The Issue The issues in this case are whether International Paper Company (IP) is entitled to National Pollutant Discharge Elimination System (NPDES) Permit No. FL0002526 issued by Department of Environmental Protection (Department) and whether the Department should approve Consent Order No. 08-0358, for the operation of IP’s paper mill in Cantonment, Escambia County, Florida.
Findings Of Fact The Department is the state agency authorized under Chapter 403, Florida Statutes (2008), to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. Perdido Bay is approximately 28 square miles in area. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. At the north end of Perdido Bay is a large tract of land owned by IP, known as the Rainwater Tract. The northern part of the tract is primarily fresh water wetlands. The southern part is a tidally-affected marsh. The natural features and hydrology of the fresh water wetlands have been substantially altered by agriculture, silviculture, clearing, ditching, and draining. Tee Lake and Wicker Lake are small lakes (approximately 50 acres in total surface area) within the tidal marsh of the Rainwater Tract. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to the lakes from Perdido Bay. Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. In 1989, the Department and Champion signed a Consent Order to address water quality violations in Elevenmile Creek. Pursuant to the Consent Order, Champion commissioned a comprehensive study of the Perdido Bay system that was undertaken by a team of scientists led by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies (“the Livingston studies"). Champion was granted variances from the water quality standards in Elevenmile Creek for iron, specific conductance, zinc, biological integrity, un-ionized ammonia, and dissolved oxygen (DO). In 2001, IP and Champion merged and Champion’s industrial wastewater permit and related authorizations were transferred to IP. In 2002, IP submitted a permit application to upgrade its wastewater treatment plant (WWTP) and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to the Rainwater Tract, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a reduction of biological oxygen demand (BOD) and TSS. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP, along with other process wastewater and become part of the effluent conveyed through the pipeline to the wetland tract. The effluent limits required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based, limiting the amount of pollutants that may be discharged for each ton of product that is produced. The proposed permit also imposes water quality-based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. The Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. A wetland pilot project was constructed in 1990 at the Cantonment mill into which effluent from the mill has been discharged. The flora and fauna of the pilot wetland project have been monitored to evaluate how they are affected by IP’s effluent. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silvicultural activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, it would be re-aerated and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged into the wetland would flow a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a somewhat shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter indicated that the effluent would move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be 0.6 inches. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline, berm, and control structures in the wetland tract, as originally proposed, were permitted by the Department through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. Petitioners did not challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge from Elevenmile Creek to the wetland tract. IP is given two years to complete construction activities and begin operation of the new facilities. At the end of the construction phase, least 25 percent of the effluent is to be diverted to the wetland tract. The volume of effluent diverted to the wetlands is to be increased another 25 percent every three months thereafter. Three years after issuance of the permit, 100 percent of the effluent would be discharged into the wetland tract and there would no longer be a discharge into Elevenmile Creek. The proposed Consent Order establishes interim effluent limits that would apply immediately upon the effective date of the Consent Order and continue during the two-year construction phase when the mill would continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12- month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply when 100 percent of the effluent is discharged into the wetland tract. IP is required by the Consent Order to submit quarterly reports of its progress toward compliance with the required corrective actions and deadlines. Project Changes After the issuance of the Final Order in 05-1609, IP modified its manufacturing process to eliminate the production of white paper. IP now produces brown paper for packaging material and “fluff” pulp used in such products as filters and diapers. IP’s new manufacturing processes uses substantially smaller amounts of bleach and other chemicals that must be treated and discharged. IP reduced its discharge of BOD components, salts that increase the specific conductance of the effluent, adsorbable organic halides, and ammonia. IP also reduced the odor associated with its discharge. In the findings that follow, the portion of the Rainwater Tract into which IP proposes