Findings Of Fact During 1990, Respondent/Applicant, City of Lynn Haven, filed several applications with the Respondent, Department of Environmental Regulation, seeking the issuance of several permits to build a wastewater collection system and a two million gallon per day advanced wastewater treatment (AWT) plant. The proposed facility is intended to replace the wastewater treatment facility currently being used by the City of Lynn Haven. After a review of the applications the Department proposed several Intents to Issue covering the different aspects of the proposed projects. The Intents to Issue included: A) a variance and dredge and fill permit, pursuant to Sections 403.201, 403.918, 403.919, Florida Statutes, and Rule 17-312, Florida Administrative Code, authorizing a subaqueous crossing of North Bay (Class II waters) and installation of a force main (permit #031716641), B) a collection system permit, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-600 and 17-604, Florida Administrative Code, for the installation of approximately 11 miles of pipe from North Bay to the proposed treatment plant, C) a dredge and fill permit #031785181, pursuant to Sections 403.918, 403.919, Florida Statutes, and Rules 17-4, 17-312, Florida Administrative Code, authorizing 10 incidental wetland crossings associated with the collection system, and, D) a construction permit #DC03-178814, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-302, 17-600 and 17-611, Florida Administrative Code, authorizing the construction of a 2.0 mgd wastewater treatment plant. Sand Hill Community Improvement Association challenged the Department's Intents to Issue. The Sand Hill Community Improvement Association (Sand Hill) is an association composed of 74 formal members plus numerous supporters. Both members and supporters are residents who live near the site of the proposed Lynn Haven sewage treatment plant. They are sufficiently close to the plant site that construction of the proposed project could impact their property. The members are very concerned about any threat of pollution to the aquifer from the proposed plant since all of the members are dependent on private wells for their drinking water. Additionally, members of the association use the proposed site, as well as the associated wetlands, Burnt Mill Creek and the nearby lakes, for a variety of recreational purposes, including hunting, fishing, hiking, bird-watching, boating and swimming. Given these facts, the Association has standing to challenge the Department's Intents to Issue involved in this case. The City of Lynn Haven is located on a peninsular section of the south shore of North Bay and, except for its connection to the land, is surrounded by environmentally sensitive Class II or Class I waters. Lynn Haven's existing wastewater treatment plant was poorly designed, has not worked properly, and is old and outdated. The plant is permitted to treat up to 950,000 gallons per day. However, the existing plant is currently exceeding its originally permitted treatment limits and is treating in excess of 1,200,000 gallons per day. The sewage only receives secondary treatment, Secondary treatment is the minimum state standard for wastewater treatment. The secondarily treated wastewater is pumped several miles to a spray irrigation site located in the eastern portion of the City. The sprayfield site has never worked properly due to a high groundwater table and a confining layer of soil, both of which prevent the effluent from percolating into the ground. Because the sewage effluent cannot percolate into the ground, the existing operation frequently results in direct runoff into a ditch which empties into North Bay, a Class II waterbody. Such discharge of wastewater effluent into Class II waters is prohibited by Department regulations. 1/ At this time, the existing wastewater treatment facility is in violation of both DER and EPA standards and is under enforcement action by both agencies. The existing facility is currently operating without a permit and the Department has advised Lynn Haven that the existing facility as it now operates can not be permitted. In fact, all the parties agree that the City is in serious need of a wastewater treatment facility which works and does not pollute the environment. However, the parties disagree over the method by which proper wastewater treatment could be accomplished by Lynn Haven. Since 1972, the City, through various consultants and with the aid of DER, has reviewed approximately 40 alternatives for wastewater disposal. After this review, the City of Lynn Haven selected the alternative which is the subject of this administrative hearing. The alternative selected by the City of Lynn Haven consists of the construction of a proposed advanced wastewater treatment (AWT) plant and distribution system. The new plant will be on a 640 acre parcel of property located approximately 12 miles north of Lynn Haven. The location of the new plant will necessitate the rerouting of the wastewater from the old plant to the new plant by construction of a new transmission line approximately 12 miles north of the City across North Bay and parallel along State Road 77. 2/ The treatment process proposed for use in the new AWT plant is known as the AO2 process. The process is patented. The AO2 treatment process primarily consists of biological treatment with settling and filtration. The treatment process also includes a chemical backup treatment to further reduce phosphorus if necessary. The evidence demonstrated that this type of facility has been permitted by the Department in at least five other wastewater facilities throughout the state. The treatment facility will have a two million gallon per day, lined holding pond on site for the purposes of holding improperly treated wastewater for recirculation through the proposed facility. Any excess sludge generated by this treatment process would be routed to lined, vacuum-assisted, sludge drying beds. The sludge would then be transported offsite to a permitted landfill for disposal. The evidence demonstrated that this treatment process would not produce any objectionable odors. Once the wastewater is treated, it will be disinfected by chlorination to eliminate pathogens. The chlorination process is expected to meet state standards. After chlorination, a dechlorination process would occur to remove any chlorine residuals which would have a harmful affect on the environment. The treated wastewater would then be re-aerated and discharged through the distribution system indirectly into a wetland located on the 640 acre parcel of property. The quality of the treated wastewater is expected to meet the advanced wastewater treatment (AWT) standards. These standards are five milligrams per liter total suspended solids (T.S.S.), five milligrams per liter BOD, three milligrams per liter nitrogen (N), one milligram per liter phophorus (P). Ph will be in the range of six to eight units on an average annual basis and can be adjusted up or down if necessary to meet the ph levels of the ecology into which the wastewater ultimately flows. This effluent quality is approximately five times cleaner than secondarily treated effluent. Additionally, as a condition of the draft permit, the proposed facility would be operated by a state-licensed operator and would be routinely monitored to insure that the treated wastewater effluent meets advanced wastewater treatment standards. Given these facts, the evidence demonstrated that the applicant has supplied reasonable assurances that the plant will perform as represented and that the effluent will meet the state standards for advanced wastewater treatment. As indicated earlier, the site for the proposed AWT plant contains approximately 640 acres and is located approximately 12 miles north of Lynn Haven in an area known locally as the Sand Hills. The City specifically purchased this parcel of property for the construction of the proposed wastewater treatment plant. The plant itself would be located in the northeast corner of the property. The 640 acre site was previously used for silviculture. The entire area is currently planted in pines except for a low area that is dominated by a pristine, woody wetland system of titi. The titi wetland is approximately 212 acres in size and generally runs through the center of the property from the northeast to the southwest. The wetland is low in acidity, with an estimated ph between 4 and 5. The site consists of hilly, mineralized soils. The soils within the forested wetland are organic in nature. Based on the evidence at the hearing, there does not appear to be any significant confining layers of soil which would prevent the treated wastewater from percolating in the soils and draining towards the wetland and ultimately into Burnt Mill Creek, a Class III waterbody. Once the effluent leaves the plant, it would go through a distribution system. The proposed distribution system will consist of six, 500 foot long, 12 inch diameter perforated pipes. Each 500 foot section of pipe has 100 one and one-half inch orifices which will discharge the treated effluent onto an eight foot wide concrete pad. This concrete pad will dissipate the effluent's energy, prevent erosion at the orifice site and insure that the effluent sheetflows onto and eventually into the sandy soils of the plant site and ultimately into the receiving wetland. The distribution pipes are located around the east, north and western portions of the receiving wetland and are variously set back from the receiving wetland approximately 80 to 200 feet. The distribution system is designed with valves to allow for routing of flow to different branches of the system if it is determined through long term monitoring that there is a need to allow for any of the receiving wetland to dry out. None of the distribution branches are located in any jurisdictional wetlands of the State of Florida. The receiving wetland will receive a hydraulic loading rate of approximately 1.8 inches per week once the new advanced wastewater treatment plant is operating at capacity. Both the surface waters and groundwaters on the 640 acre parcel flow from northeast to southwest across the property. The evidence clearly demonstrated that any treated wastewater discharged on the site would move down hill by surface or groundwater flows towards the wetlands in the central portion of the property and eventually discharge into Burnt Mill Creek located at the southwest corner of the parcel. The evidence demonstrated that it would be highly unlikely for the surface or groundwater to move in any other direction and would be unlikely for the surface or groundwater to move towards any residents located to the north or east of this parcel. Evidence of the topography and its relatively sharp gradient clearly demonstrated that the treated wastewater discharged in the northeast corner of this site would not result in any significant still water ponding and would exit the site at the southwest corner of the property in approximately 14 hours. The evidence did demonstrate that, depending on the wetness of the weather, there may likely be certain times of the year when a flowing type of ponding would occur. However, this wet weather ponding was not shown to be of a duration which would impact to a significant degree on the flora and fauna of the area or increase the number of disease bearing mosquitoes in the area. As indicated earlier the treated effluent from the proposed AWT plant will flow into Burnt Mill Creek. Burnt Mill Creek will ultimately carry the treated wastewater approximately 11 miles down stream to North Bay. The City can directly discharge up to two million gallons per day of AWT water into Burnt Mill Creek without violating state water quality standards. Therefore, the volume of wastewater discharged into Burnt Mill Creek should not have significant impacts on surface and ground water quality. Moreover, Chapter 17-611, Florida Administrative Code, authorizes the discharge of up to 2 inches per week to receiving wetlands provided wastewater is treated to AWT standards. The evidence demonstrated that this rule was developed as an experimental effort to determine if wetlands could be appropriate areas for wastewater effluent to be either discharged or treated. These state limits were intended to be very conservative limits and were designed to insure that the impacts to receiving wetlands would be minimal. The evidence and testimony demonstrated that the receiving wetland system involved in this case should not be adversely impacted beyond those limits set forth in Section 17-611.500, Florida Administrative Code, for flora, fauna, macroinvertebrates, fish or vegetation and will meet all standards set forth in Chapter 17-611, Florida Administrative Code. However, it should be noted that the wetland/wastewater program is highly experimental and very little is known about the actual impacts of wetland/wastewater systems since facilities similar to the one proposed by Lynn Haven have not yet been placed in service. The evidence did show that there would be some long term impacts to flora and fauna in the wetland area primarily due to ponding, changed ph and the introduction of nutrients and pollution in the form of the effluent. However, the regulation does allow for some change within a receiving wetland and the evidence did not demonstrate that these changes would be significant or detrimental. Petitioners' own witness concluded that other deep wetland treatment systems are doing a very good job in meeting state water quality standards. Although Petitioners' expert noted potentially adverse impacts to flora and fauna from other wastewater treatment systems, these other systems were slow moving, impoundment-type systems that are not similar to the wastewater/wetlands system proposed by the City of Lynn Haven. The Lynn Haven system is designed for percolation and sheetflow, not ponding. Though there should be some expected changes, no evidence was provided that the receiving wetlands for the Lynn Haven facility would be affected to the extent there would be violations of any standard as set forth in Chapter 17-611, Florida Administrative Code. In essence, the legislature has determined that such experimentation with wetland areas is appropriate, albeit, even with the conservative limits of DER's rule, may prove to be a mistake. This facility is designed to fit within that rule and in fact is probably the best technology available for use in a wetland/wastewater situation. Finally, in order to avoid any potential impacts on the area which may over time become significant an approved monitoring program for surface water quality and affects on flora and fauna, as well as a groundwater monitoring program are required as conditions of the permit. The groundwater monitoring program has been designed to monitor any potential long term impacts to groundwater. With these protections there should not be any significant adverse impacts to surface or groundwater quality and the applicant is entitled to a construction permit for the AWT plant and distribution system. Lynn Haven's sewage would reach the proposed AWT plant through a transmission line. The transmission line would run from Lynn Haven's existing wastewater treatment plant across North Bay and through the unincorporated area of South Port. The Southport area is not sewered and utilizes individual septic tanks for its sewage. The transmission line would be constructed entirely in state road right-of-way. The line would terminate at the 640 acre site described above. A new, variable speed pumping station would be constructed adjacent to the old wastewater treatment plant. From this pump station, a 24 inch line would be constructed on City right-of-way up to the south shore of North Bay. At this point, the transmission line would be reduced in size to 20 inches and would be embedded approximately three feet below the Bay bottom. An additional variable speed pumping station would be located approximately half way along the 12 mile route of the transmission line to insure adequate pressure to pump wastewater to the new wastewater treatment plant. The pumps are to be employed to insure that the wastewater is continuously pumped uphill to the new site so that waste does not set, become septic, and create odor problems. The pumps are equipped to provide for chemical control of odor if necessary. Also, as a condition of the permit, the pumping stations are required to have backup power supplies should power be lost to the stations. The pumping stations and backup power supplies are to be tested monthly and the pumps are required to be continuously monitored by radio telemetry to insure they are operating properly. Additionally, the City of Lynn Haven will be required, as a condition of the permit, to visually inspect the entire length of the wastewater transmission line three times per day. The portion of the transmission line which would cross North Bay is approximately 3000 feet in length and would be constructed of high density polyethylene pipe (HDPE) with a wall thickness of one and one-half inches. HDPE pipe is used to transport materials such as hazardous wastes where leakage is not permissible. This type of pipe is virtually inert in that it is highly resistant to corrosion and other chemical reactions. It is also impact resistant and has a very high tensile strength. The pipe comes in 40 foot segments and is heat welded (fused) together. This type of joint significantly reduces the chance of any leakage. In fact, leakage around pipe joints is more likely to occur with other types of pipe and pipe connections. HDPE pipe is currently carrying wastewater across Watson Bayou in Bay County, Florida. 3/ There have been no reported problems with leaks or breaks occurring in the pipe crossing Watson Bayou. Given these facts, the probability of the proposed HDPE pipe leaking or breaking is extremely low, albeit not impossible, and such pipe appears to be the best material available for constructing a wastewater treatment transmission line across protected waters of the State. As a condition of the construction permit, the portion of the transmission line crossing North Bay will be required to have isolation valves at each end so that the pipe may be completely isolated in the event that it needs repair. The underwater portion of the line would be visually inspected by a diver twice per year and the line would be pressure tested before being placed into service. Additionally, pressure tests would be performed once a year. The construction permit also requires Lynn Haven to periodically inject dye into the proposed transmission line to check for any small leaks that may not otherwise be detected. Finally, the HDPE pipe would also be equipped so that television cameras could be inserted into the pipe to routinely inspect the interior of the pipe. In the event the HDPE portion of the transmission line would need to be repaired, the line could be immediately, temporarily repaired by a dresser coupling. A permanent repair could then be made in less than 24 hours once the material and equipment were staged at the site. The City intends to locally stockpile all necessary parts and equipment to effect any required repair to prevent any delay beyond four days. Permanent repairs would be accomplished by floating the line to the surface. The area needing repair would be cut out and a new section would be put in place by heat fusion. The line would then be pressure tested to insure the absence of leaks and placed back into service. During this process, the line would be taken out of service by the isolation valves and flow would be diverted to the eight million gallon holding ponds at the City of Lynn Haven's existing facility. These holding ponds can hold four days worth of wastewater from the City of Lynn Haven. Lynn Haven is required, as a condition of the construction permit, to have this reserve capacity as well as have a contractor on standby to make any repairs in the event such repairs are necessary. All of the technical specifications for the transmission system and the operating conditions imposed on it are designed to insure that the system does not fail or develop any leaks which could impact receiving waters, including North Bay. Given the permit conditions, the required inspections for leaks, the sound engineering design and quick repair methods proposed, the evidence demonstrated that the probability of any leak occurring in the portion of the transmission line crossing North Bay is extremely low and that if such a leak does occur any potential harm to the environment will likely be limited and quickly eliminated. The evidence demonstrated that the design of the transmission line and permit conditions provide reasonable assurances that the transmission line will meet or exceed the Department standards set forth in Chapter 17-604, Florida Administrative Code. Therefore, the applicant has provided reasonable assurances that the transmission line/collection system will not violate Department standards or rules and the applicant is entitled to a permit (permit #CS03-178910) for the proposed collection system. In addition to requiring a construction permit/collection system permit for the wastewater transmission line, the line will also require dredge and fill permits and a variance for crossing waters of the state. There are ten incidental crossings of state waters and one major crossing o f North Bay. Of the ten incidental crossings, two are over small creeks (Scurlock and Little Burnt Mill) These two incidental creek crossings will be accomplished by placing the transmission line (ductile iron pipe) on top of pilings placed in the water. Best management practices such as turbidity curtains and other erosion control practices are proposed and required by the permit to minimize construction impacts on water quality. The only impacts to wetland resources would be from the placement of the pilings. The evidence demonstrated that any impact would be minimal and not significant. The evidence did not demonstrate that the aerial crossings would have any long term water quality or environmental impacts. The remaining eight incidental crossings of waters of the state consist of small, seasonally wet ditches which would be traversed by trenching and burying the transmission line. Again, turbidity controls such as curtains and hay bales would be employed to protect water quality. The evidence did not demonstrate that any significant long term or short term impacts to resources of the state would occur. The evidence did demonstrate that the applicant has provided reasonable assurances that water quality standards would not be violated in regards to these 10 incidental water crossings. Likewise, the evidence demonstrated that the construction of these 10 incidental water crossings would not be contrary to the public interest. Therefore, the applicant is entitled to issuance of a dredge and fill permit (permit #031785181) for these 10 water crossing. However, a much harder question arises in relation to the dredge and fill permit and the variance required for the 3,000 foot segment of the wastewater transmission line which crosses North Bay. Pursuant to Rule 17- 312.080(7), Florida Administrative Code, permits for dredging and filling activity directly in Class II waters which are approved for shellfish harvesting by the Department of Natural Resources (DNR) shall not be issued. The reason for the rule is that any pollution caused by dredging and filling and, as in this case, the permanent placement of a sewage pipe in food producing waters could potentially have catastrophic effects on more than just the environment but on local employment in the shellfish industry and the quality of food available to the State. Put simply, the Department has determined by enacting its Rule that the public interest in food producing waters far outweighs any other consideration or criteria under Sections 403.918 and 403.919, Florida Statutes, in determining whether dredging and filling should take place in Class II, shellfish waters. In other words, it is not in the best interest of the public to allow dredging and filling so that a pipe carrying raw sewage can be placed in shellfishing waters. However, irrespective of this determination, the Department believes that, pursuant to Section 403.201(1)(c), Florida Statutes, it may grant a variance from its rules to relieve a hardship. As indicated earlier, North Bay is a Class II waterbody, conditionally approved for shellfishing. North Bay, therefore, falls within the Rule's prohibition against dredging and filling in Class II waters and the City is required to demonstrate the presence of a hardship in order to vary the Rule prohibition and obtain a dredge and fill permit for the North Bay crossing. On issues involving variances, the Department employs a two step analysis. The first part of the analysis is whether a hardship is present and the second is whether, if the variance were granted, would it result in permanent closure of Class II shellfish waters. The Department correctly recognizes that the question of whether a hardship exists is a question of fact and is determined on a case-by-case basis. Surprisingly, in a kind of "what we don't know can't hurt" posture the Department reviews a request for a variance standing alone based on the application as it is presented and does not require analyses of other possible alternatives to the granting of a variance. However, the existence of any alternatives, costs of any alternatives, timeliness of any alternatives, problems with any alternatives, whether an alternative represents a short term or long term solution to a given problem and the implementability of any of the alternatives are all factors utilized by the Department in determining whether or not to grant a variance. The Department's policy of non- review makes no sense, either factually or statutorily, when the Department is faced with varying a prohibition it created in its own rules. Similarly, the Department's policy of not requiring other alternatives to be examined before granting a variance goes against the fact that an applicant has the burden to establish entitlement to a permit and, in the case of a hardship variance, that a hardship exists because reasonable alternatives to granting a variance are not available. 4/ Likewise, the second part of the Department's hardship analysis relating to the permanent closure of shellfishing waters makes no sense given the fact that a non-permanent closure of shellfishing waters may have the same or just as serious effect on employment in the shellfishing industry, the loss of income due to an inability to earn a living in that industry and health risks posed by contaminated seafood. Temporary loss of income or a livelihood can, for all practical purposes, have consequences to the persons directly affected by a temporary closure of shellfishing waters similar in nature those caused by the permanent closure of shellfishing waters. The same can be said for health risks posed by a contaminated food supply. Rule 17-312.080(7), Florida Administrative Code, does not contain any exceptions for the temporary closure of shellfish waters. Nor is the rule limited to instances of permanent closure. Permanent closure is simpy not required in order to support a hardship under Section 403.201, Florida Statutes. Moreover, neither step in the Department's two-step analysis is included in any Rule promulgated by the Department. 5/ Without such a Rule, it is incumbent upon the Department or the applicant to demonstrate the underpinnings for this non-rule policy. No such evidence was presented at the hearing. In fact, the evidence presented at the hearing affirmatively demonstrated that the Department's non-rule policy violated both its own rules and the statute under which it is trying to proceed. As indicated, the issue of hardship is a question of fact and involves a weighing of all the facts and cicumstances involved in this project. In this case, there are shellfishing areas located close to the proposed location of the transmission line. North Bay is sometimes closed to shellfish harvesting by the Department of Natural Resources. These closures generally occur during wet weather conditions and are due to stormwater runoff and the failure of septic tanks in Southport. 6/ Additionally the current Lynn Haven system also contributes to the closure of North Bay. No competent, substantial evidence was provided that issuance of the permit and variance would result in the permanent closure of shellfish waters. The location of the proposed transmission line would be several hundred feet west of the Bailey Bridge embedded in the Bay floor. 7/ The proposed alignment of the transmission line through North Bay is in an area which is relatively biologically unproductive. The proposed placement of the transmission line avoids the few grassbeds that exist in the nearshore shallow areas except for approximately 200 square feet of grass. During construction of the line, these grasses would be removed immediately before the line is placed in a trench and then would be promptly replanted in the same area. The evidence demonstrated that the affected areas of grass should be able to reestablish itself. The evidence further demonstrated that there would not be any long term adverse impacts to these aquatic resources and there should not be any significant long term impacts on the balance of any aquatic life which may exist on the bay bottom. Water quality during construction will be protected by use of turbidity controls to control sediments. Therefore, any short term impacts on aquatic resources are likely to be insignificant. Concerns about long term adverse impacts to Class II waters are greatly reduced by the type of pipe and conditions in the permit which require that the transmission line be routinely inspected and tested to insure that there is no leakage and that in the unlikely event the line should need to be repaired, the line could be easily isolated and quickly repaired. The evidence showed that, to completely avoid Class II waters, the line could be moved several miles to the west or east of the line's proposed location or be placed over or under the Bay. If the line was moved west to the extent that it was in Class III waters, it would be over 40 miles long and would more than double the cost of the project. If the line was moved several miles to the east, it would go through the Deer Point Lake Watershed. The watershed is a Class I water supply for Bay County. Clearly, moving the line either west or east is not practical nor realistically feasible. Tunneling under North Bay would be very risky and is not technically feasible. The length of the tunnel would require steel pipe to be used. If tunneling could be done at all steel pipe would not provide the level of protection afforded by the HDPE pipe proposed by Lynn Haven. Placing the transmission line on pilings for an aerial route over North Bay is uneconomical and would create a potential hazard to navigation. Moreover, an aerial crossing would not solve any pollution problems should the transmission line leak or break and would also still involve a variance request since it would be necessary to dredge and fill in Class II waters for the placement of pilings or supports. Put simply, the evidence, showed that there was no realistic way to avoid Class II waters in North Bay given the location of the proposed wastewater treatment facility. A location which the City knew would require a hardship variance from the rule prohibition of dredging and filling in Class II, shellfishing waters. A hardship which the City created by site selection and which it hoped to overcome by strenuous permit conditions and futuristic speculative benefits to unsewered areas of the County. The existing treatment facility is operating in violation of both EPA and DER requirements, has been issued a notice of violation, is nonpermitted and is destined to be operating under a consent order. The system is hydraulically overloaded, handling approximately 1.2 million gallons per day while its rated capacity is 950,000 gallons per day. Refurbishing Lynn Haven's existing wastewater treatment facility would not be viable since the plant has outlived its useful life, is of a very poor design and probably could not be made to function within Departmental standards and water quality standards. The existing sprayfield does not function and results in overland flow of effluent which discharges to Class II waters. The high water table and presence of a semiconfining layer on the Lynn Haven peninsula virtually guarantee such discharges. Further, the plant only provides secondary treatment. Put simply, Lynn Haven needs another method of handling its sewage. The only remaining alternative to a Bay crossing is to tie into the existing Bay County system and any AWT wastewater treatment plant Bay County may build in the future. 8/ The existing Bay County system provides at most only secondary treatment. The Cherry Street facility, which is part of that system, functions essentially as a lift station rather than a treatment facility. The Military Point Lagoon portion of the system is nonpermitted and is operating under a consent order and has been the subject of enforcement action. The Department has an extensive agreement with Bay County requiring a significant and long term series of actions to deal with their wastewater treatment system. The modifications or improvements to the Bay County system to provide advanced treatment are not imminent and the final system conditions cannot now be determined as they will depend in large measure upon data and analysis remaining to be collected. Currently, the existing Bay County system processes a significant amount of industrial discharge and has a problem with phenols most likely due to industrial waste from two discreet industrial facilities in the County. 9/ However, all of Bay County's wastewater system problems are reasonably solvable and will be corrected in the near future, if they have not already been corrected. Additionally, the amount of sewage Lynn Haven would be sending into the current Bay County system probably would not significantly impact that system and its problems or the County's ability to solve those problems. The County is willing to accept Lynn Haven's sewage into its system and future AWT system. The connection into Bay County's system is a viable alternative currently in existence. Moreover, as indicated, Bay County has a long range plan to build an advanced wastewater treatment plant. As yet the plan remains "just a twinkle in the County's eye" and has not progressed to the design stage. However, this plan, of necessity, will eventually become reality in the next 5 to 10 years. The estimated cost to a Lynn Haven user for the Bay County conceptual system will be $25.00 per month in lieu of $15.00 for the proposed Lynn Haven system. These estimates are at best speculative. However, this cost estimate is not excessive given the fact that a Lynn Haven user lives in an environmentally sensitive area and a Bay County hook-up would eliminate the need to run a sewer pipe through food producing, Class II waters. 10/ Based on these facts, the evidence demonstrated that it was feasible for Lynn Haven to hook into Bay County's wastewater system without creating any more environmental impacts than that system is already experiencing and must solve and which, to a significant degree, have already been solved by Bay County. Given the existence of this alternative to crossing food producing waters and the fact that any future benefits are just as likely to be provided just as quickly by the County through AWT facilities, the applicant has failed to demonstrate the necessity for crossing North Bay and failed to demonstrate entitlement to a hardship variance for that crossing. Therefore, the applicant is not entitled to either a dredge and fill permit or variance for the proposed North Bay crossing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, recommended that the Florida Department of Environmental Regulation enter a final order issuing permit applications CS03178910, DC03178814, and 031785181, and denying the variance and permit number 031716641. RECOMMENDED this 27th day of November, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1991.
