The Issue The issue to be determined in this case is whether the Respondents, Florida Department of Transportation (“FDOT”) and Palm Beach County (also referred to as “the Applicants”), are entitled to the issuance of an Environmental Resource Permit (“ERP”) to construct an extension of State Road 7 (“SR 7”) and its associated surface water management system in Palm Beach County.
Findings Of Fact The Parties The City is a municipality incorporated under Florida law. The District is a regional agency with the authority to regulate the construction, operation, and maintenance of any surface water management system pursuant to chapter 373, Part IV, Florida Statutes, and Florida Administrative Code Titles 40E and 62. FDOT is an agency of the state of Florida charged with the establishment, maintenance, and regulation of public transportation. It is a co-applicant for the ERP permit. Palm Beach County is a political subdivision of the State of Florida, and is a co-applicant for the ERP permit. Background State Road 7 Extension The ERP was issued by the District for an 8.5-mile extension of SR 7 between Okeechobee Boulevard and Northlake Boulevard in Palm Beach County. The purpose of the proposed roadway is to relieve traffic now moving through rural residential areas and two large residential developments known as The Acreage and Jupiter Farms. The proposed roadway would also improve hurricane evacuation by providing additional capacity and connectivity, and reduce emergency response time in the rural residential areas. The proposed roadway alignment was selected by FDOT after a multiyear corridor study under a National Environmental Protection Policy Act process. Four corridors were considered using federal selection criteria that addressed social, environmental, property, physical, and financial impacts. There are two segments of the proposed roadway covered by the ERP. The southern segment would add two more lanes to the existing two-lanes of SR 7 from Okeechobee Boulevard North to 60th Street North, just south of the M-Canal. This segment is 4.4 miles long. The southern segment is not at issue in this case. The northern segment would extend four lanes of SR 7 east from 60th Street North about one mile, and then north 3.1 miles to Northlake Boulevard. This is the roadway segment challenged by Petitioner. Hereafter, all references to “the Project” are to the northern segment. The Project includes a raised roadway, median, sidewalks, bike lanes, and stormwater swales. It also includes a bridge over the M-Canal and a bridge over a water control outfall. The Project would be constructed in an existing right- of-way (“ROW”). FDOT owns a ROW that is approximately 200 feet wide. The County owns an adjacent 120-foot-wide ROW, so that the total width of the Project ROW is 320 feet. Running north/south within the ROW is a dirt service road, a ditch, and a fence. Much of the vegetation in the ROW is dominated by invasive and exotic plant species, including Melaleuca, Carolina Willow, Brazilian Pepper, and Australian Pine. The Ibis Development West of the Project ROW is the 1,958-acre Ibis Golf and Country Club residential development (“Ibis”). In 1989, an ERP was issued for Ibis’ surface water management system (“the Ibis system”). The Ibis system includes almost 300 acres of interconnected lakes that provide water management and water quality treatment for Ibis. The 1989 permit required the Ibis system to be sized to receive and treat runoff from a segment of Northlake Boulevard and from an existing two-lane road off of Northlake Boulevard that serves the commercial area of Ibis, which is directly north of the Ibis residential area. The Ibis system was also required to receive and provide water treatment and storage for the stormwater runoff from 46.8 acres of the ROW for SR 7. The parties introduced evidence about modifications to the 1989 permit, which the City contends reduced the treatment capabilities of the system. It is found from the preponderance of the evidence that the original system and its modifications continued to meet design requirements to store and treat future runoff from 46.8 acres of the SR 7 ROW.1/ When the water in the Ibis lakes reaches elevation 17.5 feet NGVD (National Geodetic Vertical Datum), pumps at two pump stations at the south end of Ibis begin pumping water over a berm into Ibis Preserve, a 366-acre natural area directly south of Ibis. Water is retained in Ibis Preserve unles it exceeds an elevation of 18.5 feet, when it then passes over an outfall structure into the Grassy Waters Everglades Preserve (“Grassy Waters”) to the east. Ibis Preserve provides additional water quality treatment for the water pumped from Ibis, but this additional treatment was not part of the calculation of water quality management for Ibis. The Ibis system was required to meet District permitting criteria before discharge to Ibis Preserve. The North Palm Beach County Improvement District (“Improvement District”) owns and has operational and maintenance responsibility for the Ibis system. It also owned and managed Ibis Preserve, but transferred ownership and management of Ibis Preserve to the City in 2004. Grassy Waters/Water Catchment Area To the east of the Project is the City-owned “Water Catchment Area,” which covers about 14,700 acres or 23 square miles. The Water Catchment Area is owned by the City and is part of its public drinking water supply system. Water in the Water Catchment Area flows to Lake Mangonia where it is withdrawn, treated, and then delivered to residents and businesses in the City, the Town of Palm Beach, and the Town of South Palm Beach. There is a statement in the Project application that Grassy Waters refers only to the open water marsh within the Water Catchment Area. The Water Catchment Area includes other habitat types besides open marsh. Most of the information in the record indicates that Grassy Waters and the Water Catchment Area have the same boundaries. Therefore, in