to discharge and distribute its effluent will be referred to as the “effluent distribution system,” which is the term used by Dr. Nutter in his 2008 “White Paper” (IP Exhibit 23). The effluent distribution system includes the berms and other water control structures as well as all of the natural areas over which IP’s effluent will flow to Perdido Bay. Most of the existing ditches, sloughs, and depressions in the effluent distribution system are ephemeral, holding water only after heavy rainfall or during the wet season. Even the more frequently wetted features, other than Tee and Wicker Lakes, intermittently dry out. There is currently little connectivity among the small water bodies that would allow fish and other organisms to move across the site. Fish and other organisms within these water bodies are exposed to wide fluctuations in specific conductivity, pH, and DO. When the water bodies dry out, the minnows and other small fish die. New populations of fish enter these water bodies from Elevenmile Creek during high water conditions, or on the feet of water birds. IP's consultants conducted an extensive investigation and evaluation of animal and plant communities in the Rainwater Tract in coordination with scientists from the Department and the Florida Fish and Wildlife Conservation Commission. Among the habitats that were identified and mapped were some wet prairies, which are designated “S-2," or imperiled, in the Florida Natural Area Inventory. In these wet prairies are rare and endangered pitcher plants. IP modified the design of the proposed effluent distribution system to shorten the upper berms and remove 72.3 acres of S-2 habitat. The total area of the system was reduced from 1,484 acres to 1,381 acres. The proposed land management activities within the effluent distribution system are intended to achieve restoration of historic ecosystems, including the establishment and maintenance of tree species appropriate to the various water depths in the system, and the removal of exotic and invasive plant species. A functional assessment of the existing and projected habitats in the effluent distribution system was performed. The Department concluded that IP’s project would result in a six percent increase in overall wetland functional value within the system. That estimate accounts for the loss of some S-2 habitat, but does not include the benefits associated with IP’s conservation of S-2 habitat and other land forms outside of the effluent distribution system. IP proposes to place in protected conservation status 147 acres of wet prairie, 115 acres of seepage slope, and 72 acres of sand hill lands outside the effluent distribution system. The total area outside of the wetland distribution system that the Consent Order requires IP to perpetually protect and manage as conservation area is 1,188 acres. The Consent Order was modified to incorporate many of the wetland monitoring provisions that had previously been a part of the former experimental use of wetlands authorization. IP proposes to achieve compliance with all proposed water quality standards and permit limits by the end of the schedule established in the Consent Order, including the water quality standards for specific conductance, pH, turbidity, and DO, which IP had previously sought exceptions for pursuant to Florida Administrative Code Rule 62-660.300(1). Limitation of Factual Issues As explained in the Conclusions of Law, the doctrine of collateral estoppel bars the parties in these consolidated cases from re-litigating factual issues that were previously litigated by them in DOAH Case No. 05-1609. The Department’s Final Order of August 8, 2007, determined that IP had provided reasonable assurance that the NPDES permit, Consent Order, exception for the experimental use of wetlands, and variance were in compliance with all applicable statutes and rules, except for the following area: the evidence presented by IP was insufficient to demonstrate that IP’s wastewater effluent would not cause significant adverse impact to the biological community of the wetland tract, including Tee and Wicker Lakes. Following a number of motions and extensive argument on the subject of what factual issues raised by Petitioners are proper for litigation in this new proceeding, an Order was issued on June 2, 2009, that limited the case to two general factual issues: Whether the revised Consent Order and proposed permit are valid with respect to the effects of the proposed discharge on the wetland system, including Tee and Wicker Lakes, and with respect to any modifications to the effluent distribution and treatment functions of the wetland system following the Final Order issued in DOAH Case No. 05- 1609; and Whether the December 2007 report of the Livingston team demonstrates that the WQBELS are inadequate to prevent water quality violations in Perdido Bay. Petitioners’ Disputes Petitioners’ proposed recommended orders include arguments that are barred by collateral estoppel. For example, Jacqueline Lane restates her opinions about physical and chemical processes that would occur if IP’s effluent is discharged into the wetlands, despite the fact that some of these opinions were rejected in DOAH Case No. 05-1609. Dr. Lane believes that IP’s effluent would cause adverse impacts from high water temperatures resulting from color in IP’s effluent. There is already color in the waters of the effluent distribution system under background conditions. The increased amount of shading from the trees that IP is planting in the effluent distribution