Findings Of Fact Kyle Brothers Land Company, Inc. filed its application with the Department of Environmental Regulation to excavate four canals and to unplug two canals which they had already dug within its development in Port Pine Heights located on Big Pine Key, Monroe County, Florida. The application of Kyle Brothers Land Company, Inc. was introduced as Composite Exhibit No. 1 and a plat of the proposed development was introduced as Exhibit 9. The proposed activity would be constructed on Class 3 waters as defined in Chapter 17-3, F.A.C. Test data submitted shows that the water quality of the water in the existing canals meets or exceeds the standards established in Section 17-3.09, F.A.C. The proposed canals, as well as the existing canals, are being developed as residential home sites. Two potential threats exist to the maintenance of water quality standards within the canals. The first threat is the short-term effect of increased turbidity of the waters due to the construction of the proposed activity. The second threat is the long-term effect of the increased pollution of the waters resulting from waste disposal through proposed septic tank systems to be used in the residential home sites adjoining the proposed and existing canals. The permit application appraisal, Exhibit 2, indicates that the short- term effects of increased turbidity could be controlled by the use of plugs, screens, and daily testing for turbidity and dissolved oxygen. The evidence further shows a variance in the depth of the existing canals and the two plugged canals. The two plugged canals and several of the existing canals have a depth greater than the central canal. The variance in depth permits the accumulation of debris and silt in the finger canals which under certain conditions could be stirred up and become suspended in the waters of the canals increasing the turbidity of the canals and violating the water quality standards. To prevent this from occurring these canals would have to be filled to bring them to the depth of the central canal. The long-term threat to water quality in the canals is the introduction into the canals of nutrients and chemicals attributable to surface water runoff and the proposed septic tank systems to be utilized on the residential home sites. Control of surface water runoff can be obtained by backs loping the uplands away from the canals. The control of nutrient loading associated with the septic tank systems is more complex. The Declaration of Restrictions for Port Pine Heights, Exhibit 7, recites that sewage disposal shall be by septic tank or central disposal plant. However, the plans submitted by the Applicant do not indicate any provision for establishment of a central disposal plant. Further, under the provisions of the deed restrictions there is no requirement that a resident of Port Pine Heights use a central disposal plant even if such a system were available. The current residents of Port Pine Heights currently use septic tank waste disposal systems; however, the number of current residents is substantially less than the number of residents that Port Pine Heights is designed to accommodate. The disposal of sewage by septic tanks will result in the introduction in the canal waters of partially treated effluent through exchange with subsurface waters in the porous limestone substrata present in the area. To maintain the water quality at the required level, the waste effluent from the residential development must be prevented from entering into the canal. Because of the substantial difference in the level of development existing in Port Pine Heights currently and the potential level of development, the test data and the projections based upon that data do not give reasonable assurances that the increased pollutions attributable to the use of septic tanks would not violate water-quality standards.
Recommendation Until the Applicant makes a reasonable, affirmative showing that the long- term effect of the activity will not violate the water-quality standards, the application should be denied. DONE and ORDERED this 22nd day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION KYLE BROTHERS LAND COMPANY, INC. Petitioner, vs. CASE NO. 76-607 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issue in this case is whether Respondent KW Resort Utilities Corp. ("KWRU") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021 (collectively, the "Permit at Issue"), authorizing the major modification of KWRU's existing permit to operate a domestic wastewater facility located at 6630 Front Street, Stock Island, Florida 33040. The Permit at Issue would authorize the expansion of KWRU's existing domestic wastewater facility and the installation of two additional underground injection wells.
Findings Of Fact The Parties Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Last Stand has challenged the Permit at Issue in this proceeding. Petitioner George Halloran is a natural person residing in Key West, Florida, and is a member of Last Stand. Halloran has challenged the Permit at Issue in this proceeding. Respondent KWRU is a Florida corporation. KWRU is the wastewater utility service provider that owns and operates the Existing Wastewater Facility2/ and is responsible for its design, construction, operation, and maintenance. It is the applicant for the Permit at Issue in this proceeding. Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, implementing, as applicable, rules codified at Florida Administrative Code Chapters 62-4, 62-302, 62-303, 62-520, 62-528, 62-600, and 62-620, and various industry standards and manuals incorporated by reference into DEP rules. DEP's proposed agency action to grant the Permit at Issue is the subject of this proceeding. Background and Overview Domestic Wastewater Regulation in the Florida Keys The State of Florida has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated, pursuant to statute and by DEP rule, as an Outstanding Florida Water ("OFW"). § 403.061(27), Fla. Stat.; Fla. Admin. Code R. 62-302.700(9). The Florida Legislature also designated the Florida Keys an Area of Critical State Concern. § 380.0552, Fla. Stat. A stated purpose of this designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater facilities that meet the requirements of section 403.086(10). Additionally, the Florida Legislature has enacted section 403.086(10), which addresses the discharge of domestic wastewater in the Florida Keys. That statute finds that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. Section 403.086(10) directs that after December 31, 2015, all new or expanded domestic wastewater discharges must comply with the treatment and disposal requirements of the statute and DEP rules. Specifically, domestic wastewater treatment facilities having design capacities greater than or equal to 100,000 gallons per day must provide basic disinfection of the wastewater pursuant to DEP rule and must treat the wastewater to a level of treatment, which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations of the specified constituents: Biochemical Oxygen Demand ("CBOD5") of 5 milligrams per liter ("mg/L"); Suspended Solids of 5 mg/L; Total Nitrogen, expressed as N of 3 mg/L; and Total Phosphorus, expressed as P of 1 mg/L. Collectively, these effluent standards constitute the "advanced wastewater treatment" ("AWT") standards. Section 403.086(10)(e) also imposes requirements regarding disposal of treated domestic wastewater effluent through underground injection. Section 403.086(10)(e)1. requires Class V injection wells serving domestic wastewater treatment facilities having design capacities of less than one million gallons per day (hereafter "MGD") 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 DEP rule. Section 403.086(10)(e)2. requires Class V injection wells serving wastewater treatment facilities with design capacities greater than or equal to 1 MGD, excluding backup wells, to be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by DEP rule. The Existing Wastewater Facility KWRU currently is permitted, pursuant to Permit FLA014591 (the "Existing Permit"), to operate a domestic wastewater facility (the "Existing Wastewater Facility" or "Facility")3/ located at 6630 Front Street, Stock Island, Florida. Stock Island is located immediately east and slightly north of Key West. By way of background, KWRU's domestic wastewater system currently consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and the Existing Wastewater Facility, which treats the wastewater and then sends it either as reclaimed water for reuse as irrigation water at the Key West Golf Club, or for toilet flushing or air conditioning makeup water at other facilities specified in the Existing Permit,4/ or disposes of it as treated effluent through two underground injection wells. No modifications to the collection or transmission systems have been proposed or challenged. Thus, only the proposed modifications to the Existing Wastewater Facility are at issue in this proceeding. The Existing Wastewater Facility serves residential and commercial properties located on Stock Island, Florida, immediately adjacent to Key West in the lower Florida Keys. Specifically, the Facility treats domestic wastewater originating from approximately 1,416 existing residential connections and 216 commercial connections. The commercial connections consist of a convalescent center, a college, restaurants, recreational vehicle parks, an animal clinic, and a hospital. There are no industrial wastewater contributors to the Facility. The Facility includes a Category III, Class C wastewater treatment facility operating under the Existing Permit. It is staffed by a Class C or higher operator for six hours a day, seven days per week, in accordance with the Existing Permit and applicable DEP rules. The Facility has a design capacity and a permitted capacity5/ of .499 MGD annual average daily flow ("AADF") and consists of two treatment trains having capacities of .249 MGD and .250 MGD AADF. These treatment trains are piped together to allow operation of the Facility as a single plant. The Facility was upgraded in the mid-2000s and is capable of treating influent wastewater to AWT. However, as authorized under the Existing Permit, the Facility currently treats domestic wastewater to secondary standards, which do not impose nitrogen or phosphorous limits. Under the Existing Permit and in accordance with section 403.086(10), the Facility is not required to meet AWT standards until January 1, 2016. Vacuum and gravity collection systems collect the domestic wastewater from the properties that KWRU services. Wastewater influent from the collection systems flows through the transmission system to a splitter box at the KWRU property, where it is sent to the Facility for treatment. The Facility contains two treatment trains, each consisting of a bar screen, an equalization tank, an aeration tank, an anoxic zone, a post-aeration basin, a clarifier, a silica sand/river rock filter, and a chlorine contact chamber. The bar screens, which constitute the first step in the treatment trains, remove floatables from the wastewater stream. After passing through the bar screens, the wastewater drops into two equalization tanks. As their name indicates, the equalization tanks smooth out the peaks in wastewater flow to the Existing Wastewater Facility. Specifically, wastewater flows to the Facility in large volumes during two periods each day, morning and evening, corresponding with peak water use by the serviced properties. During these large flow volume periods, the equalization tanks fill up with sewage influent, which is meted out during lower-flow periods for treatment by the Facility. In this manner, the Facility treats roughly the same amount of wastewater per hour, which is key to the steady state operation of, and the reliable treatment of the wastewater by, the Facility. From the equalization tanks, the wastewater is directed to the three-stage bioreactor portion of the treatment process. Microorganisms are utilized at each stage to break down the waste. The first stage of the bioreactor process occurs in the aeration basins. Here, wastewater enters the fine-air zone, where it and the microbes used in this stage of the treatment process come into contact with tiny oxygen bubbles. The microorganisms use the oxygen to oxidize the waste and complete the ammonification of the wastewater. The wastewater then passes through bulkheads to the anoxic zones, where the oxygen level is extremely low. In the anoxic zones, bacteria denitrify, or remove nitrogen from, the wastewater. The wastewater is then sent to the post-aeration basins, where excess carbon is removed through oxidation. Thereafter, the wastewater is sent to the clarifiers, where the microorganisms settle out of the wastewater to form a solid precipitate on the bottom of the tank. The precipitate is plowed into a sump and returned by pump to the bioreactors, where the microorganisms are reused in the activated treatment process. When the microorganisms cease to optimally function in treating the waste, they are culled from the treatment process and sent to a digester, where they oxidize, through the endogenous decay process, to the point that they die and only their endoskeletons remain. Sludge, consisting of the endoskeletons and water, is pumped to a sand filter drying bed. The filtrate water is pumped back through the Wastewater Facility to be reused in the wastewater treatment process, while the dried endoskeletons, which are termed "biosolids," are transported offsite for disposal in a Class I landfill. The treated, clarified wastewater is pumped through sand/rock filters, then to the chlorine contact chambers where it is exposed to a minimum of 15 minutes of chlorine disinfection. As noted above, the Existing Permit authorizes the reuse of reclaimed water for, among other uses, irrigation by land application at the 100.27-acre Key West Golf Club golf course. The golf course irrigation system consists, in part, of two unlined interconnected ponds that do not directly discharge to surface waters6/ and that have a storage capacity exceeding one million gallons. KWRU sends reclaimed water to the golf course through its reclaimed water reuse system only in the quantity required to meet the course's irrigation needs. The Existing Permit imposes a minimum residual chlorine level of 1 mg/L and a maximum of 5 mg/L turbidity for the treated wastewater to be considered reclaimed water that can be reused as irrigation at the golf course or as otherwise authorized in the Existing Permit. If the treated wastewater does not meet these standards, switchover/interlock equipment at the Facility disables the power to the pumps that send the reclaimed water offsite for reuse.7/ At that point, the treated wastewater is considered treated effluent.8/ The effluent fills the effluent wet well and is piped directly to the existing underground injection wells for disposal. Pursuant to the Existing Permit, the effluent is disposed of by gravity flow through two Class V, Group 3, ten- inch underground injection wells bored to a depth of 110 feet and cased to a minimum depth of 60 feet. Collectively, the two injection wells have a maximum permitted capacity of .499 MGD AADF. As authorized by the Existing Permit, the underground injection wells discharge the effluent to Class G-III ground water within the Key Largo Limestone.9/ The underground injection wells are not the primary means of disposal for the treated wastewater, in the sense that they are used to remove effluent from the Facility only if and when reclaimed water is not needed by the golf course or the other receiving facilities, or when the treated wastewater does not meet the required residual chlorine and turbidity limits discussed above. The Existing Permit and the activities authorized thereunder are not at issue in this proceeding. Activities Authorized by the Permit at Issue The Permit at Issue proposes to authorize the construction of a new .350 MGD treatment train, which will increase the design capacity and permitted capacity of the plant from .499 MGD to .849 MGD AADF. The proposed modification of the Existing Wastewater Facility entails the addition of a 90-foot diameter tank containing an influent screen, a 105,554-gallon influent equalization tank, a 163,000-gallon aeration chamber, a 154,725-gallon post-anoxic chamber, a 35,525-gallon re-aeration zone, a 112,062-gallon clarifier, and a 317,950-gallon digester. The sand filters and chlorine contact chambers currently in use will be expanded to accommodate flows from the new treatment train, and the chlorine contact chambers will be changed to liquid bleach feed. The Permit at Issue also proposes to authorize the construction and operation of a new .499 MGD AADF underground injection well system consisting of two new Class V, Group 3 ten- inch wells, drilled to a depth of at least 110 feet and cased to a depth of at least 60 feet, which would discharge effluent to Class G-III ground water within Key Largo Limestone. When placed into service along with the two existing injection wells, the total design capacity and permitted capacity of all four underground injection wells would be .998 MGD AADF.10/ The existing reclaimed water reuse system for the Key West Golf Club or the other receiving facilities currently is authorized for a permitted flow capacity of .499 MGD AADF and a design capacity of 1 MGD AADF. The Permit at Issue would authorize the construction of a new reclaimed water reuse system having a permitted capacity of .849 MGD AADF; however, the design capacity of the system remains 1 MGD AADF, and the amount of reclaimed water sent to the golf course for reuse as irrigation is not being changed by the Permit at Issue from that currently authorized by the Existing Permit. Hereafter, the proposed modifications to the Existing Wastewater Facility that are the subject of the Permit at Issue are referred to as the "Project." The expanded facility resulting from completion of the Project is referred to as the "Expanded Wastewater Facility." The Existing Wastewater Facility treatment trains will be modified to meet the AWT standards as of January 1, 2016. Specifically, an alkalinity control system, a carbon injection system, and an alum injection will be added and certain aspects of the wastewater treatment process will be modified as necessary to meet the AWT standard. The new treatment train proposed as part of the Project will be designed to meet the AWT standards upon operation, which will not occur sooner than 2016. Accordingly, as required by section 403.086(10(d)1., all effluent from the Expanded Wastewater Treatment Facility will meet the AWT standards as of January 1, 2016. As a result of conversion of the wastewater treatment process to AWT, and even assuming all treated effluent is injected down the wells, total nitrogen loading will be decreased from 58 pounds per day to 15.9 pounds per day and total phosphorous loading will be decreased from 14.4 pounds per day to 5.3 pounds per day. This is the case even though the volume of effluent disposed of through the wells may as much as double. Only the activities comprising the Project, which are the proposed to be authorized by the Permit at Issue, are the subject of this proceeding. The Permitting Process The overarching purpose of the wastewater facility permitting process, including permitting of modifications to an existing wastewater facility, is to ensure that the wastewater facility does not discharge wastes to any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such waters. This is accomplished by requiring the facility to be designed, constructed, and operated in accordance with applicable DEP rule standards, which incorporate industry standards. Fla. Admin. Code R. 62- 600.100(1). Similarly, the overarching purpose of the Underground Injection Well System permitting process is to protect the quality of underground sources of drinking water and prevent degradation of the quality of other aquifers adjacent to the injection zone that may be used for other purposes. This is accomplished by requiring underground injection wells to be designed, constructed, and operated in accordance with applicable DEP rule requirements and standards. Fla. Admin. Code R. 62- 528.100(1). The Wastewater Facility or Activity Permit Application Form 1, General Information, and Application Form 2A, Permit for Domestic Wastewater Treatment and Reuse or Disposal Facility, which are adopted by rule, are the forms that must be completed and submitted to DEP to receive authorization to modify existing wastewater facilities or construct new wastewater facilities. This form includes a list of requirements, some (but not necessarily all) of which apply to proposed modification of an existing wastewater facility. The form requires that a Florida- licensed P.E. certify that the engineering features of the project have been designed by the engineer in conformance with the sound engineering principles applicable to such projects, and that, in his or her professional judgment, the facility, when properly constructed, operated, and maintained, will comply with all applicable statutes and the rules. The Application to Construct/Operate/Abandon Class I, III, or V Injection Well System, which is adopted by rule, is the application form that must be completed and submitted to DEP to receive authorization to construct and operate a Class V Injection Well System. This application form includes a list of requirements, some (but not necessarily all) of which apply to a specific underground injection well construction project. The form requires that a Florida-licensed P.E. certify that the engineering features of the injection well have been designed and examined by the engineer and found to conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application. By signing and sealing the application, the P.E. certifies that, in his or her professional judgment, there is reasonable assurance that the injection well, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules. Once the application forms are submitted, DEP permitting staff reviews the applications and determines whether items on the forms and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a Request for Additional Information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to review the application for issuance or denial of the permit, DEP determines the applications complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as it may direct, if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, the applicant is legally entitled to issuance of the permit. Engineering Design of the Project KWRU retained Weiler Engineering Corporation to design the proposed modifications to the Existing Wastewater Facility and the new underground injection well (again, collectively referred to as the "Project") and to prepare and submit the applications for the Permit at Issue to DEP. Edward Castle and Christopher Johnson prepared the applications for the Permit at Issue. As the applicant, Johnson signed the application documents as required pursuant to the application form. As the engineer of record, Castle signed and sealed the certifications in the application forms, representing that he was the engineer in responsible charge of preparing the Project's engineering documents. Castle's signature and seal on the application forms for the wastewater treatment facility expansion portion of the Project constitute his representation that he designed and examined the engineering features of the wastewater treatment facility expansion; that these features conform to sound engineering principles applicable to the Project; and that, in his professional judgment, the wastewater treatment facility expansion portion of the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. Similarly, Castle's signature and seal on the application to construct the new underground injection wells constitute his representation that he designed the engineering features of these injection wells; that the injection wells conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that in his professional judgment, there is reasonable assurance that the wells, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules, including the requirement that the effluent discharged through the injection wells meet AWT standards as of January 1, 2016. As previously noted, the design capacity of wastewater treatment portion of the Expanded Wastewater Facility is proposed to be .849 MGD AADF. Castle selected this design capacity based on historic wastewater flows at the Existing Wastewater Facility and foreseeable projected wastewater treatment capacity demand in the future.11/ Specifically, to estimate future capacity demand, Castle considered development agreements, requests for utility service, the existence of scarified property and applicable development density, wetslips, recent property sales, and estimated and proposed in-fill development on Stock Island. He projected residential development wastewater treatment demand based on historic actual flow data from the Monroe County Sanitary Wastewater Master Plan ("Master Plan"), in conformance with the Recommended Standards for Wastewater Facilities, the so- called "Ten States Standards," a wastewater systems design and planning guidance document incorporated by reference in rule 62- 600.300(4). Additionally, Castle applied the estimated sewage flows codified in Florida Department of Health rule 64E-6.008, Table I, System Design Estimated Sewage Flows ("DOH Table I"), to estimate wastewater treatment demand for projected commercial and hotel development uses. Once Castle had projected wastewater capacity demand for residential and hotel/commercial uses at buildout on Stock Island, he factored in an additional 15 percent capacity safety factor to derive the .849 MGD AADF design capacity for the Expanded Wastewater Facility. Castle chose AADF, rather than the maximum monthly average daily flow or three-month average daily flow, as the timeframe for the design capacity based on historical flow amounts to the Existing Wastewater Facility and because of insignificant seasonal variations in historical flows to the Facility.12/ This is because the population on Stock Island contributing flow to the Existing Wastewater Facility is largely comprised of non-seasonal residents and commercial operations.13/ Nonetheless, to ensure the Expanded Wastewater Facility will have adequate capacity to effectively treat wastewater to the required standards during higher flow periods that may result from non- residential seasonal occupancy in the future, Castle assumed year-round, 100 percent occupancy for the projected hotel and commercial development on Stock Island in determining the design capacity for the Expanded Wastewater Facility. Castle estimated a peak hourly flow of 1.273 MGD for the Expanded Wastewater Facility. This figure estimates the maximum flow through the facility on an hourly basis specifically to take into account the diurnal variability of wastewater flow entering the facility. By definition, the peak hourly flow is a maximum hourly flow rather than the sustained flow or volume into or through the facility. The projected maximum hourly flow of 1.273 MGD, which was determined by multiplying the annual average daily flow by a peaking factor of 1.5, is an estimate of the maximum hourly flow wastewater coming into the Expanded Wastewater Facility's equalization tanks. Importantly, it is not the volume of wastewater flow, on an annual average daily basis, that will leave the facility's equalization tanks and flow through the facility's treatment process. Put another way, the 1.273 MGD peak hourly flow is not the Expanded Wastewater Facility's design capacity. As previously noted, the permitted capacity of the wastewater treatment portion of the Expanded Facility also would be .849 MGD AADF. The permitted capacity is the amount, on an annual average daily flow basis, that the wastewater treatment portion of the Expanded Wastewater Facility is authorized to treat and discharge. This metric establishes an absolute limit, on an annual average daily basis, on the quantity of wastewater that can be treated by, and discharged from, the Expanded Wastewater Facility. Also as discussed above, once the two new underground injection wells are installed, the total design capacity of the four wells at the Expanded Wastewater Facility will be .998 MGD AADF. The two new injection wells are being added to ensure adequate disposal capacity for the .849 MGD permitted capacity and, importantly, to accommodate the peak hourly flow. The reclaimed water reuse system currently has an authorized design capacity of 1 MGD AADF, and this is not being changed by the Project, although the permitted capacity is being increased to .849 MGD AADF. As discussed in greater detail below, neither the design capacity nor the permitted capacity of