this Recommended Order, Grassy Waters and the Water Catchment Area are treated as being two names for the same area. Grassy Waters was once connected to the Everglades and large portions of it have the same characteristics, being an open water marsh with an extended hydroperiod. It is oligotrophic, meaning it is low in nutrients and has an ecosystem adapted to low nutrient conditions. It was undisputed that most areas of Grassy Waters are of high or even pristine environmental quality. Grassy Waters has periphyton, an assemblage of algae that only survive in phosphorous levels of less than 10 parts per billion (“ppb”). Periphyton is the base of the food chain in the open water marsh area of Grassy Waters and is consumed by apple snails and many invertebrates and fish. Grassy Waters has a visitor and nature center and provides recreational opportunities, such as canoeing, hiking, and bird watching. There appeared to be disagreement about whether the Project ROW is located in Grassy Waters or adjacent to it. The ROW is not within Grassy Waters, it is adjacent. However, the wetlands and other surface waters within the ROW are hydrologically connected to Grassy Waters. In the western part of Grassy Waters, which ends at the Project ROW, there are hammock islands and hydric pine flatwoods. The City contends these areas and the rest of the ROW were historically open water marsh, but were changed by human activities. The more persuasive evidence is that this western area was not all open marsh, historically. It was an area of natural transition from open water marsh to other habitat types. Ibis Impacts to Grassy Waters The parties disputed whether the Ibis system is a “failed system.” This is not a technical or defined term. The relevant issue is whether the Ibis system is operating in conformance with the requirements of its permit. The City contends the Ibis lakes are eutrophic and that sediment accumulation in the lakes is releasing phosphorus back into the water, which ends up in Grassy Waters. However, the City’s expert witness, Dr. Harper, admitted that the phosphorus concentration being discharged from the Ibis system, about 40 ppb, is typical for surface water management systems serving large residential developments, although that concentration is at the high end of the range. The phosphorus concentration is closer to 30 ppb in discharges from Ibis Preserve into Grassy Waters, showing that Ibis Preserve provides additional treatment to the waters coming out of Ibis. The characterization of the nutrient loading from the Ibis system as “typical” did not address the additional nutrients in the drainage that the Ibis system is required to accept from the SR 7 ROW. The record does not show that the nutrient concentrations from the Ibis system would still be typical if all of the ROW drainage were added without pre-treatment, as was contemplated by the 1989 Ibis permit. Because Grassy Waters is an oligotrophic ecosystem, it can be adversely affected by phosphorus levels above 10 ppb. When phosphorus is introduced into an oligotrophic system in concentrations over 10 ppb, the system begins to change to denser wetland vegetation, which can include invasive and nuisance species, such as cattail. There is denser vegetation and cattails in Grassy Waters near the Ibis Preserve outfall. There is also more phosphorus in sediments near the outfall. These effects decrease with distance from the outfall, but some effects were detected as far as a half mile from the outfall. The City’s expert witness, Dr. Gaiser, testified that periphyton is dissolved by high nutrient levels and replaced by weedy algae. She found adverse effects on periphyton near the outfall. Dr. Gaiser also found microcystis near the outfall. Microcystis is a toxic algae caused by high elevations of phosphorous. Microcystis comprised over 10 percent of the cell density of the algal community near the outfall. The District’s witness, Mr. Waterhouse, conceded that there is a problem with nuisance vegetation at the discharge point into Grassy Waters. He said the District was not aware of the problem before information was developed for this case. No evidence was presented about what consideration the District gave in 1989, when Ibis was permitted, to the potential adverse impacts of discharging phosphorus into the oligotrophic ecosystem of Grassy Waters. Based on the evidence that a phosphorus concentration of 30 ppb is expected for this kind of surface water management system, it must be concluded that the Ibis system was not designed to prevent harm to oligotrophic receiving waters. Respondents presented evidence to show that phosphorus loadings from the M-Canal could be the cause of the adverse impacts found near the Ibis Preserve outfall. The M-Canal was constructed by the City for the primary purpose of delivering water from Lake Okeechobee, via connection to the L-8 Canal, to the Water Catchment Area for public water supply. For most of its length, the M-Canal runs through Grassy Waters. The City generally maintains the water level in the M-Canal below the elevation of Grassy Waters so water in the canal will not flow into Grassy Waters. However, on some occasions, water flows from the M-Canal into Grassy Waters. High phosphorus concentrations have been recorded in the M-Canal; as high as 300 ppb. Nuisance vegetation is growing in the area where the M-Canal connects to the Water Catchment Area. The preponderance of the evidence establishes that the adverse impacts described by the City’s experts in the area of the Ibis Preserve outfall are caused primarily by discharges from Ibis Preserve. There are three other developments adjacent to Grassy Waters that occasionally discharge to Grassy Waters. These discharges are likely to contain some nutrients, but the amount of nutrients and their effects, if any, on Grassy Waters were not described in the record. The Water Catchment Area is a Class I waterbody because it is used for public water supply. The