system would tend to lower water temperatures. Peak summer water temperatures would probably be lowered by the effluent. Petitioners evidence was insufficient to show that the organisms that comprise the biological community of the effluent distribution system cannot tolerate the expected range of temperatures. Dr. Lane also contends that the BOD in IP's effluent would deplete DO in the wetlands and Tee and Wicker Lakes. Her contention, however, is not based on new data about the effluent or changes in the design of the effluent distribution system. There is a natural, wide fluctuation in DO in the wetlands of the effluent distribution system because DO is affected by numerous factors, including temperature, salinity, atmospheric pressure, turbulence, and surface water aeration. There are seasonal changes in DO levels, with higher levels in colder temperatures. There is also a daily cycle of DO, with higher levels occurring during the day and lower levels at night. It is typical for DO levels in wetlands to fall below the Class III water quality standard for DO, which is five milligrams per liter (mg/l). An anaerobic zone in the water column is beneficial for wetland functions. DO levels in the water bodies of the effluent distribution system currently range from a high of 11 to 12 mg/l to a low approaching zero. The principal factor that determines DO concentrations within a wetland is sediment oxygen demand (SOD). SOD refers to the depletion of oxygen from biological responses (respiration) as well as oxidation-reduction reactions within the sediment. The naturally occurring BOD in a wetland is large because of the amount of organic material. The BOD associated with IP’s effluent would be a tiny fraction of the naturally occurring BOD in the effluent distribution system and would be masked by the effect of the SOD. It was estimated that the BOD associated with IP's effluent would represent only about .00000000001 percent of the background BOD, and would have an immeasurable effect. Dr. Pruitt’s testimony about oxygen dynamics in a wetland showed that IP’s effluent should not cause a measurable decrease in DO levels within the effluent distribution system, including Tee and Wicker Lakes. FOPB and James Lane assert that only 200 acres of the effluent distribution system would be inundated by IP’s effluent, so that the alleged assimilation or buffering of the chemical constituents of the effluent would not occur. That assertion misconstrues the record evidence. About 200 acres of the effluent distribution system would be permanently inundated behind the four berms. However, IP proposes to use the entire 1,381-acre system for effluent distribution. The modifications to the berms and the 72-acre reduction in the size of the effluent distribution system would not have a material effect on the assimilative capacity of system. The residence time and travel time of the effluent in the system, for example, would not be materially affected. Variability in topography within the effluent distribution system and in rainfall would affect water depths in the system. The variability in topography, including the creation of some deeper pools, would contribute to plant and animal diversity and overall biological productivity within the system. The pH of the effluent is not expected to change the pH in the effluent distribution system because of natural buffering in the soils. The specific conductance (saltiness) of IP’s effluent is not high enough to adversely affect the biological community in the fresh water wetlands of the effluent distribution system. IP is already close to maintaining compliance with the water quality standard for specific conductance and would be in full compliance by the end of the compliance schedule established in the proposed Consent Order. After the 2007 conversion to brown paper manufacturing, IP’s effluent has shown no toxicity. The effluent has passed the chronic toxicity test, which analyzes the potential for toxicity from the whole effluent, including any toxicity arising from additive or synergistic effects, on sensitive test organisms. Dr. Lane points out that the limits for BOD and TSS in the proposed NPDES permit exceed the limits established by Department rule for discharges of municipal wastewater into wetlands. However, paper mill BOD is more recalcitrant in the environment than municipal wastewater BOD and less “bio- available” in the processes that can lower DO. In addition, the regulatory limits for municipal wastewater are technology-based, representing “secondary treatment.” The secondary treatment technology is not applicable to IP’s wastewater. Sampling in the pilot wetland at the paper mill revealed a diversity of macroinvertebrates, including predator species, and other aquatic organisms. Macroinvertebrates are a good measure of the health of a water body because of their fundamental role in the food web and because they are generally sensitive to pollutants. Petitioners contend that the pilot wetland at the paper mill is not a good model for the effect of the IP’s effluent in the wetland distribution system, primarily because of the small amount of effluent that has been applied to the pilot wetland. Although the utility of the pilot wetland data is diminished in this respect, it is not eliminated. The health of the biological community in the pilot wetland contributes to IP’s demonstration of reasonable assurance that the biological community in the effluent distribution system would not be adversely affected. The effluent would not have a significant