the reuse system is a function of the irrigation application rate per acre of the golf course, and neither represent the amount of irrigation applied to the golf course per day. In determining the design capacity for the Expanded Wastewater Facility, Castle considered wastewater capacity demand for the facility through the year 2020, rather than over a 20- year period. This is because buildout of the properties on Stock Island that will contribute flow to the facility is reasonably projected to occur between 2018 and 2020. After buildout, there will be no additional properties being developed to contribute additional wastewater flows to the Expanded Wastewater Facility. The credible, persuasive evidence establishes that the proposed design capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62-600.200(19) and other pertinent provisions in chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence also establishes that the proposed permitted capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62- 600.200(62) and other pertinent provisions of chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence further establishes that the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. The credible, persuasive evidence also establishes that the underground injection wells, as designed, conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that there is reasonable assurance that the wells, when properly constructed, maintained, and operated, will discharge effluent in compliance with all pertinent statutes and rules, including the requirement that the effluent discharged down the injection wells meet AWT standards as of January 1, 2016. DEP Review and Proposed Issuance of the Permit at Issue The wastewater treatment facility and underground injection well applications for the Project were submitted to DEP on April 15, 2014. During DEP's review of the applications for the Project, the question arose whether the 1.273 MGD peak hourly flow stated in the permit application would trigger the so-called "deep well" requirement in section 403.086(10)(e)2. that the underground injection wells be cased to a minimum depth of 2,000 feet. DEP ultimately concluded that the term "design capacity," as used in the statute, referred to an average daily flow rate14/ over a specified period of time——here, a year——for the Expanded Wastewater Facility, rather than the transient peak hourly flow for the facility. Thus, the Expanded Wastewater Facility does not have a design capacity exceeding 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Expanded Wastewater Facility. DEP permit review staff issued one RAI, and KWRU timely provided the requested information. Upon receipt and review of KWRU's response to the RAI, DEP deemed the application for the Permit at Issue complete. DEP staff reviewed the permit applications for compliance with applicable statutory and rule requirements and standards. DEP's review does not entail re-designing or re- engineering the project or questioning the design engineer's reasonable exercise of judgment on design matters, as long as the project is accurately designed based on sound engineering principles and will operate in accordance with the applicable permitting requirements and standards. Thus, as a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to sound engineering principles——as is appropriate and authorized pursuant to the certification provisions on the application forms, rule 62-4.050(3), and chapter 471 and Florida Board of Engineering rules.15/ Gary Maier, P.E., professional engineer supervisor III and supervisor of DEP's domestic wastewater facility permit review staff, also reviewed the applications, the Intent to Issue, and the draft Permit at Issue to ensure that the Project complied with all applicable rules and standards and that KWRU had provided reasonable assurances such that the Project should be approved. Ultimately, DEP determined that KWRU provided reasonable assurances that the relevant permit applications met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to issue the Permit at Issue. Establishment of Prima Facie Entitlement to Permit at Issue The relevant portions of the permit file, including the permit applications, supporting information, and Notice of Intent to Issue for the Permit at Issue, were admitted into evidence at the final hearing. With the admission of these documents into evidence, KWRU established its prima facie case demonstrating entitlement to the Permit at Issue. See § 120.569(2)(p), Fla. Stat. Challenge to the Permit at Issue Once KWRU demonstrated prima facie entitlement to the Permit at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permit at Issue. See id. To prevail in this proceeding, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. Petitioners have raised numerous grounds in the Second Amended Verified Petition for Formal Administrative Hearing16/ that they contend mandate denial of the Permit at Issue. Each of these grounds is addressed below. Alleged Permit Application Deficiencies Petitioners contend that the Permit at Issue should be denied due to alleged deficiencies in the applications submitted for the Project. Capacity Analysis Report Petitioners allege that, under rule 62-600.405, KWRU was required to submit a Capacity Analysis Report ("CAR") as part of its application for the Permit at Issue and that its failure to do so renders the applications incomplete, thus requiring denial of the Permit at Issue. The purpose of a CAR is to analyze capacity at an existing wastewater facility and to apprise DEP when it becomes evident that expansion of the wastewater facility may be needed. Specifically, the CAR is performed and submitted on a periodic basis, or when certain contingencies occur, to apprise DEP of the actual flows through the facility. If the actual flows are approaching the facility's permitted capacity, the CAR serves to notify DEP that expansion of the facility may be warranted. Thus, the CAR helps ensure that the permittee recognizes the need for, and properly plans for, future expansion of the facility. In support of their contention, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who has experience in the planning and design of wastewater treatment facilities in Florida, including the Florida Keys. Lynch testified that the most recent three-month average daily flows reported to the DEP by KWRU repeatedly exceeded 50 percent of the permitted capacity of the Existing Wastewater Facility, thereby triggering the requirement in rule 62-600.40517/ that a CAR be submitted. KWRU previously submitted an initial CAR when the Existing Wastewater Facility historically exceeded 50 percent of its permitted capacity. Thereafter, KWRU submitted an updated CAR in April 2012, as part of the renewal application for the Existing Permit that KWRU filed in October 2011. The April 2012 CAR indicated that permitted flows would not be exceeded for ten years. Thus, under rule 62-600.405(5), a subsequent updated CAR would be due at five year intervals or when the applicant applied for an operation permit or renewal of an operation permit, whichever occurred first.18/ The persuasive evidence establishes that during the period between issuance of the Existing Permit in February 2012 and submittal of the applications for the Permit at Issue in 2014, the three-month average daily flows for the Existing Facility had not exceeded 50 percent of the treatment plant's capacity and the five-year interval CAR submittal interval (which would have expired in 2017) had not yet expired, so an updated CAR was neither required nor submitted. When development on Stock Island resumed in the 2012 through 2014 timeframe following an economic recession, it became apparent from actual flow data that the Existing Wastewater Facility would need to be expanded to accommodate the wastewater flow from new development, as well as to accommodate wastewater flow from existing development being required by law to connect to a central wastewater system. Accordingly, in April 2014, KWRU submitted the applications for the Permit at Issue. As part of KWRU's applications, the design and permitted capacity of the Existing Wastewater Facility were analyzed, and future wastewater flows for the facility were projected, taking into account all relevant factors, including projected development over an appropriate planning period, new connections from existing development, and the lack of seasonal variation in historic flows. Based on this information, the proposed design and permitted capacities for the Expanded Wastewater Facility were determined. This information is precisely that which would have been required in an updated CAR. Because all pertinent information necessary to determine the design and permitted capacities for the Expanded Wastewater Facility was submitted as part of the applications for the Permit at Issue, a separate CAR was not required and, indeed, would have been redundant and pointless. It should be noted that the Permit at Issue specifically requires submittal of a CAR upon renewal, which is five years from the date of issuance. Further, the Expanded Wastewater Facility is subject to chapter 62-600, including rule 62-600.405, so KWRU would be required to submit a CAR if circumstances specified in the rule were to occur.19/ Thus, Petitioners failed to demonstrate, by a preponderance of the competent substantial evidence, that a CAR was required to be submitted as part of applications for the Permit at Issue. Accordingly, the absence of a CAR as part of the applications is not a basis for denying the Permit at Issue. Deep Injection Well Requirement Petitioners contend that the design capacity for KWRU's wells exceeds 1 MGD, so KWRU was required under section 403.086(10)(e)2. to apply for approval to install deep injection wells——i.e., wells that are cased to a minimum depth of 2,000 feet. Petitioners further contend that KWRU's failure to include an application for deep injection wells in its applications thus mandates denial of the Permit at Issue. Under section 403.086(10)(e)1., injection wells serving wastewater facilities that have a design capacity of less than 1 MGD are required to be at least 90 feet deep and cased to a minimum depth of 60 feet. Under section 403.086(1)(e)2., injection wells serving wastewater facilities having a design capacity equal to or greater than 1 MGD must be cased to a minimum depth of 2,000 feet or such greater depth as may be required by DEP rule. As previously discussed, rule 62-600.200(19) defines "design capacity" as "the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities." The rule states that the design capacity is established by the permit applicant, and that the timeframe associated with the design capacity——such as annual average daily flow, maximum monthly average daily flow, or three- month average daily flow——also is specified by the applicant. Additionally, rule 62-600.400(3)(a), which is part of DEP's Design Requirements rule for domestic wastewater facilities, reiterates that the applicant establishes both the design capacity and the timeframe used to define its selected design capacity, with the caveat that the timeframe selected must reflect seasonal variations in flow, if any. As discussed above, the credible, persuasive evidence establishes that KWRU's selected design capacity and timeframe ——here, .849 MGD AADF——accurately and appropriately addresses the projected wastewater flows that will be treated by the Expanded Wastewater Facility. As Castle credibly testified, historical flows to the Existing Wastewater Facility do not indicate substantial seasonal residential flow, consistent with the workforce population residing year-round on Stock Island. Moreover, to the extent there may be some seasonal flow variation associated with projected hotel and commercial development, Castle took that into account in determining the design capacity for the Expanded Wastewater Facility. For these reasons, Castle's selection of AADF as the design capacity metric is appropriate, conforms to sound engineering principles, and complies with applicable DEP rules. Further, as previously discussed, the 1.273 MGD peak hourly flow is exactly that——the peak or maximum flow expressed on an hourly basis——that can be processed by the Expanded Wastewater Facility. It does not constitute the design capacity of the Expanded Wastewater Facility, which, by definition, is the average flow over a specified period of time. The persuasive evidence in the record shows that the proposed design capacity of the Expanded Wastewater Facility is .849 MGD AADF, and this design capacity is appropriate and based on sound engineering principles. As such, the design capacity of the facility is less than 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Project. Thus, Petitioners failed to demonstrate, by a preponderance of the evidence, that the deep well requirement in section 403.086(10)(e)2. applies to the Project. Accordingly, they did not establish that the Permit at Issue should be denied on the basis that KWRU did not apply for approval of deep injection wells as part of the applications for the Project. Identity of Permittee The Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, which is not an existing entity registered to do business in Florida or in any other state. Petitioners contend, and KWRU and DEP do not dispute, that a permit issued to an entity that does not legally exist cannot legally authorize any activities. Accordingly, to the extent the Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, Petitioners contend that this constitutes a basis for denying the Permit at Issue. At the hearing, DEP and KWRU presented credible evidence showing that the correct permittee is KW Resort Utilities Corp., not Key West Resort Utilities Corporation as was stated on the proposed Permit at Issue. Further, the permit applications correctly identify KWRU as the applicant for the Permit at Issue. Thus, identification of Key West Resort Utilities Corporation as the permittee on the proposed Permit at Issue was a typographical error, and the evidence establishes that this error will be corrected when the Permit at Issue is issued. If this typographical error is corrected, then the Permit at Issue should not be denied on this basis. Alleged Project Design and Engineering Deficiencies Petitioners allege that KWRU failed to provide reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the Expanded Wastewater Facility will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules. Petitioners further allege that KWRU has undersized the design capacity of the Expanded Wastewater Facility and that the appropriate design capacity is greater than 1 MGD, thus triggering the deep well requirement in section 403.086(10)(e)2. Projected Flows to Expanded Wastewater Facility In support of their position, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who testified that the future wastewater flows to the Expanded Wastewater Facility projected by KWRU in its applications are incorrect because they do not accurately address planned development in KWRU's service area, as required by the Ten States Standards. Lynch took the position that pursuant to the Ten States Standards, the appropriate planning horizon for the Project is at least ten years, which would require KWRU to project wastewater flow to the Expanded Wastewater Facility through approximately 2025, rather than through 2020, as projected in the applications for the Project. However, the persuasive evidence shows that KWRU utilized an appropriate planning horizon in projecting future wastewater flows to the Expanded Wastewater Facility. KWRU's facility design engineer, Castle testified, persuasively, that although the graphic submitted in the application shows the projected wastewater flows only through the year 2020, the planning horizon he used actually was infinite. This is because the projected buildout of the service area20/ to maximum wastewater flow is anticipated to occur between 2018 and 2020, and after that point, wastewater flows to the facility would remain constant. Thus, it was pointless to depict projected flows out to the year 2025——particularly since the narrative in the application describing the Project makes clear that buildout of KWRU's service area is anticipated to occur by 2020. Because the wastewater flows projected for the year 2020 accurately represent the maximum flows that the Expanded Wastewater Facility can process, the projected planning horizon to the year 2020 is appropriate for the facility, complies with the Ten States Standards, and complies with DEP rules. Lynch also asserted that the projected wastewater flows to the Expanded Wastewater Facility from development identified in the application do not accurately apply the standards in DOH Table I and that this inaccuracy further contributed to underestimation of the design capacity of the Expanded Wastewater Facility. Lynch arrived at this position by applying Table I to all identified future development——both residential and nonresidential——and considering an additional development (Key West Harbor Yacht Club) not listed in the applications. He projected that the future wastewater flow from these developments would be approximately 146,110 gallons per day——approximately 46,000 gallons per day higher than the 100,000 gallons per day that Lynch claimed KWRU projected for the planned developments on Stock Island. Based on the addition of 46,000 gallons to KWRU's proposed design capacity of .849 MGD, Lynch opined that .895 MGD is the design capacity that should have been proposed for the Expanded Wastewater Facility. However, the credible, persuasive evidence establishes that, in determining the design capacity of .849 MGD for the Expanded Wastewater Facility, Castle accurately projected the wastewater flow quantities from future development on Stock Island. Castle described in detail the process he undertook to determine the projected wastewater flows from the various land uses and locations on Stock Island through projected buildout between 2018 and 2020. Specifically, he identified planned nonresidential development on Stock Island expected to begin producing wastewater flows in 2014 and applied the DOH Table I standards to determine the projected flows for each development. To determine projected wastewater flow from future residential development on Stock Island, Castle identified approximately 40 acres of scarified or under-utilized property in KWRU's service area and applied a density of 12 equivalent dwelling units ("EDU") per acre,21/ with 167 gallons per day of wastewater flow attributable to each EDU, using actual historic wastewater flow data from the Master Plan. Additionally, for each scarified or under-utilized property having water frontage, he projected one boat slip per 35 feet of frontage and applied a 75-gallon-per-day flow for each boat slip using DOH Table I recreational vehicle flows. For years 2016 through 2019, Castle projected incremental increases in wastewater flows per year22/ to account for potential development of other currently occupied properties. The aggregate of all projected flows from the identified developments, the 40 acres and boat slips, and the incremental increases per year through buildout yielded a projected wastewater flow of .74 MGD to the Expanded Wastewater Facility by years 2018 through 2020, which represents buildout flow to the facility. Castle then added a "safety factor" of 15 percent to the projected .74 MGD wastewater flow to accommodate currently unknown future redevelopment of existing occupied properties, to reach the .849 MGD design capacity. The 46,000-gallon discrepancy between Lynch's .895 MGD design capacity calculation and Castle's .849 MGD design capacity calculation is attributable to four basic differences in how they each determined design capacity. First, Lynch used more recent development agreement and development order information that more precisely identified and quantified specific land uses than the information that KWRU had available to it at the time it prepared and submitted its application. However, the evidence did not establish that the flow information on which Lynch relied and that on which Castle relied were so appreciably different as to significantly affect the projected design capacity for the Expanded Wastewater Facility. Second, Lynch applied DOH Table I to project future wastewater flows from all future planned development on Stock Island, both residential and nonresidential, whereas Castle applied DOH Table I only to determine nonresidential development future flows, and used actual historic flow data from the Master Plan to determine residential development future flows. Castle's residential flow calculation using historical actual flow data conforms to the recommendation in section 11.242(a) of the Ten States Standards that actual flow data be used, to the extent possible, to predict future flows; thus, Castle's calculation likely more precisely projects future flow attributable to residential development on Stock Island.23/ Third, Lynch took into account the Key West Harbor Yacht Club flow into the Expanded Wastewater Facility, whereas KWRU did not consider this flow in projecting future flows to the facility. This omission constituted an oversight on KWRU's part, and the flow from this development should have been included in the wastewater flow projection for the facility. However, the persuasive evidence did not show that this omission constituted a significant error in KWRU's .849 MGD AADF design capacity projection.24/ Fourth, Lynch apparently misinterpreted a statement in the application referencing "such redevelopment" as referring to the known planned developments on Stock Island, which were specifically identified by name in the application, and, thus, interpreted the reference to 100,000 gallons as being the flow KWRU projected for those known, named developments. However, the persuasive evidence established that the 100,000 gallons that KWRU assigned to "such redevelopment" in its application referred not to the known, named developments identified in the application, but instead to presently unknown future development on Stock Island, which Castle took into account by including the 15 percent "safety factor" in determining design capacity. Pursuant to the foregoing, it is determined that KWRU demonstrated, by credible, persuasive evidence, that it accurately estimated future wastewater flows from projected development on Stock Island to determine an appropriate design capacity of .849 MGD AADF for the Expanded Wastewater Facility. Design Capacity Timeframe Petitioners allege that the timeframe associated with the design capacity specified by KWRU——the annual average daily flow, or AADF——is not appropriate for the Expanded Wastewater Facility because it fails to reflect seasonal flows to the facility as required by rules 62-600.200(16) and 62-600.400(3)(a). Petitioners assert that the design capacity for the facility should instead be expressed in maximum monthly average daily flow ("MMADF") to account for seasonal flows. In support, Petitioners presented the testimony of Lynch, who opined that the KWRU service area experiences seasonal flows driven by the influx of tourists to Stock Island during tourist season. Lynch based this opinion on the wastewater flow data for the Existing Wastewater Facility for the year 2014, and his calculations showing that the three-month average daily flow ("ADF") for October through December 2014 was 11 percent higher than the AADF and that the MMADF for that period was 16 percent higher than the AADF. Lynch considered this variation substantial enough to indicate seasonality, so that MMADF is the appropriate design capacity timeframe for the Expanded Wastewater Facility. Using MMADF as the design capacity timeframe, Lynch opined that the design capacity of the Expanded Wastewater Facility should be 1.04 MGD MMADF——which would trigger the deep well requirement in section 403.086(10)(e)2. Castle chose AADF as the timeframe for the Expanded Wastewater Facility design capacity because historical flow records over a period of years do not show significant seasonal variations in flow for Stock Island. Castle testified, credibly and persuasively, that while the historical flow data shows a consistent slight increase in flows from August to December, in his view, the variation is not significant enough to constitute a seasonal flow. This is consistent with the evidence establishing that Stock Island is a "bedroom community" having a mostly year- round workforce population. Lynch formulated his opinion regarding appropriate design capacity using 2014 flow data for the entire year, which was not available at the time KWRU filed its permit applications for the Project in April 2014. Although Lynch relied on more recent data, his opinion was based only on one year of data. By contrast, Castle selected AADF as the design capacity metric based on the previous five years of flow data, which showed variations in flow ranging between two percent and 12 percent on a three-month average daily flow basis. Castle credibly testified that these variations were not significant enough to indicate seasonal flows and did not closely correlate with tourist season in the Keys. Additionally, in calculating his flow projections for the Expanded Wastewater Facility, Castle assumed 100 percent year-round occupancy for residential units, so that his projected design capacity of .849 MGD necessarily took into account potential seasonal flows. Thus, to the extent there are seasonal flows, the facility simply will receive flows below the design capacity during off-season. The undersigned finds Castle's use of long-term historical flow data more reliable than Lynch's use of only one year of data in assessing whether there is flow seasonality.25/ DEP's wastewater permitting supervisor, Gary Maier, concurred that the variations in wastewater flow do not reflect a significant seasonal variation that would require the use of a smaller averaging period than AADF. Maier also observed that none of the wastewater facilities in the Florida Keys having a design capacity greater than 100,000 gallons per day has a design capacity based on MMADF. This evidences that Castle's selection of AADF as the timeframe metric conforms to the design capacity standard used for facilities of comparable size in the Florida Keys. Based on the foregoing, it is determined that KWRU's selection of AADF as the design capacity timeframe metric for the Expanded Wastewater Facility is appropriate and complies with DEP rules. Petitioners failed to demonstrate that KWRU's selection of AADF as the design capacity timeframe metric violates any applicable laws or rules. Accordingly, Petitioners did not demonstrate that the Permit at Issue should be denied on this basis. Ability of Expanded Wastewater Facility to Reliably Meet AWT Petitioners further allege that KWRU failed to provide a complete application demonstrating that the treatment processes for the Expanded Wastewater Facility will efficiently and reliably meet effluent limitations for design year flow. As discussed above, the evidence establishes that KWRU provided all of the information required for the applications for the Permit at Issue, so DEP correctly determined that the applications were complete before commencing its substantive review of the applications. Also as discussed above, Lynch opined that the proposed design capacity was undersized for the flows he projected for the Expanded Wastewater Facility. However, the persuasive evidence shows that KWRU's proposed design capacity of .849 MGD AADF is appropriate, conforms to sound engineering principles, and meets applicable statutory and rule requirements. In order to ensure that a wastewater facility functions effectively and reliably, it is important that the facility not be substantially oversized for the amount of wastewater flowing into the facility. In an over-sized facility, inconsistent timing of wastewater flow, lack of appropriate chemical environment for waste breakdown, and inadequate food supply for the microorganisms may lead to ineffective performance of the facility. A consequence of these imbalances is that undesirable microbes may populate the facility, causing incomplete solids settlement, overflow of solids downstream to the filters, and operational problems resulting in failure of the facility to treat wastewater to AWT standards. KWRU provided reasonable assurance, based on the proposed .849 MGD AADF design capacity and the other engineering features of the Project, that the Expanded Wastewater Facility is appropriately sized and will effectively and reliably treat the wastewater to AWT standards. Thus, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it is undersized and will not reliably meet AWT standards. Key West Golf Club Reuse System Issues Petitioners contend that as part of the