rules promulgated thereunder. Upon making this determination DER issues the applicant a permit and, if applicable, issues a certification to the Corp. of Engineers pursuant to Public Law 92-500. As outlined above, extensive proceedings were held by DER which ultimately resulted in DER determining that IPR's application met the applicable environmental standards and a permit should issue. (DER's memorandum of January 30, 1978 filed herein and the testimony of Jean Tolman) . However, prior to the actual issuance of the permit, Petitioner, Joe Tannenhill, and petitioners Mark E. Jones and Charles E. Whitehead filed petitions to intervene herein. DER requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the necessary proceedings involving both petitions and a hearing officer was so assigned pursuant to Chapter 120.57(1), Florida Statutes. Petitioner Joe Tannenhill's petition alleged that the proposed DER action of issuing a permit to IPR would affect his personal property rights. Petitioners Mark E. Jones and Charles E. Whitehead filed petitions which alleged that IPR's application failed to comply with the requirements of Chapter 380 and Chapter 403, Florida Statutes, and certain noted provisions of Chapter 17-4 Florida Administrative Code. During a prehearing conference on February 10, 1978, IPR and DER moved to dismiss Tannenhill from the proceedings. Grounds offered in support of the motion were that his allegation that the permitted activity would affect his personal property rights did not involve an issue over which DER has jurisdiction and therefore if true would not be material to the issue of whether the permit should be issued to IPR by DER. These grounds were accepted and by oral order of February 10, 1978 Tannenhill was dismissed from the proceeding. Also during the same prehearing conference IPR and DER moved to strike all allegations in the petition filed by Mark E. Jones and Charles A. Whitehead pertaining to Chapter 380 of the Florida Statutes. Grounds offered in support of the motion were that the provisions of Chapter 380, Florida Statutes, had no application to and in no way pertained to a construction, dredge and fill permit filed with DER. These grounds were accepted and by oral order entered on February 10, 1978 the provisions of Chapter 380 were deemed immaterial to this proceeding and all allegations pertaining thereto were stricken from the pleading filed. Petitioners Mark E. Jones and Charles A. Whitehead presented their cases jointly at the final hearing. They called the following witnesses: James Walters (T16-36); Charles A. Whitehead (T37-43); Mark E. Jones (43-52); Miss Carol Daugherty (T52-74) Dr. John Taylor (T75-135); and Ed McKay (T135-140). Respondent DER called as its only witness Jean Tolman (T140-281). Respondent IPR did not present any witnesses. Mr. Walters presented a series of slides (Exhibits 1-12) of the subject property, adjacent property and adjoining water bodies. Mr. Whitehead testified that he owns his home adjoining Robison Bayou and that it was in his best interests to keep the quality of the water therein good. He specifically stated, however, that he had no knowledge as to how IPR's proposed project would affect the water quality of Robison Bayou. (P 41) Mr. Jones testified that he owns a home near Robison Bayou and that it was in his best interest to prevent the water therein from getting polluted. He did not testify that IPR's project would affect Robison Bayou but only if it did that it would affect his financial interest in his property. The testimony of Mr. Walters, Mr. Whitehead, and Mr. Jones did not relate in any probative way to the issue in this proceeding. Miss Carol Daugherty was qualified as an expert to make chemical analysis of water. She testified that Dr. Jack Taylor brought some water samples to her and she performed a chemical analysis of same. The results of her test (Exhibit 13) indicated that the water contained a high count of fecal coliform bacteria which indicated to her that improperly treated sewage was in the water. (T 67) She did not testify that IPR was responsible for the bacteria found in the water she analyzed or that the permit which is the subject of this proceeding would authorize an activity which would increase the bacteria in the waters involved. Simply put, Miss Daugherty's testimony proved, if anything, that on the day the samples were taken, improperly treated sewage had been discharged into the waters involved. As to the issue in this proceeding - whether DER has been reasonably assured the the activity to be permitted will not violate water quality standards - the testimony of Miss Daugherty has no probative value. Dr. Taylor was qualified as an expert in marine ecology. He testified that he obtained water samples at high and low tides from five locations In Robison Bayou on February 16. (P 84-85) To determine its water quality for that day he delivered the samples to Miss Daugherty (P 88). As a result of the testing done by Miss Daugherty, Dr. Taylor testified that he was concerned with the level of total nitrogen and phosphorus in the samples but admitted that DER has no prescribed limit for either. (T 89) He further stated that he was concerned with the fecal strep levels found in the samples tested by Miss Daugherty but admitted "there is no standard as yet established for fecal strep" (T 98). Based solely on samples taken on one day, Dr. Taylor testified that he believes that Robison Bayou is overautrified and contaminated with harmful bacteria. (P 99) It was his opinion that this condition of