effect on the salinity of Tee and Wicker Lakes. Under current conditions, the lakes have a salinity of less than one part per thousand 25 percent of the time, less than 10 parts per thousand 53 percent of the time, and greater than 10 parts per thousand 22 percent of the time. In comparison, marine waters have a salinity of 2.7 parts per thousand. IP’s effluent would not affect the lower end of the salinity range for Tee and Wicker Lakes, and would cause only a minor decrease in the higher range. That minor decrease should not adversely affect the biota in Tee and Wicker Lakes or interfere with their nursery functions. The proposed hydrologic loading rate of the effluent amounts to an average of six-tenths of an inch over the area of effluent distribution system. The addition of IP’s effluent to the wetlands of the effluent distribution system and the creation of permanent pools would allow for permanent fish populations and would increase the opportunity for fish and other organisms to move across the effluent distribution system. Biological diversity and productivity is likely to be increased in the effluent distribution system. By improving fish habitat, the site would attract wading birds and other predatory birds. Although the site would not be open to public use (with the exception of Tee and Wicker Lakes), recreational opportunities could be provided by special permission for guided tours, educational programs, and university research. Even if public access were confined to Tee and Wicker Lakes, that would not be a reduction in public use as compared to the existing situation. IP’s discharge, including its discharges subject to the interim limits established in the Consent Order, would not interfere with the designated uses of the Class III receiving waters, which are the propagation and maintenance of a healthy, well-balanced population of fish and wildlife. The wetlands of the effluent distribution system are the “receiving waters” for IP’s discharge. The proposed project would not be unreasonably destructive to the receiving waters, which would involve a substantial alteration in community structure and function, including the loss of sensitive taxa and their replacement with pollution-tolerant taxa. The proposed WQBELs would maintain the productivity in Tee and Wicker Lakes. There would be no loss of the habitat values or nursery functions of the lakes which are important to recreational and commercial fish species. IP has no reasonable, alternative means of disposing of its wastewater other than by discharging it into waters of the state. IP has demonstrated a need to meet interim limits for a period of time necessary to complete the construction of its alternative waste disposal system. The interim limits and schedule for coming into full compliance with all water quality standards, established in the proposed Consent Order, are reasonable. The proposed project is important and beneficial to the public health, safety, and welfare because (1) economic benefits would accrue to the local and regional economy from the operation of IP’s paper mill, (2) Elevenmile Creek would be set on a course of recovery, (3) the wetlands of the effluent distribution system would become a site of greater biological diversity and productivity, (4) the environmental health of Perdido Bay would be improved, (5) the Department’s decades-long enforcement action against IP would be concluded, (6) substantial areas of important habitat would be set aside for permanent protection, and (7) the effluent distribution system would yield important information on a multitude of scientific topics that were debated by these parties. The proposed project would not adversely affect the conservation of fish or wildlife or their habitats. The proposed project would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. There is no Surface Water Improvement and Management Plan applicable to IP’s proposed discharge. The preponderance of the record evidence establishes reasonable assurance that IP’s proposed project would comply with all applicable laws and that the Consent Order establishes reasonable terms and conditions to resolve the Department’s enforcement action against IP for past violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order granting NPDES Permit No. FL0002526 and approving Consent Order No. 08-0358. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit: "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation." At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED. Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 14th day of October, 1981. COPIES FURNISHED: Valerie Fravel Corporate Counsel General Development Corp. 1111 South Bayshore Drive Miami Florida 33131 Alfred J. Malefatto Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact On July 5, 1978, Gulfside applied to DER for the issuance of a permit to operate a wastewater treatment plant on property owned by it on Perdido Key in Escambia County, Florida. The proposed plant is designed to serve a condominium complex consisting of 64 units, with the expectation that 350 gallons of water per day per unit will be discharged into the system, thus requiring a minimum plant capacity of 22,400 gallons per day. The plant described in the application has a capacity to handle 24,000 gallons per day. The proposed plant will use an extended aeration process whereby effluent is routed from the individual units through a filter within the proposed plant and then discharged into two percolation ponds associated with the facility. The