applications for the Project, KWRU proposes to send 1 MGD of reclaimed water to the golf course. Petitioners claim that, given an irrigated area of 100.27 acres and an average irrigation rate of .73 inches per acre per day, only 300,000 gallons of reclaimed water per day is accounted for by reuse as irrigation. On that basis, Petitioners allege that KWRU has not demonstrated that the 700,000 gallon-per-day balance of reclaimed water sent to the golf course will be reused for a beneficial purpose rather than being disposed. This contention is based on a misunderstanding of the structure and function of the reuse system. The 1 MGD flow stated in the permit application is the design capacity of the reuse system, which is not being changed by the Permit at Issue. Importantly, this figure does not quantify the amount of water that is or actually will be sent to the golf course or applied as irrigation to the golf course irrigated area in a single day. Rather, it represents the flow capacity to which the reuse system is designed.26/ The applications for the Permit at Issue do not propose any changes to the quantity of reclaimed water being reused, which is governed by the irrigated acreage at the golf course and the irrigation rate. These parameters are not being changed. As previously discussed, KWRU sends reclaimed water to the golf course only on an as-needed basis, where it is stored in the ponds until needed for irrigation. If the course does not need reclaimed water sent to the ponds, KWRU does not send the water. Thus, the golf course controls the amount of reclaimed water that is sent to the storage ponds. Although the permitted capacity of the reuse system is being expanded from .499 MGD AADF to .849 MGD AADF, the actual amount of reclaimed water sent to the golf course by KWRU is not anticipated to change because, as discussed above, the amount being reused for irrigation is not being changed. Since the amount of reclaimed water being reused for irrigation is not increasing, the reuse system is not being expanded. Thus, the evidence does not show that 700,000 gallons per day of reclaimed water will be sent to the golf course for disposal, inconsistent with rule 62-610.810(2), rather than being reused for a beneficial purpose.27/ Petitioners also assert that the increased permitted capacity of the reuse system constitutes a "new or expanded reuse or land application project," so that an engineering report and reuse feasibility study were required as part of the applications for the Permit at Issue, pursuant to rule 62-610.310(1). KWRU previously provided these documents when it originally applied for authorization of the reuse system. The credible, persuasive evidence shows that increasing the permitted capacity of the reuse system does not trigger the requirement to submit another engineering report or reuse feasibility study. This is because no changes to the structural components or operation of the reuse system facilities are proposed. As Castle credibly explained, and Maier confirmed, the relevant question in determining whether an engineering report is required is whether the land application rate and/or the irrigated acreage is being changed, which would increase the amount of reclaimed water being reused and, thus, would require expansion of the reuse system. As discussed, neither the irrigated area nor the irrigation application rate is proposed to change under the Project. Thus, neither an engineering report nor a reuse feasibility study are required as part of the applications for the Permit at Issue. Therefore, Petitioners failed to demonstrate that the Permit at Issue should be denied on the basis that KWRU did not submit a reuse feasibility or engineering report as part of its applications for the Permit at Issue. Alleged Surface Water Quality Violations by Injection Wells Petitioners allege that disposing of the effluent from the Expanded Wastewater Facility through the injection wells will cause or contribute to violations of surface water quality standards codified in chapter 62-302. Petitioners further allege that, as a consequence, the discharge will violate antidegradation requirements in rules 62- 4.242, 62-302.300, and 62-302.700(1), and that the wells do not comply with the underground injection control rule requirement in rule 62-528.630(7), specific to Monroe County, that the wells not cause or contribute to surface water quality violations. Regulatory Status of Surface Waters in Stock Island Vicinity A significant portion of the surface waters in the Florida Keys, including those surrounding Stock Island and Key West, are classified as Class III surface waters pursuant to rule 62-302.400. Water quality criteria adopted by rule for Class III surface waters are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. As previously noted, certain portions of the Florida Keys, including the surface waters surrounding Stock Island and Key West, are designated an OFW. Fla. Admin. Code R. 62- 302.700(9)(i)13. No degradation of surface water quality, other than that allowed under rules 62-4.242(2) and (3), is permitted in an OFW. See Fla. Admin. Code R. 62-302.700(1). The narrative nutrient criterion codified at rule 62- 302.530(47)(a) states: "[t]he discharge of nutrients shall be limited as needed to prevent violations of other standards contained in this chapter. Man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Rules 62-302.300, 62-302.700, and 62-4.242, F.A.C." The narrative nutrient criterion codified at rule 62-302.530(47)(b) states: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." These criteria apply in Class III surface waters, including the surface waters in and around the Florida Keys. See Fla. Admin. Code R. 62-302.531(1). Rule 62-302.531(2) requires DEP to numerically interpret the narrative nutrient criterion for nutrients (nitrogen and phosphorus) and for nutrient response (chlorophyll- a). Where a site-specific numeric interpretation of rule 62- 302.530(47)(b) has been established, that numeric interpretation constitutes the primary standard applicable to that site. Fla. Admin. Code R. 62-302.531(2)(a). A range of natural factors affect nutrient loading for a given waterbody. Therefore, site- specific numeric interpretations of the narrative nutrient criteria generally are deemed more reliable than broadly applicable, non-site specific criteria. Estuary-specific numeric interpretations of the narrative nutrient criterion in rule 62-302.530(47)(b), consisting of nutrient values for nitrogen and phosphorus and a nutrient response value for chlorophyll-a have been adopted for many areas in the state of Florida, including the Florida Keys. These numeric interpretations——commonly referred to as "numeric nutrient criteria," or "NNCs"——are open water, area-wide averages. See Fla. Admin. Code R. 62-302.532(1). For the Florida Keys, seven Florida Keys Marine Nutrient Regions ("FKMNRs") have been identified and geographically delineated on a series of maps adopted by rule. For each of these FKMNRs, NNCs have been adopted for nitrogen, phosphorus, and chlorophyll-a. Fla. Admin. Code R. 62- 302.532(1)(g). The NNCs for the Lower Keys Region and the Back Bay Region are germane to this proceeding. For the Bay Back Region, the NNCs are .009 mg/L for phosphorus, .25 mg/L for nitrogen, and .3 µg/L for chlorophyll-a. For the Lower Keys Region, the NNCs are .008 mg/L for phosphorus, 0.21 mg/L for nitrogen, and 0.3 µg/L for chlorophyll-a. These NNCs are expressed as annual geometric means that are not to be exceeded more than once in a three-year period.28/ The area of water extending from the shoreline out to 500 meters offshore in the Florida Keys is referred to as the "Halo Zone." DEP has adopted by rule a map delineating the Halo Zone. The NNCs applicable to surface waters in each of the FKMNRs currently do not apply to the surface waters in the Halo Zone. Thus, only the narrative nutrient criteria codified at rules 62-302.530(47)(a) and (b) apply to surface waters in the Halo Zone at this time.29/ Additionally, pursuant to chapter 62-303, the Impaired Waters Rule, DEP has identified and delineated spatial assessment areas in waterbodies based on homogeneity for multiple water quality parameters.30/ These assessment areas, called "Waterbody IDs" or "WBIDs," are delineated for purposes of assessing, through water quality sampling, whether the surface waters within the WBID are impaired——that is, whether they fail to meet one or more of the applicable water quality standards due to pollutants.31/ DEP has delineated several WBIDs, identified by number, in the Halo Zone surrounding Key West and Stock Island. The Halo Zone surrounding Stock Island comprises WBID 6014B, and the Halo Zone surrounding Key West consists of WBIDs 6014A and 8073A through 8073H.32/ The Back Bay Region, which is located north of Stock Island and outside of the Halo Zone, is designated as WBID 8074. The Lower Keys Region consists of WBID 8073, which is located northwest of Stock Island and surrounding Key West outside of the Halo Zone, and WBID 8079, which is located south of Stock Island outside of the Halo Zone. Water quality monitoring, consisting of sampling for a range of parameters, is conducted at monitoring stations within each of these WBIDs. At least one monitoring station is located within each WBID. This water quality sampling is conducted according to DEP's applicable standard operating procedures. The monitoring stations have collected nutrient and nutrient response data spanning a period of years. The data collected in 1995 through 2013 are pertinent to this proceeding.33/ The Keys RAP, which was prepared in 2008 and updated in 2011, prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. As authorized under rule 62-303.600, DEP determined that the Keys RAP provides reasonable assurance that the restoration goals for the surface waters in the Florida Keys will be achieved by ensuring that all management activities specified in the Keys RAP would be implemented for specified waterbodies by 2015. Accordingly, in February 2012, DEP approved and adopted the Keys RAP by Secretarial Order. Current and historic water quality data show that all WBIDs in the Keys, including those in the Lower Keys Region, Back Bay Region, and Halo Zone for the surface waters surrounding Key West and Stock Island, are not impaired for nutrients——that is, that the NNCs and narrative nutrient criteria, as applicable, are being met. Pursuant to sections 403.061 and 403.067, Florida Statutes, and rule 62-303.600, DEP has classified the Florida Keys WBIDs as Category 2 under the waterbody use attainment classification scheme34/ for nutrients and nutrient response. The classification of the Keys WBIDs in this category means that sufficient water quality data are available to determine that at least one designated use is attained. Thus, as authorized by section 403.067 and rule 62-303.600(2), DEP has placed the Keys WBIDs on the "Delist List."35/ This "de-listing" action recognizes that the Florida Keys WBIDs, including those in the Halo Zone, are not impaired for nutrients and chlorophyll-a. Subsurface Geology in Vicinity of Stock Island The parties agree that, as a general proposition, the ground water and surface waters are connected to each other in the Florida Keys. However, no evidence was presented showing a specific location or locations where ground water connects to surface waters. Although it generally is undisputed that, at some point, ground water connects to surface waters, the parties disagree regarding whether, where, and how long it may take for the injected effluent to reach surface waters. Petitioners contend that due to the local geology, the injected effluent from the Existing Wastewater Facility rapidly reaches surface waters in the vicinity of Stock Island and that the increased discharge through the new injection wells will exacerbate and cause or contribute to surface water quality violations in the immediate vicinity of Stock Island and offshore. In support of this position, Petitioners presented the testimony of Scott Zednek, a Florida-licensed P.G. Zednek opined that due to the absence of subsurface sediments that would prevent upward flow to surface waters, the buoyant freshwater effluent injected down the wells will rapidly vertically migrate through the highly transmissive Key Largo Limestone and Miami Limestone to reach surface waters. To develop his opinion, Zednek reviewed a Florida Geological Survey boring log ("FGS Log") approximately one-third mile from the Existing Wastewater Treatment Facility and a Universal Engineering Services geotechnical study boring log ("UES Log") performed on the KWRU site. The FGS Log was prepared specifically to analyze the subsurface geology. The UES Log was performed as part of a geotechnical study to analyze subsurface conditions onsite specifically for the purpose of determining the load-bearing capability of the KWRU site to support a concrete water tank. As such, the FGS Log provides a more precise view of the subsurface geology in the vicinity of the KWRU site.36/ Based on the UES Log, Zednek opined that there are no confining layers underlying the KWRU site. The UES Log for the site shows N-values, generated using an ASTM-designated process for determining the resistivity or strength of the subsurface, of between two and 43 for the first 60 feet of sediment below the surface. According to Zednek, an N-value of less than 50 indicates lack of a confining layer. Further, his review of the UES Log did not show the presence of Q-layers, which may function as semi-confining layers, or aquitards, that would substantially restrict the movement of fluid, including the injected effluent.37/ Based on the UES Log, Zednek opined that the limestone underlying the site is fractured, creating vertical pathways for the injected effluent to migrate upward to the surface. Zednek testified that the Key Largo Limestone, into which the effluent is injected, is very porous and highly transmissive, facilitating rapid migration once the effluent is injected. Based on his review of the FGS Log, Zednek testified that a Q-layer first appears at approximately 62 feet below the ground surface——below the depth of the injection wells' casing—— so it would not act as a confining layer for the injected effluent. Zednek further observed that this Q-layer is only 1.5 centimeters thick. In his experience, this thickness is not sufficient to create a confining or semi-confining layer. Zednek thus opined that the subsurface geology at the KWRU site will enable and facilitate vertical migration of the injected effluent to surface waters. Zednek also noted the proximity of the Safe Harbor channel cut. He opined that the injected effluent likely would horizontally migrate through the highly transmissive Key Largo Limestone,38/ then vertically migrate to surface waters through the "path of least resistance" at the Safe Harbor channel cut. As further support for his opinion, Zednek cited an interim report summarizing results of a subsurface dye tracer study performed for the Florida Keys Aqueduct Authority regional wastewater treatment facility. The study's purpose was to determine whether the subsurface geology at the Cudjoe Key location was sufficiently confining to prevent vertical migration of the injected effluent from shallow injection wells proposed at that facility. According to Zednek, the interim report showed that the subsurface at the injection site was not sufficiently confining to prevent the injected effluent from rapidly vertically migrating to surface waters. Petitioners also presented the testimony of John Paul, Ph.D., in support of their contention that the injected effluent from the Expanded Wastewater Facility would rapidly rise through the subsurface limestone up into surface waters. Dr. Paul testified regarding viral tracer studies he had conducted at Long Key, approximately 65 miles east-northeast of Stock Island, and at the Saddlebunch Keys, located approximately 20 miles east- northeast of Stock Island. In conducting these studies, Paul injected bacteriophage viruses into Class V wells and tracked their movement into surface waters. In the Long Key study, the injected viruses moved through the subsurface limestone to the south-southeast and appeared in surface waters in deep canals on the ocean side of U.S. 1 approximately 53 hours after injection. In the Saddlebunch Keys study, the viruses also appeared in surface waters some distance south-southeast of the location at which they were injected.39/ Paul acknowledged that when the viruses appeared in surface waters, they were detected at a concentration of one trillionth (.0000000000001 or 1 x 10-12) less than the concentration in which they had been injected, indicating significant dilution by ground water and/or surface waters. He also acknowledged that canals dredged to depths shallower than the injected depth may not facilitate rapid migration of the injected effluent to surface waters. In rebuttal, KWRU presented the testimony of Michael Alfieri, a Florida-licensed P.G. who specializes in hydrogeology. Alfieri examined the FGS Log and UES Log, and also reviewed the detailed lithology logs and photographs for the FGS Log. Based on his review of this information, Alfieri opined that the FGS Log indicates the presence of semi-confining layers that function as aquitards in the first 60 feet of subsurface sediment. Alfieri noted that the existence of an aquitard depends on the nature of the geologic materials present at that location, so that N-values do not perfectly correlate with the presence or absence of confining layers. Thus, a carbonate silt or clay having an N-value of only two may better function as an aquitard than a porous, transmissive limestone having an N-value of 50, and silts or clays having a thickness as little as one centimeter may function as an aquitard to significantly impede fluid flow.40/ Based on his review of the FGS Log and the detailed lithology log descriptions and photographs for the FGS Log, Alfieri observed four laminated calcrete zones, six Q-zones, and chalky limestone within the first 60 feet——all of which would function as aquitards to impede the vertical movement of the effluent.41/ Thus, according to Alfieri, the effluent is anticipated to migrate laterally from the injection wells below these confining layers before migrating through a vertical pathway to reach surface waters at an unknown location. To predict the likely migration pathway for the effluent, Alfieri conducted hydrological modeling using a simplistic SEAWAT computer model. He used horizontal and vertical transmissivity values for the subsurface strata derived from geological studies previously conducted in the Florida Keys. Although these studies indicate greater horizontal than vertical transmissivity, Alfieri assumed equal vertical and horizontal transmissivity for modeling purposes——necessarily yielding more conservative results than would be anticipated to occur in real life. Accordingly, the modeling results showed more rapid vertical migration than would be anticipated in real life when the Q-zones and calcrete layers depicted in the FGS Log are considered. Even with these conservative assumptions, the modeling results showed the injected effluent migrating horizontally at least a mile offshore42/ before migrating upward to surface waters. The persuasive evidence shows that the injected effluent will be confined to the subsurface and will travel laterally a substantial distance before rising to surface waters at some unknown location or locations offshore. Thus, the credible, persuasive evidence does not support the conclusion that the effluent will rapidly rise to the surface waters in the nearshore area in the vicinity of the KWRU site.43/ Narrative Nutrient Criteria Petitioners allege that the effluent injected down the wells into the ground water will reach surface waters, causing or contributing to a violation of the narrative nutrient criteria for surface waters codified in rules 62-302.530(47)(a) and (b).44/ In support, Petitioners presented the testimony of James Fourqurean, Ph.D., who has extensive experience in research on Florida Keys aquatic ecosystems in their healthy and imbalanced states. Dr. Fourqurean described these ecosystems in their healthy state and in their nutrient-enriched state. Florida Keys nearshore ecosystems normally are oligotrophic, which means they are nutrient-limited. Thus, they do not normally exhibit high chlorophyll-a levels and microalgae counts. When nutrient levels in the Florida Keys ecosystems increase——whether by increasing the concentration of nutrients in discharges or by increasing the volume of water containing nutrients——primary production, i.e., plant growth, increases. Seagrass communities are phosphorus-limited, so that when these communities are exposed to phosphorus-enriched water, the phosphorus is rapidly absorbed from the water column and is stored in the benthos.45/ This phosphorus capture initially leads to increased seagrass abundance, but as phosphorus enrichment continues, the community species composition rapidly shifts to favoring seaweed and microscopic algae, ultimately damaging or destroying the seagrass community. Coral reef communities similarly are nitrogen-limited. Thus, when coral reef communities are exposed to nitrogen- enriched water, they shift to algae-dominated communities——again, damaging or destroying the coral reef communities. Based on historical aerial photographs of the area surrounding Safe Harbor and his experience studying seagrasses in the Florida Keys, Fourqurean concluded that the natural seagrass populations in the entire Florida Keys National Marine Sanctuary area, which includes the Stock Island area, are experiencing ecological imbalance. On the basis of the water quality sampling he conducted in and around Safe Harbor, Fourqurean opined that the imbalance is the result of man-induced nutrient enrichment. However, he did not engage in field studies in and around Safe Harbor, so could not cite specific examples where seagrasses had been replaced by algal-dominated communities in that area. Fourqurean noted that human waste contains high concentrations of phosphorus and nitrogen. In his view, because the effluent from the Existing Wastewater Facility contains phosphorous, it necessarily constitutes a source of phosphorous in the surface waters in Safe Harbor, even though it is injected into ground water. However, he acknowledged the existence of numerous other sources of nitrogen and phosphorus in the Safe Harbor vicinity, including septic tanks, boat cleaning operations and pump outs, and storm water runoff. He further acknowledged that he did not know where or when effluent from the Existing Wastewater Facility (and, by extension, the Expanded Wastewater Facility) may reach surface waters. Fourqurean acknowledged that the Permit at Issue would authorize the injection of effluent treated to AWT standards into ground water, rather than directly to surface waters, and he further acknowledged that the total phosphorus and nitrogen loading from the Expanded Wastewater Facility would substantially decrease as a result of conversion to AWT, even though the volume of effluent discharged down the wells may as much as double. He remained concerned that the Expanded Wastewater Facility may contribute phosphorus——even in very small quantities——to surface waters, causing imbalance to seagrass communities. He also opined that when saline ground water and the fresher effluent mix, the resulting brackish solution would dissolve the calcium carbonate comprising the subsurface limestone, releasing stored phosphorus that would eventually reach surface waters and negatively affect nearshore seagrass communities, However, he acknowledged that depending on subsurface physical conditions and flow paths of the effluent, phosphorous, nitrogen, or both, may be completely removed prior to the effluent reaching surface waters. He further acknowledged that seagrass community health in the Florida Keys National Marine Sanctuary has improved in the last two years and that water quality also has improved, reversing a ten-year decline. This is consistent with replacement of onsite septic tanks by central wastewater treatment systems in the Florida Keys. On rebuttal, KWRU presented the testimony of William Precht, who has extensive experience with Florida Keys geology and aquatic communities. Precht confirmed the existence of numerous sources of significant nutrient enrichment in the Safe Harbor vicinity other than the Existing Wastewater Facility, and noted that these sources must be taken into account when analyzing nutrient enrichment in Safe Harbor. He testified that raw wastewater is particularly deleterious to benthic communities. Thus, connecting wastewater generators that currently use septic tanks to central wastewater treatment systems can significantly improve water quality. Precht observed that Fourqurean's single-day sampling in the Safe Harbor area provided information regarding variability in nutrient concentrations, but characterized Fourqurean's conclusion that the Existing Wastewater Facility was the source of the nutrients as "unscientific" because it was based on supposition rather than on testing. He opined that the limited data set gathered over a one-day period could not reliably identify the source of nutrient enrichment in Safe Harbor. Precht testified that flushing capability is a key influence on nutrient concentration in surface waters. The further from a natural marine environment that water quality testing is performed, the more likely water quality will be poor due to nutrient enrichment from land-based sources. Given the configuration of Safe Harbor, water quality would be poorest in the interior dead-end canals and would steadily improve as one moved into more open water and flushing increased, with the highest water quality in open waters outside the canal system. Precht opined that the presence of noxious benthic plant life in the Safe Harbor vicinity may be attributable the destruction of seagrass communities in the area by historical dredging, rather than due to nutrient enrichment. Based on the reduction in total nitrogen and total phosphorus loading as a result of implementing AWT, Precht opined that the proposed discharge will not negatively affect the biological communities in the Safe Harbor vicinity. He further opined that due to the rapid uptake of phosphorus in the marine environment and due to denitrification that occurs in ground water and in marine surface waters, there is little chance that any nutrient loading that may result from the injected effluent would cause damage to the coral reef environment. Also on rebuttal, Alfieri persuasively testified that although phosphate release does occur when freshwater is injected into limestone that formed in a saline environment, this process gradually occurs over "geologic time"——that is, over millions of years. Therefore, he did not anticipate a significant release of phosphate from the subsurface limestone as a result of the effluent discharge. Also, limestone rapidly absorbs phosphorous, so phosphorus in the injected effluent would be absorbed quickly by the subsurface limestone.46/ Further, in any event, the effluent will be diluted by at least seven orders of magnitude——that is, one hundred millionth (.00000001)——of the injected concentration by the ground water, and/or by surface waters (assuming the effluent eventually reaches surface waters). As discussed above, the Keys RAP was prepared in 2008 and updated in 2011. The Keys RAP prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. Pursuant to the Impaired Waters Rule and DEP's adoption of the Keys RAP, activities that are consistent with the Keys RAP are considered to provide reasonable assurance that the narrative nutrient criterion in rule 62-302.530(47)(b) will be met. As discussed above, the Project will expand a centralized wastewater treatment plant that will accept, and treat to AWT standards, wastewater generated by development on Stock Island——including development that currently relies on onsite septic tanks for wastewater disposal. The Project is consistent with the Keys RAP, so there is reasonable assurance that the Project will meet the narrative nutrient criterion in rule 62-302.530(47)(b). The persuasive evidence shows that the Project will not cause or contribute to alterations of nutrient concentrations in water bodies so as to cause an imbalance in natural populations of aquatic flora or fauna. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the narrative nutrient criterion in rule 62-302.530(47)(b). Further, for the reasons discussed below, it also is determined that the Project will not violate the narrative nutrient criterion codified at rule 62-302.530(47)(a). Numeric Nutrient Criteria Petitioners also allege that the effluent will cause or contribute to violation of the estuary-specific numeric interpretations of the narrative nutrient criteria for the Back Bay nutrient region, codified at rule 62-302.532(1)(g)1., and the Lower Keys nutrient region, codified at rule 62-302.532(1)(g)3. In support, Petitioners cite the results of surface water sampling performed by Fourqurean in the Safe Harbor area showing high levels of nitrogen, phosphorus, and chlorophyll-a. Petitioners contend that these high nutrient levels evidence that the existing injection wells already are causing or contributing to surface water quality violations in the waters surrounding Stock Island, and that the increased effluent discharge from the proposed new injection wells will exacerbate this situation, further causing or contributing to violations of surface water quality standards. In preparing his opinion regarding the effect of the proposed injection wells on surface water quality, Fourqurean sampled surface water quality on one day at nine stations located in the vicinity of Stock Island, ranging from shallow waters inside the Safe Harbor basin to deeper waters offshore. Samples were collected at the surface and at a depth of one meter below the surface following the standard operating procedures for water quality sampling established by the Florida Keys Water Quality Protection Program. Fourqurean testified that the samples collected at the stations inside the Safe Harbor basin and near the shore of Stock Island showed very high levels of chlorophyll-a, evidencing that these areas are dominated by microalgae and, thus, are eutrophic. Additionally, the samples collected inside the Safe Harbor basin exhibited very high phosphorus concentrations—— almost three times greater than the estuary-specific numeric nutrient criterion for phosphorus. Phosphorus concentrations correspondingly decreased as samples were collected outside of the basin and offshore. Nitrogen concentrations followed a similar pattern in the sampling that Fourqurean conducted inside and outside of the Safe Harbor basin. According to Fourqurean, the high nutrient concentrations in the samples taken in Safe Harbor, when compared to the lower concentrations in samples taken outside of Safe Harbor, evidence the existence of a large source of phosphorous and nitrogen in Safe Harbor——in his view, the Existing Wastewater Facility. However, Fourqurean acknowledged that there are many potential nutrient enrichment sources on Stock Island, including fishing operations, boat sewage pump-outs, and direct discharges of storm water to surface waters. He further acknowledged that the specific source of phosphorus and nitrogen in the surface waters surrounding Stock Island cannot be identified. He did not opine as to the relative amounts of nutrients in surface waters that he believes are being contributed by the Existing Wastewater Facility or that will be contributed by the Expanded Wastewater Facility, as compared to other nutrient sources in the Safe Harbor area. He also acknowledged that a scientifically-valid water quality study would require more than a single day of sampling.47/ Kenneth Weaver, environmental administrator for DEP's Standards Development Section,48/ credibly and persuasively testified, and the water quality data for nutrients and chlorophyll-a collected in the WBIDs surrounding Key West and Stock Island show, that the surface waters in these WBIDs meet the applicable NNCs.49/ Historical water quality data also show that since 2008, the surface waters in these WBIDs continuously have met the baseline concentrations on which the NNCs were established and adopted. Even with the increased volume of wastewater treated by the Expanded Wastewater Facility, implementation of the AWT standard by the facility's wastewater treatment trains will substantially reduce the amount of total nitrogen and total phosphorus discharged into ground water through the injection wells. Specifically, for total nitrogen, the concentration will be reduced from 13.92 mg/L to 2.25 mg/L, and the total amount of nitrogen loading will be reduced from 58 to 15.9 pounds per day, representing a total net reduction of 72.4 percent in the discharge of total nitrogen. For total phosphorus, the concentration will be reduced from 3.47 mg/L to .75 mg/L, and the total amount of phosphorus loading will be reduced from 14.4 to 5.3 pounds per day, representing a total net reduction of 63.3 percent in the discharge of total phosphorus.50/ Weaver addressed the effects of these projected nutrient discharge concentrations on the surface waters in WBIDs 8074 and 8079, which comprise the portions of the Lower Keys Region and Back Bay Region closest to the KWRU site. He opined that, because these regions are currently meeting the applicable NNCs for nitrogen and phosphorus, and because KWRU's implementation of AWT will result in substantial reduction of total nitrogen and phosphorus loading, the NNCs will continue to be met in these regions——even in a "worst-case" scenario that assumes all of the treated effluent from the Expanded Wastewater Facility is disposed of through the injection wells and reaches the surface. The persuasive evidence shows that the Project will not cause or contribute to violations of the applicable numeric nutrient criteria. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the applicable numeric nutrient criteria in rule 62-302.532(1)(g)1. and 3. Surface Water "Free-From" Standards Petitioners allege that the effluent contains iron and copper above detection limits, as well as personal care products and pharmaceuticals, and that these constituents violate rules 62-302.500(1)(a)5. and 62-302.530(61). Rule 62- 302.500(1)(a)5. requires all surface waters of the state to be free from domestic, industrial, agricultural, or other man- induced non-thermal components of discharges which, alone or in combination with other components of discharges (whether thermal or non-thermal), are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species, unless specific standards for such components are established by rule. Rule 62-302.530(61) effectively requires surface waters to be free from substances in concentrations which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants. These rules collectively comprise the "free-from" standards for surface waters. Petitioners presented no evidence to substantiate the allegation that the effluent from the Expanded Wastewater Facility will contain pharmaceuticals or personal care products. However, even assuming these constituents were present in the effluent, Petitioners did not present evidence showing that they are carcinogenic; mutagenic; or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species; or that they are injurious or chronically toxic to, or produce adverse physiological or behavioral response, in humans, animals, or plants. Petitioners did not present evidence showing that the effluent contains copper and iron in quantities that violate any applicable surface water quality standards, including the surface water "free-from" standards. Paul testified, based on sampling he conducted at domestic wastewater outfalls discharging directly to surface waters, that effluent treated to AWT standards often contains pathogenic bacteria and viruses that constitute threats to human health. On this basis, he opined that even though the effluent from the Expanded Wastewater Facility is treated to AWT, it may contain pathogenic constituents that are harmful to human health. However, as previously discussed, the evidence shows that the effluent discharged through KWRU's injection wells will be substantially diluted by groundwater, and also by surface waters to the extent it reaches surface waters at some unknown location. Accordingly, the results of Paul's pathogen studies cannot be extrapolated to conclude that KWRU's effluent also will contain pathogenic bacteria and viruses in such amounts as to constitute a threat to human health. Petitioners failed to show that the effluent disposed of in the injection wells will cause or contribute to violations of the surface water quality standards in rules 62- 302.500(1)(a)5. and 62-302.530(61). Dilution to Meet Surface Water Quality Standards Petitioners allege that KWRU is relying on dilution of the effluent in order to meet surface water quality standards without having been permitted for a mixing zone, in violation of rule 62-302.500(1)(c).51/ This contention lacks merit. As discussed in detail above, the credible, persuasive evidence establishes that the effluent discharged through the injection wells will not violate water quality standards for and parameters, including for nutrients, and will not cause or contribute to the violation of water quality standards. The credible, persuasive evidence establishes that once injected, the effluent will horizontally migrate a considerable distance before it may migrate vertically to reach surface waters. The parties generally agree that ground water and surface waters are "connected" in the Florida Keys. To that point, although it appears likely that at some point the effluent will reach surface water, the evidence does not establish that is an absolute certainty. Nonetheless, even assuming the effluent would reach surface waters at some unknown location and time, the persuasive evidence shows that it would be so substantially diluted by the ground water that it would neither cause nor contribute to violations of surface water quality standards. Further, the persuasive evidence, consisting of Weaver's "worst case" analysis of nutrient loading from the effluent discharge, which assumed no dilution by ground water, establishes that even if the effluent——which will be treated to AWT standards——were discharged directly into surface waters, it would meet the applicable nutrient criteria. Finally, Petitioners' claim assumes that the effluent will be discharged into surface waters. However, as discussed above and in greater detail below, to the extent the effluent ultimately may be discharged to surface waters, such discharge would be indirect, so would not be subject to statutory and rule provisions requiring establishment of a mixing zone. For these reasons, Petitioners failed to prove that KWRU violated any applicable law or rule by not requesting and obtaining a mixing zone for the discharge of the effluent through the injection wells. Class V Injection Wells in Monroe County Petitioners also allege that issuance of the Permit at Issue violates rule 62-528.630(7), which requires all Class V Group 3 domestic wastewater injection wells in Monroe County to provide reasonable assurance that operation of the well will not cause or contribute to a violation of surface waters standards as defined in chapter 62-302. As discussed above, the credible, persuasive evidence establishes that the operation of the wells as authorized under the Permit at Issue will not cause or contribute to violations of surface water quality standards codified in chapter 62-302. Accordingly, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it violates rule 62-528.630(7). Antidegradation Petitioners contend that the Permit at Issue must be denied because KWRU failed to provide reasonable assurance that the injection of effluent will not violate the antidegradation requirements applicable to surface waters codified at rules 62- 4.242, 62-302.300, 62-302.530(47)(a), and 62-302.700(1). This contention lacks merit. As more fully discussed below, the antidegradation requirements in these rules apply only to a direct discharge to surface waters, which is not present in this case. Here, the evidence clearly establishes that the injection wells do not directly discharge effluent into surface waters. It is undisputed that the effluent will be injected from the wells into Class III ground water, where it will migrate through the subsurface strata. Although it is likely that, due to a "connection" between ground water and surface waters, the effluent ultimately will reach surface waters at some unknown location or locations at some unknown time, this constitutes an indirect discharge, which is specifically excluded from the term "discharge of a pollutant." Fla. Admin. Code R. 62-620.200(13). However, even if the antidegradation rules did apply to the discharge of the effluent through the injection wells, Petitioners failed to prove that the discharge would degrade surface waters. As discussed above, the credible, persuasive evidence establishes that the surface waters in the Florida Keys, including those in and around Stock Island and Key West, currently meet the narrative and/or nutrient criteria, as applicable, and that effluent discharged through the injection wells will be treated to AWT standards, substantially reducing the facility's total nutrient loading below current levels. Thus, the credible, persuasive evidence established that, even in a "worst-case" scenario, which assumes no dilution of the effluent by ground or surface waters, the effluent still would not cause or contribute to a violation of the narrative or numeric nutrient criteria. As discussed above, the credible, persuasive evidence showed that, in fact, the effluent will be very substantially diluted by the ground water into which it is injected, and will be further diluted if and when it ultimately reaches surface waters. For these reasons, Petitioners failed to prove that KWRU did not provide reasonable assurance that the disposal of the effluent through the injection wells would not degrade surface waters, in violation of rules 62-4.242, 62-302.300, 62- 302.530(47)(a), and 62-302.700(1). Alleged Violation of Ground Water Standards Petitioners allege that KWRU did not provide reasonable assurance that the injection wells would not violate applicable ground water standards. Petitioners further allege that there is an underground drinking water source under Stock Island. In that case, more stringent ground water quality and injection well rule standards would apply to operation of the injection wells. Petitioners did not present any credible, persuasive evidence to support these allegations. The persuasive evidence establishes that although there is a fresh water lens under Stock Island, it is not classified as an underground source of drinking water52/ due to its substantial variability in horizontal and vertical extent, which renders the salinity levels highly variable. Thus, the ground water at Stock Island is classified as Class G-III ground water which is non-potable ground water having a total dissolved solids content of 10,000 mg/L or greater, or having a total dissolved solids content of 3,000 to 10,000 mg/L and having been determined to have no reasonable potential as a future source of drinking water or designated by rule as an exempted aquifer. Only the minimum criteria for ground water, known as the "free-from" standards, apply to Class G-III ground water. Fla. Admin. Code R. 62-520.430(1). These criteria require that at all times and in all places, ground water be free from discharge components in concentrations that are carcinogenic, teratogenic, mutagenic, or toxic to humans; acutely toxic within surface waters affected by ground water; pose a serious danger to the public health, safety, or welfare; create or constitute a nuisance; or impair the reasonable and beneficial use of adjacent waters. Fla. Admin. Code R. 62-520.400. There is no evidentiary basis on which to infer that the effluent from Expanded Wastewater Facility that is disposed through the injection wells will violate the free-from standards KWRU's many years of effluent monitoring at the Existing Wastewater Facility show that the effluent does not violate these standards. Further, David Rhodes, a Florida-licensed P.G. employed by DEP, credibly testified that a violation of the free- from standards necessarily would entail the presence of toxic materials in KWRU's effluent and that there would be immediate and dramatic effects on the flora and fauna at the golf course, where reclaimed water is reused for irrigation. Since such effects never have occurred, it is reasonable to infer that the effluent from the Expanded Wastewater Facility will not violate the free-from standards.53/ Additionally, as previously addressed, the credible, persuasive evidence demonstrates that no surface water quality violations will result from installation and operation of the injection wells as part of the Expanded Wastewater Facility. Accordingly, the reasonable and beneficial use of adjacent waters will not be impaired due as a result of the injection wells. Petitioners also claim that due to inadequate treatment by the Expanded Wastewater Facility, the effluent disposed in the injection wells will contain unacceptably high levels of bacteria and viruses. The persuasive evidence establishes that KWRU provides high-level disinfection prior to injecting the effluent or sending the reclaimed water for reuse at the golf course. Historical monitoring data shows that KWRU's effluent complies with applicable microbial standards, and unrebutted evidence consisting of quality-related beach closure data for the Florida Keys, gathered as part of the Department of Health's Healthy Beaches monitoring program, indicates that no beach closings in the Florida Keys ever have been attributed to KWRU's Existing Wastewater Facility. Petitioners did not prove that KWRU failed to provide reasonable assurance that operation of the injection wells authorized as part of the Project will not result in violations of applicable ground water standards. To the contrary, KWRU provided reasonable assurance that the effluent from the Expanded Wastewater Facility disposed in the injection wells authorized as part of the Project will not violate any applicable ground water standards. Alleged Water Quality Violations Due to Reuse System Petitioners allege that KWRU did not provide reasonable assurance that the storage of up to 1 MGD of reclaimed water in the reuse system storage ponds on the Key West Golf Club golf course will not cause or contribute to a violation of surface water quality standards and ground water standards. Specifically, Petitioners posit that, because the ponds are unlined, reclaimed water from the Expanded Wastewater Facility will leach from the ponds into the ground water and reach surface waters, violating surface water quality standards and ground water standards and negatively impacting human health through high levels of microbial pathogens, pharmaceuticals, and personal care products. Petitioners further allege that discharge of reclaimed water from the ponds into the ground water could mobilize constituents of concern from the Key West Landfill and a closed waste-to-energy facility, both of which are near the golf course, ultimately resulting in surface water quality standards and ground water violations. In support of these contentions, Petitioners presented the testimony of Scott Zednek, who testified that the reclaimed water, which is fresher than the surrounding ground water, may leach from the ponds into the ground water, and thereafter potentially may reach surface waters. According to Zednek, this leaching could occur because the ponds are unlined. Additionally, Zednek opined that, because there is a closed landfill near the golf course, the reclaimed water leaching from the reuse system ponds could mobilize and spread contaminants from the landfill. The persuasive evidence demonstrates that storage of the reclaimed water in the reuse system ponds will not result in violations of ground water standards or surface water quality standards. Although the golf course ponds are unlined in the sense that a high-density polyethylene or impermeable clay liner has not been installed on the bottom and sides of the ponds, over the years, marl has formed on the bottom and sides of the ponds, creating an aquitard that substantially confines the reclaimed water to the ponds, rather than allowing it to readily leach into the ground water. Further, the reclaimed water generally is less saline than the ground water underlying the course, so tends to "float" on top of, rather than readily mixing with, the denser, more saline ground water. Additionally, the evidence shows that years of historical ground water monitoring data obtained through monitoring wells on the golf course near the reuse system ponds showed no ground water standards violations as a result of storing reclaimed water from KWRU in the ponds.54/ Because the amount of reclaimed water being sent to the reuse storage ponds is not being changed by the Project, and the nutrient levels in the reclaimed water are being through AWT, there is no factual basis from which to infer that storage of the reclaimed water in the pond will result in violations of ground water standards or surface water quality standards. The persuasive evidence also does not support Zednek's view that reclaimed water leaching into the ground water from the storage ponds will mobilize pollutants under the nearby landfill. As discussed above, the persuasive evidence establishes that, due to the aquitard, there will be very little leaching of reclaimed water into the ground water, and even if such leaching did occur, there would be very little mixing of the reclaimed water with the more saline ground water. As such, there is no demonstrated factual basis on which to infer that reclaimed water will flow under, and mobilize and spread pollutants from, the landfill. Further, the evidence establishes that the predominant ground water flow direction under Stock Island is to the south- southeast. Since the landfill is located north of the reuse system ponds, any reclaimed water that did enter ground water would flow south-southeast, away from the landfill. Zednek also opined that if the storage ponds overflowed, the reclaimed water could run off into surface waters, resulting in surface water quality violations. However, the evidence establishes that KWRU will only send as much reclaimed water to the reuse storage ponds as the Key West Golf Club requests, so any assertion that the ponds will overflow is speculative. Further, even if the ponds were to overflow, Petitioners did not show that the reclaimed water would flow into surface waters, or that it would violate surface water quality standards if it were to flow into surface waters. Petitioners did not prove that KWRU failed to provide reasonable assurance that the storage of reclaimed water in the reuse system storage ponds at the Key West Golf Club will not violate any ground water standards. Stated another way, KWRU provided reasonable assurance that the storage of reclaimed water in the reuse system ponds at the Key West Golf Club golf course will not cause or contribute to violations of ground water standards or surface water quality standards. Applicability of AWT to Existing Wastewater Facility Commencing January 1, 2016, the two new treatment trains authorized by the Permit at Issue must meet the AWT standards. These treatment trains are authorized to treat wastewater to specified secondary standards through December 31, 2015. Petitioners assert that the Permit at Issue must be denied because the two new treatment trains should be required to meet AWT standards immediately upon operation, and that allowing the new treatment trains to meet secondary standards through December 31, 2015, violates section 403.806(10) and rule 62- 620.620(4). Sections 403.086(10)(c) and (d) expressly impose the AWT standards on all new or expanded domestic wastewater discharges after December 31, 2015. Accordingly, the Permit at Issue is completely consistent with the statute. Further, the Permit at Issue does not violate rule 62- 620.602(4). That rule requires a wastewater facility permit applicant to make certain specified demonstrations when a permit is renewed, revised, or reissued having a less stringent effluent limitation than contained in a previous permit. Although the Existing Permit states that the Existing Wastewater Facility has been modified to meet the AWT standards, it further states: "[t]he extended aeration process will be switched to the AWT nutrient removal system prior to January 1, 2016." The clear import of this statement is that the AWT standards are not required to be met until January 1, 2016, consistent with section 403.806(10). Because the Permit at Issue also requires the new treatment trains to meet the AWT standards commencing on January 1, 2016, the Permit at Issue does not impose a less stringent effluent limitation than that imposed by the Existing Permit; accordingly, KWRU is not required to make the so-called "anti-backsliding" demonstrations set forth in rule 62- 620.620(4). Furthermore, it is undisputed that the new treatment trains will not be constructed and operational before January 1, 2016; thus, as a practical matter, the new treatment trains must meet the AWT standards immediately upon going into operation. Thus, Petitioners have not shown that the Permit at Issue should be denied on the basis that it violates section 403.806(10) and rule 62-620.620(4). Petitioners' Standing As noted above, Petitioner Halloran, resides in Key West, Florida. His residence fronts on the water and he owns a boat. Halloran and his family use and enjoy the waters around Key West for swimming, fishing, kayaking, and other in-water recreational uses, eat local-caught seafood, and engage in nature photography. Halloran also owns rental properties that front on the water, and he owns and rents out dock space for houseboat mooring. He is a member of Last Stand. Halloran has challenged the Permit at Issue because he is concerned that the increased discharge of effluent from the Project down the injection wells will degrade the waters around Key West where he and his family engage in in-water recreational uses. He also is concerned that the increased effluent discharge, particularly nutrients, will harm the seagrasses, coral reefs, and the benthic communities in the waters around Key West. Halloran read the initial petition prepared and filed in this proceeding, and he skimmed the Amended Petition specifically to determine the changes from the initial Petition.55/ He acknowledges that he does not completely recall the entire contents of the initial petition or the Amended Petition. Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Naja Girard D'Albissin, a member of the Board of Directors of Last Stand, appeared on behalf of Last Stand. D'Albissin testified that Last Stand currently has approximately 105 members. Last Stand's mission is to promote, preserve, and protect the quality of life in Key West and the Florida Keys, with particular emphasis on protecting the natural environment. Last Stand historically has engaged in environmental advocacy directed toward governmental entities and engaged in litigation opposing activities that its members believe would harm the natural environment. In July 2014, Last Stand's Board of Directors voted to challenge the Permit at Issue. Respondent DEP stipulated that 52 members of Last Stand spend time or reside in Monroe County, 50 members enjoy the waters and natural environment of the Florida Keys, and 50 members believe that their use and enjoyment of the natural environment and economic interests in Monroe County will be adversely affected by the Project. Last Stand tendered, for admission into evidence, affidavits of some of its members attesting to the substantial interests they contend will be injured by the Project. However, Last Stand had refused to allow Respondents to engage in discovery regarding these members' alleged substantial interests; accordingly, the undersigned did not allow these members to testify at the final hearing.56/ The affidavits were excluded from admission into evidence as unsupported hearsay. See § 120.57(1)(c), Fla. Stat. Entitlement to Permit at Issue KWRU met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permit at Issue by entering into evidence the applications and supporting materials for the Permit at Issue for the Project. Additionally, KWRU presented persuasive, competent, and substantial evidence beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate its entitlement to the Permit at Issue. Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding to demonstrate that the Project does not meet all applicable statutory and rule requirements. Furthermore, on rebuttal, KWRU and DEP thoroughly addressed and rebutted the grounds that Petitioners allege justify denial of the Permit at Issue. The persuasive evidence demonstrates that the Project meets all applicable statutory and rule requirements. Accordingly, KWRU is entitled to issuance of the Permit at Issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
The Issue Whether the Petitioner's applications for (1) a general permit to operate a used oil refining facility and 2) an operation permit to operate an industrial waste water treatment system, at the same facility, in conjunction with the used oil refining operation, should be granted.