Robison Bayou was caused by improperly treated sewage being discharged therein from a trailer park and drainage from a hospital and an industrial park nearby. (T 114-115) He did not testify that IPR was in any way responsible for the condition of Robison Bayou as he found it on February 16, 1978. Although Dr. Taylor expressed concern respecting the runoff from IPR's proposed development, he admitted that any analysis of drainage from the development "would be a matter of conjecture." (T 101) He further admitted that IPR's method for treating stormwater runoff "probably addressed it in as good a way as you can." (P117) His only exception to this admission was that he would have planned the project to have all runoff going into North Bay rather than Robison Bayou. It is obvious from this statement that Dr. Taylor is not concerned with the quality of the waters that might runoff the proposed project into waters of the state but is really only concerned with the existing quality of the body of water to receive the runoff, Robison Bayou. The testimony of Dr. Taylor might have some value in an enforcement proceeding involving parties who are in fact degrading Robison Bayou. Here, however, the issue is whether DER has been provided reasonable assurance that the activity to be permitted will not violate water quality standards. As to this Issue, Dr. Taylor's testimony has no probative value. DER is charged with the responsibility of evaluating the impact of a proposed construction, dredge and fill permit on waters of the State. Section 403.021(2), Florida Statutes. The major considerations in this evaluation are whether the quality of water will be degraded by (1) the destruction of resources which maintain water quality, and (2) the discharging of harmful materials into the environment. No testimony was offered by Petitioners that the activity of IPR proposed to be permitted by DER would destroy resources which maintain water quality or that the runoff from the project will discharge harmful materials into the waters of the State. Petitioners appeared to support its position in this proceeding solely on the basis of the water quality of Robison Bayou. However, the standards to be applied to IPR's permit do not concern themselves with the water quality of Robison Bayou but apply only to the quality of the water to be discharged to Robison Bayou. The testimony of DER's witness, Jean Tolman, was uncontradicted that IPR's application, as modified, affirmatively provided reasonable assurance to DER that the short-term and long-term effects of the permitted activity will not violate water quality standards of the State. Ms. Tolman is presently head of DER's program on water resource restoration and preservation. Prior to that, however, she was head of the standard permitting section involving dredge and fill permitting for DER and testified that she personally reviewed the application in question in that capacity. Ms. Tolman was accepted as an expert qualified to answer the questions and express the opinions which were propounded to her and expressed by her. She testified in great detail concerning the original application on November 5, 1976; the many requests by DER for additional information and the submission of same by IPR; the many meetings with the applicant, DER and other affected state and federal agencies; and the modifications to the original application submitted on April 29, 1977, and September 14, 1977. Her uncontradicted testimony was that the application, subsequent submittals and subsequent modifications were adequate and complete to form the basis for a determination by DER. Based on all of this information, and the expertise of DER, Ms. Tolman testified that the application as revised would in fact meet the water quality standards pertaining thereto. She did state that DER would require as a condition to issuance of the permit that IPR submit a detailed drainage plan prior to actual construction.
Conclusions IPR's application for a construction, dredge and fill permit originally submitted to DER on November 5, 1976, and subsequently modified on April 29, 1977, and September 4, 1977, was an adequate and complete application sufficient to form the basis for a determination by DER on whether or not the permit should issue. Testimony presented at the hearing by the witnesses for Petitioners related primarily to the water quality of Robison Bayou on February 16, 1978. Admittedly on the day in question the level of fecal coliform bacteria found in the waters of Robison Bayou exceeded that established by DFR for Class II waters. However, no testimony presented at the hearing indicated that Respondent IPR was responsible for this fact nor did any testimony presented at this hearing Indicate that the activity to be permitted will increase the focal coliform bacteria level in Robison Bayou. There was no testimony presented at the hearing to indicate that the dredge and fill activity proposed would in fact violate the water quality standards established by Chapter 403, Florida Statutes, or the rules promulgated by DER thereunder. Although is is clear that there will be some stormwater runoff from IPR's proposed residential development once constructed, there was no testimony offered to indicate that this stormwater runoff would violate the water quality standards of Chapter 403 or the rules promulgated by DER thereunder. There was testimony offered by Ms. Tolman that it was her personal opinion and the determination by DER that in fact the stormwater runoff would not violate the water quality standards.