plant is designed to remove 90 percent of B.O.D. and suspended solids. In addition, the plant is designed with duplex blowers and pumps to insure continued operation in the event of failure of one of the units. An emergency generator is included to provide back-up power for the entire plant, including blowers, pumps and chlorinators. Perdido Key, where the proposed plant is to be located, is a barrier island located off the coast of Escambia County, Florida, near the Florida- Alabama border. There is substantial residential development presently on Perdido Key, but no central sewer system exists to service the area. Currently, only septic tanks and package sewer plants are available for waste treatment purposes on the island. Adjacent to Perdido Key is Old River, which has been classified a Class III water. Soils on Perdido Key are primarily sandy, and as a result, have a high percolation rate. The problem of high percolation rate through the soils of Perdido Key was adequately addressed by Gulfside in the design of percolation ponds associated with the proposed plant. The two percolation ponds are designed to be located at a minimum of four feet elevation above maximum high ground water level. In fact, during DER's review of this application, Gulfside agreed to raise the bottom elevation of these percolation ponds in response to a concern regarding their initial location in close proximity to the water table. The problem of the expected fast percolation rate was addressed in designing the size of these percolation ponds, and also taken into consideration in designing the method of distributing effluent across the bottom surface of the ponds. With regard to the latter consideration, initial design of the project contemplated a single point for discharge of effluent into each percolation pond. However, Gulfside has agreed to redesign these percolation ponds in such a fashion to discharge effluent more evenly throughout the bottom area of the ponds too combat the problem of the excess percolation rate. The proposed percolation ponds are designed with surface areas in excess of 15,000 square feet. The ponds were initially designed utilizing a six-to-one slope, which would have given twice the bottom surface area of the three-to-one slope eventually required by DER in the process of reviewing the application. The three-to-one slope shown in the plans and specifications results in a bottom surface area of 2,974 square feet. However, the engineering report submitted with the application indicates that percolation ponds will have a bottom surface area of 4,480 square feet. From the evidence, it would appear appropriate for the ponds to have a minimum bottom surface area of 4,480 square feet. From the evidence, this problem can easily be rectified by raising the bottom elevation of the percolation ponds by approximately one foot. This requirement should be imposed as a condition to the granting of the requested permit. The proposed plant, although designed to remove 90 percent of B.O.D. and suspended solids, is not designed to remove nutrients from the effluent. However, the evidence establishes that these nutrients. Will be removed by a combination of filtration through soil substrata and biological action in the percolation ponds. Gulfside has also agreed to install a spartina marsh waterward of the percolation ponds to act as a final nutrient scrubber. The system design is reasonably calculated to assure removal of harmful quantities of nutrients, and no competent evidence was adduced to indicate that the system design was not sufficient for this purpose. Thus, although the treatment plant is proposed to be located only 50 feet from Old River, there is no indication that it will, in fact, result in any adverse impacts to that water body. In addition, DER has no rules or guidelines regulating distances from which package sewer plants, such as that proposed in this application, should be located from bodies of water such as Old River. It should be noted here that the application which is the subject of this proceeding is solely for the purpose of construction of the proposed facility. DER has imposed a permit condition requiring an initial four months operation for appropriate testing to determine compliance with the rules and regulations promulgated by DER before issuance of an operation permit. If testing demonstrates noncompliance with DER's rules and regulations, the operating permit for the facility can be denied. Testimony adduced at the hearing established that members of Petitioner, Southest Escambia Improvement Association, Inc., own property in the vicinity of the proposed facility, and that they utilize waters surrounding Perdido Key for sailing, swimming, crabbing and other recreational uses. Both Petitioner and Gulfside have submitted Proposed Findings of Fact. Petitioner's Proposed Findings of Fact numbered 1, 2, 3, 4 and 8 have been substantially adopted in this Recommended Order. Gulfside's Proposed Findings of Fact numbered 1 through 5 have also been substantially adopted in this Recommended Order. To the extent that Proposed Findings of Fact submitted by either Petitioner or Gulfside are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues under consideration in this cause, or as not having been supported by the evidence.
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.