Findings Of Fact Sometime in the 1950's George Davis, the owner and operator of Davis Refining Corporation, became interested in used oil recycling and refining. From that time on, Mr. Davis worked towards his dream of operating a used oil recycling and refining center by gradually accumulating the land and equipment to operate such a facility. In order to further his goal, Mr. Davis acquired property located at 2606 Springhill Road in Tallahassee, Florida. Eventually, Mr. Davis applied for a permit to construct an industrial waste water treatment system in conjunction with a used oil refining facility on the Springhill Road property. On January 21, 1986, the Department issued a construction permit to the Petitioner to modify and construct an industrial waste water treatment system. The construction permit was subsequently extended on three different occasions. The last extension, granted May 30, 1989, extended the construction permit to its full statutory limit of five (5) years. The final expiration date of the construction permit was January 20, 1991. Petitioner was notified of the expiration date by the Department. During the time of the construction permit, Mr. Davis constructed an industrial waste water treatment system and an oil recycling and refining facility on his property on Springhill Road. Less than sixty days prior to expiration of the construction permit for the industrial waste water treatment system, the Petitioner submitted an application for renewal of an operation permit. The Department received the application on January 10, 1991. Unfortunately, the application for renewal of an operation permit was not the correct form since the Petitioner never had an operation permit. The application was rejected by the Department because it was the incorrect form and did not have the required permit fee. In March of 1991, after the expiration of Petitioner's industrial waste water treatment construction permit, Petitioner filed the correct application for an industrial waste water treatment operation permit and submitted the required fee. The industrial waste water operation permit application was denied by the Department because it was incomplete and lacked the required reasonable assurances that the system would not be a source of pollution in violation of water quality standards or contrary to the public interest. On October 29, 1990, Petitioner submitted a Used Oil Recycling Facility General Permit Notification to the Department. By letter dated November 28, 1992, the Department timely denied use of a general permit to operate a Used Oil Recycling Facility because the application lacked the requisite reasonable assurances that the proposed operation of the facility would not discharge, emit, or cause pollution so as to violate water quality standards or be contrary to the public interest. Even though the construction permit has expired and no additional permits have been issued by the Department the Petitioner continues to accept used oil and oily industrial waste water from outside sources for treatment. Currently, the facility consists of a used oil refining plant, industrial waste water treatment system, and separator (coalescer) system and water treatment pond. Munson Slough separates the facility into two parts. The used oil refining portion of the facility together with the industrial waste water treatment system input and separator (coalescer) system are located on the east side of Munson Slough. The refining portion of the facility is immediately adjacent to the slough. The industrial waste water treatment pond is located on the west side of Munson Slough. The industrial waste water treatment pond is likewise immediately adjacent to the slough. The industrial waste water treatment system is an integral part of the used oil recycling operation. Used oil and oily waste water are accepted from outside sources and are put through the separator system to separate the oil from the water and other contaminants. The separated oil is then re-refined at the refinery. The remaining industrial wastewater contains oily materials, solids, and volatiles. The separated water is pumped through a pipe underneath Munson Slough to the industrial waste water treatment pond. Additionally, the surface and stormwater runoff from the refining facility on the east side of Munson Slough also goes through the same industrial waste water treatment system and is pumped into the waste water treatment pond. Runoff from the refinery contains various pollutants as well as pollutants from any spills occurring at the refinery. Both the general permit for the refining facility and the operation permit for the industrial waste water treatment system depend on the ability of the waste water treatment system and pond to adequately handle the waste water and runoff water from the refining facility without permitting leaks of the wastewater into the environment. The industrial waste water treatment pond is lined with soil cement. Soil-cement is not a common material used in the construction of industrial waste water pond liners and the Department's personnel is not familiar with the material and its ability to function as an adequate liner for an industrial waste water pond. The soil-cement is a sand-cement mix (10 percent). The sand-cement was intended to be layered to a depth of six inches on the sides and bottom of the pond. The evidence showed that portions of the liner achieve a six inch depth. However, the evidence did not show that the soil-cement's depth is consistent throughout the liner since no as-built plans or certification for the facility were submitted to the Department and the engineer for the project at the time of its construction was not called to testify on whether the pond was constructed according to the construction plans. The sand cement liner overlays a high clay content pond bottom. The estimated (not established) permeability rate of the sand-cement pond liner is 1/100,000,000 centimeters per second and is within the Department's parameters for the adequacy of a lining material if that material is shown to actually have such a permeability rate by the time the operation permit is applied for. No materials data was submitted to the Department which demonstrated that the sand- cement liner of the pond actually achieved the permeability rate of 1/100,000,000 centimeters per second or the deterioration rate of such a liner. Likewise, no expert witness was called to establish such facts. The small amount of information given the Department on the sand-cement liner in Petitioner's application for its construction permit for the facility is inadequate to establish the actual performance of the sand-cement liner for purposes of the operation permit. Water from the industrial waste water treatment pond is discharged to the City of Tallahassee's waste water treatment system. The City of Tallahassee requires the industrial waste water treatment pond water to be tested for water quality prior to discharge to the City's waste water treatment system. The City requires that the waste water pond be aerated for approximately four (4) hours before discharge to the City waste water treatment system. One function of the aeration is to "blow off" the volatile contaminants from a used oil refining operation which might be present in the ponds water prior to aeration. However, the results of one water quality test indicated the presence of volatile substances and nonvolatile substances consistent with petroleum product contamination. Unfortunately, the results of only one water quality test were presented at the hearing. No conclusions either for or against the Petitioner can be drawn from the results of one testing period. Therefore, such test results cannot be used to affirmatively establish reasonable assurances that the pond is not leaking. In an unprecedented effort to aid the Petitioner in getting approval of his applications, the Department agreed to accept Petitioner's submittals and assertions regarding the integrity of the pond's liner as reasonable assurance if several soil borings and their subsequent analyses did not reveal any indication of contamination from the pond to soil or ground water. One soil boring was obtained by Dr. Nayak and six soil borings were obtained jointly by Dr. Nayak and the Department from locations around the industrial waste water treatment pond for chemical analysis. Unfortunately, chemical analysis of the soil borings revealed the presence of contaminants consistent with contamination parameters for waste oil recyclers. Therefore leakage or improper discharge from the pond could not be ruled out and it fell to the Petitioner to demonstrate that the contamination found in the soil was not the result of leaks or discharge from the pond. Petitioner points to the fact that the pond is supposedly setting on an impermeable layer of clay. However, it is not unusual for the geological features of a site such as the one upon which the treatment pond is located to vary within the limited site area. The different sites of the soil borings around the pond revealed that the substrata differed between the bore sites. The Department's geological expert testified that, based upon his observation at the site, including observing and participating in the taking of soil samples from the borings, that groundwater contamination was likely. In short, it is impossible to determine the geological composition of the entire site by the one soil boring taken by Dr. Nayak or even by the six borings performed jointly by the parties. Dr. Nayak's testimony that he is able to determine the geological features of the pond site with one boring is not credible nor is Dr. Nayak qualified to make such an assessment even if such were an acceptable scientific method for making such determinations. Therefore, the evidence failed to demonstrate that the waste water pond is sited over an impermeable layer of clay. Moreover, even if it were, then any contaminated water improperly discharging through the bottom layer of the pond would migrate along the top of the clay until it reached Munson Slough and still be a pollution problem for water quality purposes. The Petitioner has not, at any time prior to or during the hearing, obtained any environmental background of the site. Nor was any such information introduced at the hearing. The on-site observation of the taking of soil bores, visual inspection of the site, and the chemical analysis of the soil samples taken from the borings are consistent with petroleum contamination resulting from the industrial waste water pond. There are procedures and courses of action which the Petitioner can pursue to address the apparent contamination problems and to demonstrate the reasonable assurances necessary to qualify for the required Department permit to operate the used oil recycling facility. The Department has made many suggestions to the Petitioner as to various methodologies that the Petitioner might employ in order to endeavor to provide reasonable assurances that the waste water treatment pond does not leak. These suggestions include emptying the pond and examining the liner, performing a materials balance calculation, or performing more soil borings sampling and testing, together with assembling additional hydrological data. However, other than chemical analysis of the soil borings, the Petitioner has not opted to pursue any suggested procedure for obtaining the desired permit and did not submit sufficient competent, substantial evidence of any credible or scientifically reasonable alternative explanations for the presence of indicator chemicals in the soil borings. In short, The Petitioner has not submitted sufficient evidence nor provided any reasonable assurance that the operation of the used oil recycling facility will not discharge, emit or cause pollution. The Petitioner also has not provided reasonable assurance that the operation of the used oil recycling facility will not violate water quality standards or be contrary to the public interest. Similarly, there was insufficient evidence and no reasonable assurance submitted or offered by the Petitioner that the industrial waste water treatment system could be operated without violating water quality standards or being contrary to the public interest. Therefore Petitioner is not entitled to either a general permit for a used oil recycling facility or an operation permit for the industrial waste water treatment system used in conjunction with the used oil facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that a Final Order be entered denying the Petitioner both the general permit to operate a used oil recycling facility and the operation permit for the industrial waste water treatment system without prejudice to reapplying for such permits. DONE and ENTERED this 9th day of September, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5140 and 92-1560 The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, and 29 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 11, 15, 27 and 30 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraphs 1 and 2 of the Petitioner's Proposed Findings of Fact were introductory and did not contain any factual matters. The facts contained in the 1st, 2nd and 7th sentences of paragraph 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the 4th, 5th, 6th and 7th sentences of paragraph 5 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence. The facts contained in paragraphs 3, 6, 7, 10, 12 and 13 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the 3rd and 5th sentences of paragraph 8 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. The facts contained in the last sentence of paragraph 11 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dr. S. K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Candi Culbreath, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether SFP's revised application for a permit to construct a sewage treatment plant with percolation ponds should be granted or, for failure of SFP to give reasonable assurances that the plant will not cause pollution significantly degrading the waters of Gator Cove, be denied?
Findings Of Fact About 1,500 feet from Santa Fe Lake's Gator Cove, SFP proposes to build an extended aeration package sewage treatment plant to serve a "private club with restaurant and overnight accommodations," SFP's Exhibit No. l, to be built between the plant and the lake, on the western shore of Santa Fe Lake, just south of the strait or pass connecting Santa Fe Lake and Little Santa Fe Lake. The site proposed for the waste water treatment plant lies at approximately 177 or 178 feet above sea level, north of Earleton on county road N.E. 28 near State Road 200A, some three miles north of State Road 26, in unincorporated Alachua County, Section 33, Township 8 South, Range 22 East. SFP's Exhibit No. 1. Santa Fe Lake, also called Lake Santa Fe, and Little Santa Fe Lake, also called Little Lake Santa Fe, are designated outstanding Florida waters by rule. Rule 17-3.041(4)(i), Florida Administrative Code. Lake Santa Fe "is . . . the sixth largest non-eutrophic lake in the State of Florida . . . [and] the last remaining large non-eutrophic lake in Alachua County." (0.367). Recreation is a "beneficial use" of these waters. The Lakes Santa Fe are at an elevation of approximately 140 feet above sea level, and their level varies within a range of four feet. Input The proposed plant is to treat sewage generated by staff, by diners at a 150-seat restaurant, and by inhabitants of 150 lodge or motel rooms, comprising 100 distinct units. On the assumptions that 150 rooms could house 275 persons who would generate 75 gallons of sewage a day for a daily aggregate of 20,625 gallons, and that a 150-seat restaurant would generate 50 gallons of sewage per seat per day, full occupancy is projected to engender 28,125 gallons of sewage per day. This projection is based on unspecified "D.E.R. criteria; (5.35) which the evidence did not show to be unreasonable. Full occupancy is not foreseen except around the Fourth of July, Labor Day and on other special occasions. An annual average flow of between 15 and 20,000 or perhaps as low as 13,000 gallons per day is envisioned. (S.38) The proposed plant is sized at 30,000 gallons per day in order to treat the peak flow forecast and because package plants are designed in 5,000 gallon increments. Sluice-gate valves and baffling are to permit bypassing one or more 5,000 gallon aeration units so plant capacity can be matched to flow. The composition of the sewage would not be unusual for facilities of the kind planned. As far as the evidence showed, there are no plans for a laundry, as such, and "very little laundry" (S.37) is contemplated. The health department would require grease traps to be installed in any restaurant that is built. Gravity would collect sewage introduced into 2,000 feet of pipe connecting lodging, restaurant and a lift station planned (but not yet designed) for construction at a site downhill from the site proposed for the water treatment plant. All sewage reaching the proposed treatment plant would be pumped 3,000 feet from the lift station through a four-inch force main. Influent flow to the treatment plant could be calculated by timing how long the pump was in operation, since it would "pump a relatively constant rate of flow." (S.39) Treatment Wastewater entering the plant would go into aeration units where microorganisms would "convert and dispose of most of the incoming pollutants and organic matter." (S.40) The plant would employ "a bubbler process and not any kind of stirring-type motion . . . [so] there should be very little:; aerosol leaving the plant," (S.42) which is to be encircled by a solid fence. Electric air blowers equipped with mufflers would be the only significant source of noise at the proposed plant, which would ordinarily be unmanned. If one blower failed, the other could run the plant itself. A certified waste water treatment plant operator would be on site a half-hour each week day and for one hour each weekend. SFP has agreed to post a bond to guarantee maintenance of the plant for the six months' operation period a construction permit would authorize. (0.63) The proposed plant would not "create a lot of odor if it's properly maintained." Id. The specifications call for a connection for an emergency portable generator and require that such a generator be "provide[d] for this plant. . . ." (S. 43). The switch to emergency power would not be automatic, however. A settling process is to follow extended aeration, yielding a clear water effluent and sludge. Licensed haulers would truck the sludge elsewhere for disposal. One byproduct of extended aeration is nitrate, which might exceed 12 milligrams per liter of effluent, if not treated, so an anoxic denitrification section has been specified which would reduce nitrate concentrations to below 12 milligrams per liter, possibly to as low as 4 or 5 milligrams per liter. Before leaving the plant, water would be chlorinated with a chlorinator designed to use a powder, calcium hypochlorite, and to provide one half part per million chlorine residual in the effluent entering the percolation ponds. A spare chlorine pump is to be on site. The effluent would meet primary and secondary drinking water standards, would have 20 milligrams or less per liter of biochemical oxygen demand or, if more, no more than ten percent of the influent's biochemical oxygen demand, and total suspended solids would amount to 20 milligrams or less per liter. (5.294- 295). Half the phosphorous entering the plant would become part of the sludge and half would leave in the effluent. Something like ten milligrams per liter of phosphorous would remain in the effluent discharged from the plant into the percolation ponds. (5.202). Although technology for removing more phosphorous is available (S.298, 0.170-171), SFP does not propose to employ it. Allen flocculation treatment followed by filtration could reduce phosphorous in the effluent to .4 milligrams per liter, but this would increase the cost of building the treatment plant by 30 to 40 percent; and operational costs would probably increase, as well, since it would be necessary to dispose of more sludge. (0.170-172). SFP did agree to accept a permit condition requiring it to monitor phosphorous levels in groundwater adjacent to the proposed plant. (0.63). Land Application Three percolation ponds are planned with an aggregate area of 30,000 square feet. At capacity, the plant would be producing a gallon and a half of effluent a day for each square foot of pond bottom in use. The ponds are designed in hopes that any two of them could handle the output of effluent, even with the plant at full capacity, leaving the third free for maintenance. The percolation ponds would stand in the lakes' watershed, in an area "of minimal flooding, (S.30) albeit outside the 100-year flood plain. Santa Fe Lake, including Gator Cove, and Little Santa Fe Lake are fed by groundwater from the surficial aquifer. All effluent not percolating down to levels below the surficial aquifer or entering the atmosphere by evapotranspiration would reach the lake water one way or another sooner or later. If percolation through the soils underneath the percolation ponds can occur at the rate SFP's application assumes, effluent would not travel overland into Lake Santa Fe except under unusually rainy conditions, which would dilute the effluent. Whether the planned percolation ponds would function as intended during ordinary weather conditions was not clear from the evidence, however. In the event the ponds overflowed, which, on SFP's assumptions, could be expected to happen, if peak sewage flaw coincided with weather more severe than a 25-year rainfall, effluent augmented by rainwater would rise to 179.87 NGVD (S.34), then overflow a series of emergency weirs connecting the ponds, flow through an outfall ditch, drain into a depression west of the ponds, enter a grassed roadside ditch, and eventually reach Lake Santa Fe after about a half a mile or so of grass swales. (5.69). Sheet flow and flow through an ungrassed gulley in the direction of Gator Cove (0.154) are other possible routes by which overflowing waters might reach the lake. (0.263). Since the facilities the plant is designed to serve are recreational, wet weather would discourage full use of the facilities and therefore full use of the water treatment system. Effluent traveling over the surface into Gator Cove would wash over vegetation of various kinds. Plants, of course, do take up phosphorous, but they don't do it forever, and if you leave a plant system alone, it will come to a steady state in which there is no net storage of phosphorous in the plant material. (0.166) Whether by sheet flow or by traversing swales, overland flow would reach Gator Cove within hours. Effluent traveling through the surficial aquifer would not reach the lake for at least five years. (S.238-9). It could take as long as 45 years. (0.316). In the course of the effluent's subterranean passage, the soil would take up or adsorb phosphorous until its capacity to do so had been exhausted. In addition, interaction with certain chemicals found in the soil, primarily calcium, precipitates phosphorous dissolved in groundwater. As between adsorption and precipitation, the former is much more significant: "[W]ith a three-meter distance you can expect at least 70 to 80 percent removal of phosphorous just by a a[d] sorption alone." (0.21). Precipitated phosphorous does not return to solution, unless the soil chemistry changes. (0.19) Adsorption, however, is reversible, although not entirely, because of the "hysteresis phenomenon." (0.19) Eventually, a kind of dynamic equilibrium obtains to do with the binding of the phosphorous to soil constituents, binding or precipitation of phosphorous. At some point . all of the binding sites become saturated . [and] the amount of phosphorous leaving, into the lake really, will be equal to the amount of phosphorous going into the the system. When there is no more place to store the phosphorous in the ground, then the output is equal to the input and that is called the steady state. (0.161) Although precipitation of phosphorous would not reach steady state under "conditions that render the phosphorous-containing compound insolu[]ble," (0.168) these conditions were not shown to exist now "much less . . . on into perpetuity." Id. Spring Seep A third possible route by which the effluent might reach lake waters would begin with percolation through the sand, which is to be placed on grade and on top of which the percolation ponds are to be constructed. Underground, the effluent would move along the hydraulic gradient toward the lake unless an impeding geological formation (an aquiclude or aquitard) forced it above ground lakeward of the percolationi ponds. In this event, the effluent would emerge as a man-made spring and complete its trip to Gator Cove, or directly to the lake, overland. The evidence demonstrated that a spring seep of this kind was not unlikely. Relatively impermeable clayey soils occur in the vicinity. A more or less horizontal aquitard lies no deeper than four or five feet below the site proposed for the percolation ponds. Conditions short of an actual outcropping of clayey sand could cause effluent mounding underground to reach the surface. Nor did the evidence show that an actual intersection between horizontal aquitard and sloping ground surface was unlikely. Such a geological impediment in the effluent's path would almost surely give rise to a spring seep between the pond site and the lakes. In the case of the other percolation ponds in this part of the state that do not function properly, the problem is n [U] sually an impermeable layer much too close to the bottom of the pond," (S.179), according to Mr. Frey, manager of DER's Northeast District. Phosphorous in effluent travelling by such a mixed route would be subject to biological uptake as well as adsorption and precipitation, but again a "steady state" would eventually occur. On Dr. Bothcher's assumptions about the conductivity of the clayey sand (or sandy clay) lying underneath the topsoil, the effluent would accumulate as a mound of groundwater atop the clay unit, and seep to the surface in short order; and "after a matter of probably weeks and maybe months, it would be basically of the quality of the water inside of the percolation pond." (0.278). More Phosphorous in Gator Cove The total annual phosphorous load from all existing sources "to the lake" has been estimated at 2,942 kilograms. Assuming an average effluent flow of 17,000 gallons per day from the proposed plant, "the total phosphorous load [from the proposed plant] will be 235 kilograms per annum," (0.16), according to Dr. Pollman, called by SFP as an expert in aquatic chemistry. Even before any steady state condition was reached, 20.75 to 41.5 kilograms of phosphorous, or approximately one percent of the existing total, would reach the lake annually from the proposed plant, on the assumptions stated by Dr. Pollman at 0.22-23 (90 to 95 percent removal of phosphorous in the soils and average daily flow of 30,000 gallons). Santa Fe Lake is more than two miles across and two miles long, and Little Santa Fe Lake, which may be viewed as an arm of Santa Fe Lake, is itself sizeable, with a shoreline exceeding two miles. But Gator Cove is approximately 200 yards by 100 yards with an opening into Santa Fe Lake only some 50 to 75 yards wide. (0.154). On a site visit, Dr. Parks observed "luxuriant growth of submerged plants" (0.154), including hydrilla, in Gator Cove. If a one percent increase in phosphorous were diffused evenly throughout the more than eight square miles Santa Fe Lake covers, there is no reason to believe that it would effect measurable degradation of the quality of the water. Some nutrients are beneficial, and the purpose of classifying a lake is to maintain a healthy, well-balanced population of fish and wildlife. It's hard to see how 1.4 percent increase would lower the ambient quality. But . . . seepage into Gator Cove, which is a much more confined place [100 by 200 yardsj [would make it] quite probable that there would be a lowering of ambient water quality in the site . R] educed dispersion . . . in this cove would allow . . . phosphorous to build up. (0.156) Overland effluent flow to Gator Cove would increase concentrations of phosphorus there, with a consequent increase in the growth of aquatic plants, and the likely degradation of waters in the Cove, unless rapid and regular exchange of lake and cove waters dispersed the phosphorous widely, promptly upon its introduction Except for testimony that wind-driven waves sometimes stir up phosphorous laden sediments on the bottom, the record is silent on the movement of waters within and between Lake Santa Fe and Gator Cove. The record supports no inference that phosporous reaching Gator Cove would be dispersed without causing eutrophic conditions significantly degrading the water in the Cove. Neither does the record support the inference, however, that effluent moving underground into the lakes would enter Gator Cove. On this point, Dr. Bottcher testified: [T]he further away from the lake that you recharge water the further out under a lake that the water will be recharging into the lake; gives it a longer flow . . . it's going to migrate and come up somewhat out into the lake. (0.281-2) Phosphorous in the quantities the treatment plant would produce, if introduced "somewhat out into the lake" would probably not degrade water quality significantly, notwithstanding testimony to the contrary. (0.349, 354). Sands and Clays DER gave notice of its intent to deny SFP's original application because SFP proposed to place the pond bottoms approximately two and a half feet above an observed groundwater table. Placement in such proximity to groundwater raised questions about the capacity of the ground to accept the effluent. In its revised application, SFP proposes to place sand on the existing grade and construct percolation ponds on top of the sand. By elevating the pond bottoms, SFP would increase the distance between the observed groundwater table and pond bottoms to 5.2 feet. (S.256, 257). This perched water table, which is seasonal, is attributable to clayey sand or sandy clay underlying the site proposed for the percolation ponds. Between January 9, 1985, and January 17, 1985, "following a fairly dry antecedent period," (S.229) Douglas F. Smith, the professional consulting engineer SFP retained to prepare the engineering report submitted in support of SFP's permit applications, conducted six soil borings in the vicinity of the site proposed for the plant. One of the borings (TB 5) is in or on the edge of a proposed percolation pond and another (TB 4) is slightly to the north of the proposed pond site. Three (TB 1, 2 and 3) are east of the proposed pond site at distances ranging up to no more than 250 feet. The sixth is west of the proposed site in a natural depression. Mr. Smith conducted a seventh test boring under wetter conditions more than a year later a few feet north of TB 4. Finally, on September 5, 1986, during the interim between hearing days, Mr. Smith used a Shelby tube to obtain a soil sample four to six feet below grade midway between TB 4 and TB 5. 1/ The sites at which samples were taken are at ground elevations ranging from 173 to 178 feet above sea level. From the original borings and by resort to reference works, Mr. Smith reached certain general conclusions: The top four feet or so at the proposed pond site consists of silty sand, 17 percent silt and 83 percent quartz sand. This topsoil lies above a two-foot layer of clayey sand, 20 percent clay, 6 percent silt and 74 percent sand. Below the clayey sand lies a layer some eight feet thick of dense, silty sand, 23 percent silt, 7 percent clay and 70 percent sand, atop a one and one-half foot layer of clayey sand, separating loose, quartz sands going down 40 feet beneath the surface from what is above. These formations "are very heterogeneous, in the sense of the position and occurrence of the clay layers or the sandy layers . . .," (0.230) and all occur within the surficial aquifer. "There are layers of clay within it, and so perched water tables are rather common." (0.225). In March of 1986, the regional water table was some 17 feet down. SFP Exhibit 1B. Below the surficial aquifer lie the Hawthorne formation and, at a depth of 110 feet, the limestone of the Floridan aquifer. The soils above the Hawthorne formation are not consolidated. (S.254, 255). Conductivity Measurements The applicant offered no test results indicating the composition or conductivity of soils lying between the easternmost test boring and Gator Cove, some 1,200 feet distant. No tests were done to determine the conductivity of the deeper layer of clayey sand beneath the site proposed for the ponds. Tests of a sample of the topsoil in TB 7 indicated horizontal permeability of 38.7 feet per day and vertical permeability of six feet per day. On the basis of an earlier test of topsoil in TB 3, "hydraulic conductivity of the surface soils was measured to be 8.2 feet per day. . . ." SFP's Exhibit No. 1B. From this measurement, vertical hydraulic conductivity was conservatively estimated at .82 feet (9.84 inches) per day. Id. The design application rate, 2.41 inches per day, is approximately 25 percent of 9.84 inches per day. Id. The initial test done on a sample of the clayey sand, which lay beneath the topsoil at depths of 3.5 to 5.5 feet, indicated a permeability of 0.0001 feet per day. Thereafter, Mr. Smith did other testing and "made some general assumptions" (S. 235) and concluded that "an area-wide permeability of this clayey sand would be more on the order of 0.0144 feet per day." (S. 234). Still later a test of the sample taken during the hearing recess indicated hydraulic conductivity of 0.11 feet per day. SFP's Exhibit No. 10. The more than thousandfold increase in measured conductivity between the first laboratory analysis and the second is attributable in some degree to the different proportions of fines found in the two samples. The soil conductivity test results depend not only on the composition of the sample, but also on how wet the sample was before testing began. Vertical Conductivity Inferred On March 6, 1986, ground water was observed on the site about two and a half feet below the surface. SFP's expert, Mr. Smith, concluded that it was "essentially a 1.5 foot water table, perched water table over the clay." (0.422). There was, however, groundwater below, as well as above, the clay. On March 12, 1986, the water table at this point had fallen six inches. In the preceding month rainfall of 5.9 inches had been measured in the vicinity, after 5.1 inches had been measured in January of 1986, but in November and December of 1985 "there was a total of 0.6 inches of rainfall." (0.421). Later in the year, notwithstanding typically wet summer weather, no water table was measured at this point. From this Mr. Smith concluded that, once the clayey sand layer is wetted to the point of saturation, conductivity increases dramatically. If that were the case, a more or less steady stream of effluent could serve to keep the clayey sand wetted and percolation at design rates should not be a problem. But Dr. Bottcher, the hydrologist and soil physicist called as a witness for the Association, testified that the six- inch drop over six days could be attributed, in large part, to evapotranspiration. He rejected the hypothesis that the clayey sand's conductivity increased dramatically with saturation, since "the actual water table was observed . about three weeks after the very heavy rainfall had stopped" (0.290) and had probably been present for at least a month; and because the soil survey for Alachua County reports that perched water tables ordinarily persist for two months (0.227) in this type of soil. Certain soils' hydraulic conductivity does diminish with dessication, but such soils usually regain their accustomed conductivity within hours of rewetting. Dr. Bottcher rejected as unrealistically optimistic the assumption SFP's expert made about the conductivity of the clayey sand on grounds that "the conductivity that . . . [SFP] used, if you went out there you couldn't perch a water table for a month." (0.277). In these respects, Dr. Bottcher's testimony at hearing has been credited. In the opinion of the geologist who testified on behalf of the Association, Dr. Randazzo, a minimum of seven or eight additional augur borings in "definitive patterns to the northeast and to the northwest" (0.240) to depths of 15 to 20 feet, with measurements within each augur boring every two feet, are necessary to determine "how permeable the soils are and how fast the waters would move through them." (0.240). This testimony and the testimony of the soil physicist and others to the same general effect have been credited, and Mr. Smith's testimony that no further testing is indicated has been rejected. Wet Ground In the expert opinion of a geologist who testified at hearing, "it is reasonable to assume that saturation conditions of the surficial aquifer in this area can be achieved," (0.238) even without adding effluent from a wastewater treatment plant. The evidence that soils in the vicinity of the site have a limited capacity to percolate .water came not only from engineers and scientists. Charles S. Humphries, the owner of the property 150 feet from the proposed percolation site, "put a fence post line . . . every ten feet, and every ten feet [he] hit clay." (0.372). Three quarters of an inch of rain results in waters standing overnight in neighboring pastures. In parts of the same pastures, rain from a front moving through "will stay for a week or so." (0.373). It is apparent that the area cannot percolate all the rainfall it receives. This is the explanation for the gully leading down toward Gator Cove. Six-feet deep (0.377), "the gully is a result of natural surface runoff." (0.263).
Findings Of Fact The parties stipulated, and it is so found, that Petitioner, DER, has jurisdiction over both the issues and the Respondents Dey and KWC. KWC owns and operates a water system which supplies water to both residential and commercial customers in the City of Keystone Heights, Florida. Virginia Key is the President of KWC, a member of the Board of Directors of the corporation, and one of the five stockholders. The other stockholders are her sisters. The five sisters are the daughters of the late G. E Wiggins, and inherited the company from him at his death in 1969. Mr. Wiggins developed the water company in the 1920's and operated it until his death. KWC came under the jurisdiction of the Florida Public Service Commission (PSC) just prior to Mr. Wiggins' death. At that time, pursuant to a PSC requirement, it was assessed and valued at a sum in excess of $250,000.00 by a consultant firm hired for the purpose. As of late November, 1984, KWC served approximately 752 residential customers which, when multiplied by an average 2.5 persons per family factor, results in a total of approximately 1,880 residential inhabitants served by the water system. In addition, the system serves 105 commercial customers. It is impossible to estimate with any reasonable degree of accuracy the number of individuals involved in the commercial service. The system consists of three wells drilled in 1940, 1946, and 1960 to a depth of 350, 450, and 492 feet respectively. Total yield from the three wells is normally 1,350 gallons per minute. The wells are generally well protected against surface water infusion, are normally not subject to inundation, and have had no salt water infiltration problems in the past. At the present time, well number 2, drilled in 1946, with a 350 gpm yield is out of service. The water, when pumped from the ground, is stored in two tanks-one with a 60,000 gallon capacity and the other with a capacity of 800 gallons. Both tanks are steel. Chlorine is added to the water in each storage situation by a hyper-chlori- nation system before the water is sent to the storage tank. The distribution system is made up of 6" and 2" diameter pipe. In March, 1984, two different inspections of the water system, done by, in one case, an environmental specialist and in the other, an Engineer I with DER, revealed several deficiencies in the maintenance and operation of the system all of which constitute violations of DER rules. Specifically, these include (1) failure to provide an auxiliary power source in the event the main pumping capability of the system is lost, (Rule 17-22.106 (3)(a); (2) failure to utilize for the system an operator certi- fied by the state with a Class C license, (Rule 17-22.107(3)(b); (3) failure to maintain a free chlorine residual in the water of at least 0.2 ppm in the system, (Rule 17-22.106(3)(c); (4) failure to maintain a minimum pressure of 20 ppi in the distribution system, (Rule 17-22.106(3)(f); (5) failure to have a gas chlorination facility, (Rule 17-22.106(3)(d); and (6) failure to obtain proper permits to expand the distribution system, (Rule 17-22.108 (1)(b) Rule 17-22, F.A.C., sets up requirements for safe drinking water and was designed to establish guidelines and standards for facilities and water and to bring water into compliance with the Federal Act. Twenty ppi of pressure in the system was adopted as a standard minimum for residual pressure to protect against outside contaminants getting into the water system. Such contaminants could come from ground water, leaks, and water in storage tanks attached to the system such as toilet tanks, being aspirated into the system. Also a certain amount of pressure is required to operate appliances. Normally minimum pressure is found in areas at the edge of the system and in those areas where inadequate chlorination is located. They interact and both pressure and chlorinization are required. Chlorine can be injected into the system generally in two ways: the first is through gas chlori- nation and the second, through hyper-chlorinization as is used in the instant system. The effectiveness of hyper-chlorinization is limited, however, by the size of the system. Basically, hyper- chlorinization is effective when the demand in the system for pressure is no more than 10 ppi. Above this, gas chlorinization is necessary. As late as January 4, 1985, Mr. Dykes went to Keystone Heights to test the system. His tests showed that 11.9 ppi is the average daily flow per 24 hours for the last 12 months. Since this figure is above 10 ppi, in his opinion, a gas chlorinization system would be needed. Chlorine is used to purify water because it has been shown, through long use, to prevent disease. The requirement for a residual chlorine level in water, therefore, is consistent with that concept to insure chlorine is always in the water in sufficient quantity to prevent disease. Respondent's plant has less than the 0.2 residual that is required under the rule. This insufficiency is caused by the inadequate chlorinization system which has insufficient capacity to provide the appropriate amount of chlorine. At the current level, it is providing only approximately 60 percent of the needed chlorine. To correct this deficiency Mr. Dykes recommends installation of a gas chlorinization system. In addition, the pneumatic tank storing the water from the number 3 well does not give sufficient detention time to allow for appropriate reaction of the chlorine contained in the water before the water is released into the distribution system. Another factor relating to the lack of adequate pressure in the system is the fact that, in Mr. Dykes' opinion, too much of the system is made up of 2" diameter water line. A line of this small diameter prevents the maintenance of adequate pressure especially in light of the fact that there are numerous old lines in the system some with corrosion and scale in them which tends to reduce pressure. This latter factor would be prevalent even in the 6" lines. The current plant manager, Mr. Cross, who has been with Respondent for approximately 4 years is, with the exception of one part time employee, the only operations individual associated with the plant. As such, he repairs the meters and the lines, checks the pumps, the chlorinator, and checks and refills the chlorine reservoir on a seven day a week basis. Be learned the operation of the plant from his precedessor, Mr. Johnson, an unlicensed operator who was with the company for 10 years. Mr. Cross has a "D" license which he secured last year after being notified by DER that a license was required. It was necessary for him to get the "D" license before getting the required "C" license. At the present time, he is enrolled to take courses leading toward the "C" license. At the present time, however, he is not, nor is anyone else associated with KWC, holding a license as required. The rule regarding auxiliary power provides that all community systems serving 350 or more persons shall have standby pumping capability or auxiliary power to allow operation of the water treatment unit and pumping capability of approximately one-half the maximum daily system demand. Respondent has admitted that the system is not equipped with an auxiliary power source and it has already been established that more than 350 persons are served by the system. Respondent also admits that subsequent to November 9, 1977, it constructed main water lines for the system which required the obtaining of a permit from either the Petitioner or the county health unit. Respondent admits that it did not obtain or possess a permit to do the additional construction referenced above from either DER or the Clay County Health Department prior to the construction of the water lines referenced. The inspections referenced above, which identified the problems discussed herein, were accomplished by employees of Petitioner, DER, at a stipulated cost of $898.10. Respondent contends, and there is no evidence to the contrary, that there have been no complaints of contaminated water and that the monthly water samples which Mr. Cross forwards to the Clay County Health Department have been satisfactory. Mr. Cross also indicates that a September, 1983 DER analysis of water samples taken from the system was satisfactory. However, bacteriological analysis reports on water collected from Respondent's system on July 11 and 27, 1983, reflect unsatisfactory levels of either coliform or non-coliform bacteria in the water requiring resubmission of test samples. Respondent also contends that no one has ever gotten sick or died from the water furnished by the system and there is, in fact, no evidence to show this is not true. Even though so far as is known, no one has ever been made sick from the water in the system, in Mr. Dykes' opinion, the risk is there. As a result of the defects identified in this system, insufficient chlorine is going into the system to meet reasonable health standards. Though this does not mean that the water is now bad, it does mean that at any time, given a leak or the infusion of some contaminant, the water could become bad quickly, and the standard established by rule is preventive, designed to insure that even in the case of contamination, the water will remain safe and potable. Respondent does not deny that it is and has been in violation of the rules as set out by the Petitioner. It claims, however, that it does not have sufficient funds available to comply with the rules as promulgated by DER. Respondent has recently filed a request for variance under Section 403.854, Florida Statutes, setting forth as the basis for its request that it does not have the present financial ability to comply with any of the suggested or recommended corrective actions to bring its operation into compliance with the rules. Mr. Protheroe, the consulting engineer who testified for Respondent has not evaluated the system personally. His familiarity with it is a result of his perusal of the records of the company and the Petitioner. Based on his limited familiarity with the system, he cannot say with any certainty if it can be brought into compliance with, for example, the 20 ppi requirement. There are too many unknowns. If, however, the central system was found to be in, reasonably good shape, in his opinion, it would take in excess of $100,000.00 to bring it within pressure standards. To do so would require replacement of the 2" lines, looping the lines, and cleaning and replacing some central system lines as well. In his opinion, it would take three months to do a complete and competent analysis of the system's repair needs. Once that was done, he feels it would take an additional three months to bring the plant into compliance with DER requirements. Other repairs, such as those to the lines outside the plant, would take longer because some are located in the downtown area and have interfaced with other utilities. This could take from three to four months if the money were available to start immediately. Here, however, it has been shown that it is not. Consequently, to do the study and then, if possible, procure the funds required, could take well in excess of six months or so. Mr. Protheroe contends, and there is little if any evidence to indicate to the contrary, that to replace the current system with a new one entirely as it is currently constituted would cost at least $250,000.00. However, in his opinion, no one would ever put in a new system similar to the one currently there. He cannot say how much it would cost to buy the system and make the necessary corrections to it to rectify the deficiencies. His familiarity with the system is not sufficiently complete to do this. He cannot say exactly how much the system is worth in its current state, but he is satisfied that it is worth more than $65,000.00. In that regard, Mrs. Dey indicated that in her opinion, the fair market value of the system is currently at $250,000.00. At the present time, there are current outstanding loans in excess of $9,000.00 at 16 percent interest. This current loan basis has been reduced from a higher figure. In 1977, the company borrowed $15,000.00 at 9 percent. In 1981, it borrowed $5,000.00 more at 18 percent. In 1982, the loans were consolidated at an increased rate of 16 percent and the officers have been advised by their current creditors that they cannot borrow any more money for the system in its current state. They would sell the system if a reasonable price could be realized. However, any inquiries on prospective purchases have been chilled by a low rate base assigned by the PSC. In that regard, the City of Keystone Heights offered to purchase the system for $59,000.00. This offer was declined as being unreasonable. Nonetheless, in light of the low rate base assigned by the PSC in its order issued on December 21, 1981 of slightly over $53,000.00 the offer by the city of $59,000.00 is not completely out of line. A certified public accountant, in KWC's December 31, 1983 financial report assigned a valuation of approximately $62,000.00, again a figure only slightly higher than that offered by the city, but substantially less than the $175,000.00 price asked of the city by Respondent Dey and her sisters. Mrs. Dey indicated that to the best of her knowledge the PSC denied rate increases for the purposes of improvements. In the presentation before the commission, respondents relied exclusively on the services of their attorney and accountant. Evidence from Mr. Lowe, of the PSC, however, indicates that KWC has never requested a rate increase to finance any of the improvements called for here. In the PSC order referred to above, Respondent was awarded a 12.25 percent rate of return on its rate base. This figure was an amalgam of a more than 13 percent rate on equity and a lesser figure for cost of doing business, including debt. At the time of that hearing, however, the debt cost was based on a 9 percent interest figure. The 16 percent interest figure came afterwards and no hearing has been requested based on the higher interest rate and it is so found.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is, therefore: RECOMMENDED that Respondents Virginia W. Day and the Keystone Water Company be ordered to comply with the Orders for Corrective Action previously filed herein to bring the water system in question in compliance with the Florida Safe Water Drinking Act without delay or suffer the penalties for non- compliance called for by statute and, in addition, pay costs of investigation in the amount of $898.16. RECOMMENDED in Tallahassee, Florida this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1987. COPIES FURNISHED: Debra A. Swim, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John E Norris, Esquire 10 North Columbia Street Lake City, Florida 32055 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2). After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor). The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor). The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront). Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor). In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick). There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil. The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3). Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling) The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront) The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor). There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6). The parties stipulated prior to the hearing to the following: The project complies with local zoning laws; and The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses. DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301. SHARYN SMITH Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 George G. Collins, Jr., Esquire Post Office Box 3686 Vero Beach, Florida 32960 Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact In 1984, the South Florida Water Management District (SFWMD) issued surface water management permit number 48-00201-5 for a 515 acre project, Isleworth Golf and Country Club, located in southwest Orange County. The permit was issued to the developer, Isleworth Partners. Sometime after the permit was issued and the system was constructed, nitrate concentrations were detected in holding ponds BE-15 and 16. District staff speculated that the shallow ground water table was contaminated with residual nitrogen left from nutrient applications to a citrus grove previously on the site. They were concerned that the high nitrate ground water was seeping into the storm water storage ponds and would eventually be discharged into adjoining Lake Bessie, thereby affecting the water quality of the lake. Lake Bessie, along with other lakes in the region, was also experiencing rising levels. On March 24, 1988, Isleworth Partners submitted to the SFWMD its application number 03248-G, to modify the existing surface water management permit, to help prevent the water quality problems from occurring in Lake Bessie, as described above, and to ameliorate and mitigate against increased lake levels in Lake Bessie. It was not intended to provide flood protection for Lake Bessie. The solution proposed in the modification request, as well as in water use permit applications processed at the same time, was to retain substantially more water in storage ponds BE-15 and 16, and to recycle some of the water from those ponds for use in irrigating the golf course. There were no objections to the water use modifications which were processed with the surface water management permit modification, and the water use modifications were approved by the SFWMD governing board in June 1988. As they affect ponds BE-15 and 16, the water use modifications include pumping the ponds down to a new control level of 97 feet NGVD and using that water to irrigate the golf course. This process has already been implemented with beneficial results: the nitrate concentrations in the ponds have been reduced. The surface water management modification which is the subject of the application at issue is to raise the weir structure from 101.6 to 103 feet NGVD in pond BE-15 to provide complete retention of a 10 year/24 hour storm event without discharge to Lake Bessie from the pond. The under drain system at Pond BE-15 will also be plugged to prevent the existing permitted bleed down of the pond waters into Lake Bessie. This structural modification involves simple construction work and can be completed in one or two days. Ponds BE-15 and 16 are currently connected by an equalizer pipe, and will remain so. Under the modifications the ponds will be maintained (control elevation) at 97 feet NGVD through the use of existing permitted pumps. The maximum elevation of the ponds will be raised from 101.6 feet to 103 feet NGVD by the alteration of the weir. This means the waters in the ponds would have to top 103 feet to overflow and discharge, by way of an existing pipe, to the swales along Lake Bessie and thence into the lake. A 10 year/24 hour storm event is the amount of rainfall that will statistically occur in a 24-hour period once every ten years, or ten times in a 100-year period. The amount of rainfall in a 10 year/24 hour storm event is roughly seven and a half inches. The modification proposed by Isleworth Partners is intended to retain the runoff from that storm. Currently, under the system as permitted, only the first inch of runoff must be retained. This is about 2.4 inches of rainfall or approximately a 3-year/1-hour storm event. Substantially more water will be retained in Ponds BE-15 and 16 under the proposed modification. The staff of SFWMD recommended that the application be granted, with twelve standard limiting conditions and eight special conditions, including the following: * * * The permittee shall be responsible for the correction of any water quality problems that result from the construction or operation of the surface water management system. The district reserves the right to require that water quality treatment methods be incorporated into the drainage system if such measures are shown to be necessary. * * * (Isleworth Exhibit #3, p. 6) John Robertson, Donald Greer and Robert Londeree reside on Lake Bessie. John Robertson and Donald Greer are members and officers of a nonprofit corporation, the Petitioner in this case, Friends of the Lakes, Inc. These residents are concerned that the level of Lake Bessie has risen in the last few years and that it is becoming polluted. Long standing docks which had been primarily dry are now frequently under water. The residents have observed milky or greenish yellow water discharging from pipes from the Isleworth development. These residents, who are not parties to the proceeding, concede that, if the modification works as intended, the system will be improved and the impact to Lake Bessie Will be lessened. Petitioner, Friends of the Lakes, Inc., questions the reliability of the pumping system to maintain the 97.0 foot control elevation. If the ponds are maintained at a control level of 97.0 feet, the 10 year/24 hour storm water will be retained. If, however, through a series of smaller events, the level is higher than 97.0 feet, less capacity will exist, and the water will discharge sooner to Lake Bessie. The current permitted pump operates at 375 gallons a minute. Depending on whether the pump is operated continuously or part-time, it would take from four to twenty days to pump down the pond from a maximum 103 feet to the 97 foot level. The District found the pumping system to be acceptable at Isleworth because the development has a full-time maintenance staff of 35 people, of whom three work on the pumping system. A maintenance supervisor checks the pumps daily, and the developer has an agreement with a pump company to replace the pump, if needed, within four to six hours. The system is considered reliable and the increased pond holding capacity will insure that more water will be retained than under the existing permitted system. Stephen Miller is the professional engineer whose firm prepared the application for modification and the original application for the surface water management permit. He is aware of some changes in the project as constructed which differ from his design for the original system. These changes relate specifically to grading on the golf course and not, as suggested by Petitioner, to the operation of ponds BE-15 and 16. Stephen Miller believes that the modifications will do exactly what they are proposed to do. The application for the modifications took into account the existing conditions which differ from the permitted construction plans. Ronald R. Potts testified for Petitioner as an expert in geology and surface and ground water hydrology. He agrees that the application for modification meets all requirements of the SFWMD with the exception of a single standard condition: * * * 3. The permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition, the permittee shall obtain all necessary federal, state, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit (Isleworth Exhibit #3, P. 6.) The district staff report recommending approval for the modification request was sent to Orange County for its review and comment. Orange County made no objections. Within Orange County it is the engineering department which is responsible for the implementation and interpretation of the Orange County subdivision regulations as they apply to storm water management. The SFWMD does not attempt to enforce other agencies' requirements. The Orange County Engineer, George Cole, determined that neither section 10.1.2 nor section 10.4.4(D) of the Orange County Subdivision Regulations were applicable to the modification proposed by Isleworth. Section 10.1.2 requires that recharge to the Floridan Aquifer, where soils are compatible, shall be accomplished by providing for retention of the total run off generated by a 25 year frequency, 24 hour duration storm event from the developed site. Section 10.4.4(D) of the Orange County Subdivision Regulations requires that a pond design detain a 100 year storm event when discharge into a lake without a positive outfall is proposed. When the County first approved Isleworth's Planned Development, it set a specific requirement that the storm water management system retain the first inch of runoff and detain the difference between pre-development and post- development discharge for a 25 year/24 hour storm. "Retention" of storm water means that the water must be held on site and disposed of by some means other than discharge. "Detention" requires only that water be held back for a period of time before discharge. The Isleworth property is not located in a prime recharge area, as under its soils is a highly impermeable lens, commonly called "hardpan." Lake Bessie has a positive outfall, a pipe connecting Lake Bessie with nearby Lake Down. Although the pipe was plugged with debris for a period of years, it has been cleaned out and the potential exists for outfall from Lake Bessie in flood conditions. The County's 100 year/24 hour detention requirement would still allow the ponds to discharge more water to Lake Bessie than the proposed 10 year/24 hour retention design, and is, therefore, less restrictive. Lake Bessie presently is one of Florida's most pristine lakes with crystal clear water that is ideal for recreational purposes. The natural dynamic state of lakes is that over a period of time they evolve from oligotrophic, with clear water and a balanced system; to mesotrophic, with less water clarity, more nutrients, increased algae and less desirability for human use; to a eutrophic state, with even less clarity, choking vegetation, less fish and less pleasing appearance and utility. This occurs in a natural state as lakes fill in with decaying matter from the shore. Petitioner claims that discharge from Isleworth will hasten the death of the lake. Phillip Sacco testified for the Petitioner as an expert biologist and limnologist (one who studies fresh bodies of water). He performed a modeling analysis to determine the amount of phosphorus being discharged into Lake Bessie and he opined that the Isleworth development will cause Lake Bessie to change to a eutrophic state. A significant component of his analysis was his assumption that 920 acre-feet of water would be discharged into Lake Bessie as a result of the modification. (transcript pp. 557-558). The 920 acre feet is actually the total amount of water which enters Lake Bessie from the entire Lake Bessie basin, not just from the Isleworth property, and includes both surface water (2%) and ground water (98%). The analysis is discredited by the false assumption. Mr. Sacco also theorized that the interaction of nitrogen and phosphorus precipitated by the change in land use occasioned by the Isleworth development would produce deleterious effects on Lake Bessie's water quality: "Nitrogen is the dynamite; phosphorus is the fuse and the land use change of Isleworth is the match." The permit modification application at issue does not relate to a land use change. The change from orange groves to residential development occurred years ago and has already been permitted. In fact, the land change providing the ignition in Mr. Sacco's vivid metaphor is just as likely in the even earlier cultivation of the groves and use of nutrients in their production. The single result of the modification at issue will be less water being discharged into Lake Bessie than is currently permitted from the system, thus conserving the water quality present in the lake. The residents who testified are not parties to this proceeding. Although two of them established they are members and officers of Friends of the Lake, Inc., no evidence was produced regarding the corporation, its legal existence or purpose.
Recommendation Based on the above it is hereby RECOMMENDED: that a final order be issued granting the application for permit modification, and denying Isleworth Partners' request for costs and attorney's fees. DONE AND ENTERED this 17th of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1989. APPENDIX Case NO. 88-3056 The following constitute specific rulings on the findings of fact proposed by the parties: PETITIONER'S PROPOSED FINDINGS: 1-2. Adopted in part in paragraph 9. However, testimony on the dying trees was excluded as beyond the witnesses' expertise. 3-4. Adopted in part in paragraph 2, otherwise rejected as not based on competent evidenc. Adopted in paragraph 3. Adopted in part in paragraph 10, otherwise rejected as unsupported by the evidence. The pumps already exist and are permitted. Rejected as irrelevant Rejected as unnecessary Rejected as inconsistent with the evidence. Adopted in paragraph 12. Rejeceted as unsubstantiated by competent evidence; the proposed fact is also too vague and ambiguous to properly address. Rejected as unsupported by competent evidence. Rejected as irrelevant, unnecessary, or unsupported by competent evidence. 14-15. Rejected as unsupported by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence and irrelevant. Adopted in part in paragraph 16; the contribution by the development is rejected as unsupported by competent evidence. Rejected as unsupported by competent evidence. Addressed in paragraph 16. Rejected as contrary to the evidence. Rejected as irrelevant. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. 25-31. Rejected as irrelevant and unnecessary. Rejected as testimony summarized rather than findings of fact. Rejected as unecessary. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS: ISLEWORTH PARTNERS Adopted in paragraph 1, except the finding regarding the existing system meeting district requirements is rejected as irrelevant. Adopted in substance in paragraphs 2 and 3. 3-4. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraph 7. Rejected as cumulative and unnecessary. Adopted in part in paragraph 9, otherwise rejected as unnecessary. Adopted in substance in paragraph 11. Rejected as unnecessary. Adopted in paragraph 12. Adopted in paragraph 13. Included in conclusion of law #6. Adopted in paragraph 13. 14-19. Adopted in substance in paragraphs 14 and 15. Rejected as unnecessary. Adopted in paragraph 16. 22-25. Adopted in part in paragraph 16, otherwise rejected as unnecessary. Adopted in part in paragraph 4, otherwise rejected as unnecessary. Rejected as unnecessary. 28-31. Adopted in part in paragraph 9, otherwise rejected as unnecessary. 32. Adopted in paragraph 18 and in conclusion of law #2. SOUTH FLORIDA WATER MANAGEMENT DISTRICT 1-2. Adopted in paragraph 3 and 4. Adopted in paragraph 5. Adopted in paragraph 7. 5-6. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 13. 9-10. Adopted in paragraph 14. Adopted in paragraph 16, otherwise rejected as cumulative or unnecessary. Adopted in part in paragraph 14. COPIES FURNISHED: J. Alan Cox, Esquire Bogin, Munns & Munns 105 West 5th Avenue Tallahassee, FL 32303 Chris H. Bentley, Esquire W. Douglas Beason, Esquire Rose, Sundstrom & Bentley 2548 Blairstone Pines Drive Tallahassee, FL 32301 William Doster, Esquire Lowndes, Drosdick, Doster, et al., PA P.0. Box 2809 Orlando, FL 32802 James K. Sturgis, Esquire South Florida Water Management District P. O. Box 24680 West Palm Beach, FL 33416-4680
Findings Of Fact Respondent owns and operates a waste water treatment facility at Polynesian Village Mobile Home Park, owns the land at this village, leases these lots to mobile home owners, and provides them with waste water treatment. He was last issued an operating permit on January 18, 1983, by Petitioner. Respondent posted an Operational Bond (Exhibit 2) in the amount of $7,500 with Northwestern National Insurance Company as surety to faithfully operate the treatment facility and comply with all Rules and Regulations of the Petitioner. Englewood Water District, petitioner, was established by special act of the Florida Legislature in Chapter 59-931, Florida Statutes, and is given authority in Section 4 thereof to regulate use of sewers, fix rates, enjoin or otherwise prevent violations of the act or any regulation adopted by Petitioner pursuant to the act, and to promulgate regulations to carry out the provisions of the act. Pursuant to this authority, Petitioner promulgated Waste Water Treatment Facilities Design, Construction and Operation Regulations dated June 19, 1980, and revised April 28, 1983. During an inspection of Respondent's waste water treatment facility on October 17, 1983, leaching was observed at both the north and south drain fields with effluent from the system rising to the surface. Samples of this effluent when tested showed a fecal coliform count of 2800/100 ml. The basic level of disinfectant shall result in not more than 200 fecal coliform values per 100 ml of effluent sample (Rule 17-6.060(1)(b)3a, F.A.C.). Following this test, Notice of Violation (Exhibit 4) was served on Respondent. No action was taken by Respondent to correct this condition and on January 6, 1984, a Citation (Exhibit 5) was issued to Respondent scheduling a hearing for January 26, 1984. Following the issuance of that Citation frequent inspections of the facility were conducted by employees of Respondent to ascertain if steps were being taken by Respondent to correct the deficiencies. Additionally, inspections were made by inspectors from Sarasota County Pollution Control. Inspections were conducted January 9, 16, 17, 18, 20, 23, and 31; February 1, 8, 13, 14, 16, 21, 24, 25, 26, 27, 28, and 29; and March 2, 5, 8, and 9, 1984. These inspections revealed what appears to be a "blow-out" in the south drain field where effluent bubbles to the surface and flows onto the adjacent streets and propert (Exhibits 9 and 11). Effluent tested from this source had fecal coliform counts as high as 9440/100 ml. During one of these inspections effluent from the treatment plant was being discharged directly onto the road to a drainage ditch adjacent to the plant (Exhibit 8). The coliform count of a sample taken from this ditch was 13500/100 ml. Respondent was issued a second Citation on March 2, 1984, and this hearing was held on the violations alleged in that Citation, to wit: creating a public nuisance and leaching from drain field. Respondent contends that he is dealing with the Sarasota County Engineer to correct the problems and, after failing in his attempt to get the county to provide drainage from his property, he is now in the process of installing drain pipes. Respondent contends that the natural drainage of surface waters from his land to adjacent land was stopped by development on the adjacent land and the heavy rains this winter has saturated his land and inhibited percolation in the drain fields. Accordingly, the effluent from his plant could not be absorbed by the drain field. Respondent also contends that the drain field worked fine for several years before the drainage problem arose and believes it will again work well when the drainage situation is corrected.
Findings Of Fact J. Armand Martin is the owner of a lot located in Pasco County, Florida, which includes an island surrounded by a body of water known as Sleepy Lagoon and a 15-foot strip of land on the mainland. This case arose out of Martin's efforts to develop this lot and construct a personal residence on the island. Residential dwellings surround the lagoon and Martin's island. In order to build a residence on the island, Martin had to install a septic tank. To install a septic tank Martin had to apply for a permit to install an individual sewage disposal system. It was Martin's original intent to locate the sewage treatment facility on the mainland and pipe the sewage over the bridge he planned to build to access his island. Martin made application for the required septic tank permit to the Pasco County Health Department. The inspector from the Pasco County Health Department was taken aback by the situation she encountered when she did the preliminary inspection and called in her supervisor, Donald Van Kampers, for assistance. Van Kampers eventually inspected the island and suggested that Martin put his individual sewage disposal system on the island itself, pointing out that because the island was so low the installation would probably have to include a sand filter system and possibly a chlorinating system. Van Kampers also advised Martin that he would have to seek a variance from the Staff Director of the Health Program Office pursuant to Rule 10D-6.21, Florida Administrative Code, because the island was so narrow that the system would be within 50 feet of the lagoon's waters contrary to Rule 10D-6.24(4), Florida Administrative Code. Martin received assistance from Van Kampers on his application for the variance. This application called for the filing of a site plan drawn to scale. In addition to being surrounded by Sleepy Lagoon, Martin's island circumscribes a small body of water variously referred to as a pond, lagoon and even "wetlands." Martin transmitted to Van Kampers a surveyor's drawing of his island which did not show the island's own small body of water. In an effort to assist Martin, Van Kampers filled in the proposed location of Martin's house and the individual sewage disposal system (septic tank with sand filter) on this surveyor's drawing, attached it to Martin's request for a variance and forwarded it to the Staff Director for the Health Program Office together with a recommendation of approval by the Pasco County Health Unit. This drawing did not show the body of water on the island. The Staff Director forwarded the application to the Review Committee which he appoints to review applications for variances. There is no evidence that Martin saw this drawing prior to the Review Committee's approval of the variance which, with the affirmative recommendation of the Pasco County Health Unit, was summarily granted. Subsequently, several of the residents surrounding Sleepy Lagoon and Martin's island became concerned about the potential problems which Martin's individual sewage disposal system would have on their lagoon, its environment and its ecology. Their complaints eventually came to the attention of the Staff Director of the Health Program Office, who in turn forwarded the matter to John Heber, the Department's representative to the Review Committee, for investigation. Heber conducted a personal inspection of Martin's island and compared it with the drawing filed by Van Kampers in Martin's behalf. Heber found that according to the drawing the individual sewage disposal system would be located in the middle of the water on Martin's island. Having made this discovery, Heber initiated actions which resulted in the Issuance of an Administrative Complaint to have the variance issued Martin rescinded. The Administrative Complaint alleged that Martin had "misrepresented" facts on his application for the variance by not showing the water on his island. Martin made a timely request for a formal hearing on the allegations. Martin did not fill out the drawing which accompanied his application. It was filled out by Van Kampers, who did not draw in the island's water and put the individual sewage disposal system in the middle of where the water is currently located. Van Kampers and his supervisor, both of whom visited the island, did not consider the water on the island subject to the rules which call for the reporting of lakes, streams or canals. See Rule 10D-6.23(2)(a), Florida Administrative Code. In regard to their classifications of surface waters, they are the officials charged under the regulatory scheme with determining when applicants must seek a variance. Applicants must seek a variance when, like Martin, their septic tanks are too close to certain surface waters. See Rule 10D-6.24(4), Florida Administrative Code. Clearly, they determine when a permit will be issued, when an applicant is required to seek a variance, and what waters must be reported on the scale drawing. In the instant case they classified Sleepy Lagoon as protected waters requiring Martin to seek a variance and the water on the is land as unprotected waters not requiring their inclusion on the drawing, because they determined the water was not a lake, stream or canal. The facts show that this water is not a lake, stream or canal. Under the Department's policy a sewage system can only be constructed as drawn and presented in the application for a variance. If the system in question were constructed, it would require the filling of the area where the water is located. The drawing accurately reflects the post-construction situation with the water not shown.
Recommendation The foregoing Findings of Fact and Conclusions of Law show J. Armand Martin did not misrepresent his application; therefore, the facts of the allegation are not proven, and the variance should not be revoked. DONE and ORDERED this 3rd day of April, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1981. COPIES FURNISHED: Barbara Dell McPherson, Esquire Department of HRS 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 Mr. J. Armand Martin 4 Sunset Boulevard Bailey's Bluff Tarpon Springs, Florida 33589