The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, 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 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In March and April of 1976, the petitioner Robert Kornegay placed fill and a culvert across an existing dead-end canal in Oyster Bay Estates, Wakulla County, in order to gain roadway access to other property owned by him. The project involved the placement of approximately fifty feet of fill across an existing upland artificial canal to be used as an access road, and the insertion of a forty-two inch in diameter concrete pipe through the fill. The culvert was placed below or waterward of the mean high water line in an artificially excavated navigable canal near Oyster Bay Estates in Wakulla County, Florida. The canal is approximately one mile in length and contains vegetation which is indicative of regular and periodic inundation. The canal systems in that area lead to the Apalachee Bay, which is a Class II body of water. Concerned that a possible permit and water quality violation was occurring, the respondent's field personnel conducted an on-site investigation of the project in August or September of 1976. It was recommended that certain action be taken and that the petitioner file an application for an after-the- fact permit. Petitioner did file an after-the-fact permit application in March of 1977, with revised plan drawings in May of 1977. A permit application appraisal was conducted by the respondent's environmental specialist in March of 1977. It was noted in his appraisal that poor quality water is frequently created in dead-end canal systems, the most common violations of standards being low dissolved oxygen levels and increased biochemical oxygen demand levels caused by lack of adequate flushing. It was found that the proposed crossing and culvert would greatly reduce the flushing capability of the entire canal system. This would result in violations of standards regulating levels of dissolved oxygen and biochemical oxygen demand and would also diminish the value of the marsh grasses north of the fill. For these reasons, the field inspector concluded that the project would have a significant, adverse impact on the biological resources and the water quality of Apalachee Bay and the existing canal system, and that the permit application should be denied. Various alternatives or modifications to the project were recommended to the petitioner by the respondent's personnel. Having failed to receive a revised permit application, the respondent issued its letter of intent to deny the after-the-fact permit in August of 1977. This letter informed the petitioner with specificity of the reasons why the project was expected to degrade local water quality and listed the specific water quality standards expected to be violated. At the hearing, the petitioner presented dissolved oxygen data taken from sampling near the culvert and in the Bay. This data was highly unreliable due to an inappropriate sampling methodology, possible machine and operating errors, lack of evidence concerning the calibration of equipment and other quality control data and lack of specificity with regard to sampling locations and conditions. Petitioner did testify that he had had no personal complaints about the project in the five years of its existence. Petitioner presented no other competent evidence to demonstrate that the project would comply with applicable water quality and environmental standards, statutes and regulations. The respondent did receive adverse comments concerning the project from other state and federal regulatory agencies. In a tidal creek or an artificial canal, a decrease in tidal flushing adversely affects water quality over a period of time. A decrease in water motion affects water chemistry by causing particles to settle to a soft organic bottom, eventually suffocating organisms. A reduction in flushing may also have an adverse effect upon nutrient exports which form the basis of the aquatic food web. Indications of a reduction in flushing caused by the subject fill and culvert project have been observed on site by the respondent's environmental specialists. These include indicia of scouring, increased turbulence and eddying, shoaling and creation of a head difference behind the fill. The high flow velocities in the pipe result in scouring, which creates a harsh environment and limits the possibility of plant and animal growth in the vicinity. Such hydrodynamic effects indicate that natural conditions have changed as a result of the culvert and fill and that the project could reasonably be expected to result in an alteration of the natural flow of water and a harmful increase in erosion and stagnant areas of water.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petitioner's application for an after-the-fact permit be DENIED. Respectfully submitted and entered this 8th day of July, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 8th day of July, 1981. COPIES FURNISHED: Robert J. Angerer Post Office Box 10468 Tallahassee, Florida 32302 Richard P. Lee Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue presented for determination in this proceeding is whether the City of Bartow is entitled to a renewal of its operating permit to discharge into the Peace River effluent from its sewage treatment plant at the design capacity of 2.75 million gallons per day.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Petitioner owns and operates a sewage treatment plant located at 2505 East Wabash Avenue in Bartow, which discharges effluent into the Peace River. On April 13, 1977, petitioner applied to respondent for a renewal of its operating permit, with the plant designed to treat and discharge a maximum of 2.75 million gallons of wastewater per day. By letter dated May 11, 1977, respondent notified petitioner of its intent to enter a final order denying the permit application for the reason that petitioner's proposed discharge at design capacity (2.75 mgd) would reduce the quality of the Peace River below its established classification. The respondent was specifically concerned with the deleterious impact which operation of petitioner's plant at design flow would have upon the level of dissolved oxygen in the Peace River. The May 11, 1977, letter also set a wasteload allocation which would have to be met by petitioner's plant in order not to depress the water quality of the Peace River below established levels. The allocations were later revised to provide for secondary treatment with nitrification. As noted above, these allocations were challenged in a Section 120.56, Florida Statutes, proceeding. By final order entered on September 14, 1978, it was held that said wasteload allocations did not constitute a rule within the meaning of Chapter 120 and thus were not subject to an attack of invalidity on the ground that they were not adopted pursuant to the rulemaking requirements of Section 120.54, Florida Statutes. The Peace River is classified as a Class III water body. This classification contains criteria designed to promote the use of the water for recreational purposes, including swimming, and for the maintenance of a well- balanced fish and wildlife population. Rule 17-3.09, Florida Administrative Code. In Class III waters, the concentration of dissolved oxygen is not to average less than 5 milligrams per liter (mg/l) in a 24 hour period and should never be less than 4 mg/l. Water quality problems exist in the Peace River even where no sewage treatment plants are discharging, and the River does not consistently meet the dissolved oxygen standards for Class III waters. At low flow conditions, the dissolved oxygen content in the River ranges from two to three mg/l up to six to seven mg/l. Sewage treatment plant effluent contains components known as total Kjeldahl nitrogen (TKN) and biochemical oxygen demand (BOD5). When these components decay they use up free dissolved oxygen, thereby depressing dissolved oxygen levels. In order to maintain the desirable dissolved oxygen (DO) level, it is necessary to control the amount of oxygen demanding substances such as TKN and BOD5 entering the receiving waters. The limitation on the concentration of such effluent components which must be met to assure that water quality standards will not be depressed below the level set for a given classification are known as wasteload allocations. Wasteload allocations are calculated by the respondent for each sewage treatment plant and industrial discharger which discharge effluent into the surface waters of the state. They are determined by use of a mathematical computer model based upon the physical, biological and chemical characteristics of the receiving body of water. In this case, the water system modeled was a segment of the Peace River extending from approximately 1.4 miles above petitioner's discharge point to approximately 46 miles downstream. The respondent conducted two surveys during low flow conditions in November of 1976. During low flow conditions, tributary input is minimal and nonpoint contributions are almost negligible. Point source contributions such as sewage treatment plants and industrial dischargers have their greatest impact during low flow conditions. Based upon the model run by respondent, respondent predicted that the operation of petitioner's plant at design capacity (2.75 mgd) would have a significant deleterious impact upon dissolved oxygen during low flow conditions. Specifically, respondent found that petitioner's discharge causes a DO drop of one milligram per liter at a point less than five miles from the petitioner's point of discharge and a drop from 2 1/2 mg/l to zero from mile ten through fifteen. Much of the testimony presented by the petitioner at the hearing was directed to the reliability of the data used by respondent in its model. Petitioner presented evidence tending to illustrate that nonpoint sources in the River's tributaries are the cause of the depressed DO in the Peace River. However, as noted above, the respondent's model utilized low flow conditions wherein such sources are almost nonexistent. The evidence further tends to illustrate that several coefficient values utilized by the respondent in its model resulted in a less restrictive allocation for petitioner. Even on the date of the hearing, Respondent's witnesses were satisfied and confident that there were no technical inaccuracies in the model used to develop the wasteload allocations for petitioner's plant. Petitioner adduced no conclusive evidence that any of the data or assumptions made by the respondent were erroneous. The petitioner's plant presently discharges about 1.44 million gallons of wastewater per day. This meant that Bartow is presently operating at approximately 50 percent of its capacity. On a monthly average, petitioner's treatment level is well in excess of ninety percent. Five years from now, in 1983, petitioner projects that its flow will approximate 1.7 million gallons per day. It is predicted that petitioner will not reach its design capacity of 2.75 million gallons per day for twenty years. As, noted above, the respondent's model predicted dissolved oxygen violations based upon the design capacity of 2.75 mgd, for which the petitioner applied. The respondent ran no intermediate low alternatives to predict how close to design capacity the petitioner could come before a violation occurred. Nor did respondent find present DO violations directly attributable to petitioner's discharge. In order to meet the wasteload allocations calculated by the respondent, it will be necessary for petitioner to make capital expenditures approximating $1,676,400.00. This figure is for a discharge of about 1.9 mgd. Such an expenditure would result in an increase to consumers of about 50 percent per month. The least expensive means of disposing of effluent would be for petitioner to recycle it to area phosphate mining companies, and not to discharge into the Peace River at all.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the application of the petitioner to discharge effluent into the Peace River at design capacity (2.75 million gallons per day) be denied. It is further recommended that petitioner submit to the respondent a revised application which clearly indicates the amount of discharge expected for the permit period, and that respondent review said application anew. Respectfully submitted and entered this 4th day of October, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William S. Blakeman Campbell, Dunlap, Coward and Blakeman Post Office Box 916 Lakeland, Florida 33802 Louis F. Hubener Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Jay W. Landers Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact B. D. Taylor, Respondent, is the owner of a wastewater treatment facility near Panama City, Florida, which serves a community of some 125-150 mobile homes at Lane Mobile Home Estates. The facility has a 24,000 gallons per day capacity to provide secondary treatment of wastewater with percolating ponds. It was first permitted in 1971 upon construction and has been in continuous operation since that time. In 1980 Respondent employed the services of a consultant to apply for a renewal of its temporary Permit to operate a wastewater treatment facility. This application stated the temporary operating permit (TOP) was needed to give Respondent time to connect to the regional wastewater treatment facility. The schedule contained in the following paragraph was submitted by Respondent at the time needed to accomplish this objective, Following inspection of the facility, a TOP was issued December 5, 1980 (Exhibit 1), and expired January 1, 1983. TOPs are issued to facilities which do not comply with the requirements for Wastewater treatment. Exhibit 1 contained a schedule of compliance to which Respondent was directed to strictly comply to stop the discharge of pollutants from the property on which the facility is located. These conditions are: Date when preliminary engineering to tie into regional will be complete and notification to DER. July 1, 1981; Date when engineering to tie into regional system will be complete and notification to DER - June 1, 1982; Date construction application will be submitted to phase out present facility - March 1, 1982; Date construction will commence - June 1, 1982; Date construction is to be complete and so certified - October 1, 1982; and Date that wastewater effluent disposal system will be certified "in compliance" to permit - January 1, 1903. None of these conditions or schedules has been met by Respondent. The regional wastewater treatment facility was completed in 1982 and Respondent could have connected to this system in the summer of 1982. This wastewater treatment facility is a potential source of pollution. The holding ponds are bordered by a ditch which is connected to Game Farm Greek, which is classified as Class III waters. The size of Game Farm Creek is such that any discharge of pollution to this body of water would reduce its classification below Class III. On several occasions in the past there have been breaks in the berm surrounding the holding ponds which allow the wastewater in the holding ponds to flow into the ditch and into Game Farm Creek. Even without a break in the berm, wastewater from these holding ponds will enter Game Farm Creek either by percolation or overflow of the holding ponds caused by the inability of the soil to absorb the effluent. On January 28, 1983, this facility was inspected and the results of the inspection were discussed with the operators of the facility. The plant was again inspected on February 8 and February 18, 1983. These inspections disclosed solids were not settling out of the wastewater in the settling tanks; inadequate chlorination of the wastewater was being obtained in the chlorination tanks; samples taken from various points in the system, the ditch along side the holding tanks and in Game Farm Creek, disclosed excess fecal coliform counts; and that very poor treatment was being afforded the wastewater received at the plant as evidence by high levels of total Kejhdal nitrogen and ammonia, high levels of phosphates, high biochemical oxygen demand, and low levels of nitrates and nitrites. In July, 1983, in response to a complaint about odors emanating from the plant, the facility was again inspected. This inspector found the aeration tanks anaerobic, effluent had a strong septic odor, the clarifier was cloudy, the chlorine feeder was empty, no chlorine residual in contact tank, final effluent was cloudy, both ponds were covered with duckweed and small pond was discharging in the roadside ditch (Exhibit 14) Expenses to Petitioner resulting from the inspections intended to bring Respondent in compliance with the requirements for wastewater treatment facilities are $280.32 (Exhibit 9)