water quality standard for phosphorus and other nutrients in a Class I waterbody is set forth in Florida Administrative Code Rule 62-302.530(48)(b): In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna. Grassy Waters was designated by the Department of Environmental Protection (“DEP”) as a stream. Rule 62-302.531(2)(c) states that the narrative criterion “shall be interpreted as being achieved in a stream segment where information on chlorophyll a levels, algal mats or blooms, nuisance macrophyte growth, and changes in algal species composition indicates there are no imbalances in flora or fauna.” The City presented some evidence regarding nuisance macrophyte growth and changes in algal species composition in Grassy Waters near the Ibis Preserve outfall. Little evidence was presented regarding the practice of DEP or the District in the application of the narrative nutrient standard, but the preponderance of the evidence indicates the agency practice is to consider a stream segment as a whole to determine whether it exhibits an imbalance in natural populations of aquatic flora and fauna.2/ During the course of this proceeding, the District issued administrative complaints against the Improvement District and the City, which include Orders for Corrective Action. The complaints were issued pursuant to section 373.119, Florida Statutes, which authorizes such action when a water management district believes that a violation of any provision of chapter 373 or district rule has occurred. However, at the final hearing, the District was reluctant to say the Improvement District had violated any law or permit condition. The Improvement District did not challenge the enforcement action against it and, therefore, the District’s enforcement order became final. The Improvement District is required to address the accumulation of sediment in the Ibis Lakes, develop a nutrient source control plan, eliminate and reduce the use of herbicides containing copper sulfate, and reassess pumping schedules. There is no target nutrient limit specified in the District’s Orders for Corrective Action. The District’s enforcement action against the City seeks to require the City to increase secondary treatment and retention in Ibis Preserve, provide a plan to remove the exotic/invasive vegetation at the outfall, provide a vegetation monitoring plan, and develop source control measures for residential developments that discharge into Grassy Waters. The City challenged the enforcement action and it remains pending. Snail Kites The Everglades snail kite gets its name from its primary food, the apple snail. In the Everglades, snail kites also feed on an exotic island snail, which occurs there in about equal numbers as apple snails. There was no evidence presented that there are exotic island snails in Grassy Waters. Snail kite habitat is dependent on conditions conducive to apple snails, which are the open marsh and oligotrophic conditions where periphyton flourish. If a sufficient number of apple snails are present, snail kites will find suitable nesting nearby. Dense wetland vegetation is not good forage for snail kites because, even if apple snails are present, the apple snails will be difficult or impossible for the snail kites to see. Dr. Welch, who was the state snail kite conservation coordinator at the Florida Fish and Wildlife Conservation Commission and wrote the snail kite management plan for Florida, testified for the District, where he is now employed as a senior scientist. He said field surveys of snail kite nests in Grassy Waters indicate their numbers are relatively low compared to other areas where snail kites are found. There were only ten successful nests (eggs laid) observed from 2000 to 2016. The City’s Everglades expert, Dr. Lodge, speculated that the low nest counts could be due to difficulty in seeing the nests, but he was not familiar with the survey techniques used and, therefore, his opinion that the numbers could be materially underestimated is not credited. Snail kites nest throughout the Water Catchment Area, but primarily in the open marsh areas of the central and eastern portions of the Water Catchment Area. Over 90 percent of snail kite nests are more than a mile from the Project ROW. Dr. Lodge said there are four snail kite nests within 800 feet of the Project, but he was not more specific about their locations. Most nests are closer to Northlake Boulevard, State Road 710, and the Florida Turnpike. The major factor that adversely affects successful nesting by snail kites and production of offspring is predation, usually by raccoons and rat snakes. “Cold snaps” and drought are also factors. Impacts of The Proposed Project Water Quantity Impacts Water storage for the Project, which was going to be handled in the Ibis system under the 1989 Ibis permit, would be provided in the roadside swales. The Project is designed to retain water volumes greater than typically required for roadways. Stormwater would not flow out of the Project into the Ibis system except in unusually large storm events, in excess of six inches of rainfall. The City did not dispute the Project’s compliance with the applicable water quantity criteria in the District rules. Water Quality Impacts To address the City’s concerns about adverse impacts caused by the Ibis system, the Applicants expanded the roadside swales by ten feet and raised the outfall elevation by 0.05 feet. With these modifications, the Project would provide water quality treatment for its stormwater and no longer rely on the Ibis system for treatment. The swales would provide treatment in excess of the treatment required by District rules. Respondents contend that, when the treatment provided by the Ibis system is added, the total treatment provided for the Project stormwater is more than twice as much as required by District rules. The City, on the other hand, claims that no additional water quality treatment can be provided by the Ibis system because the Ibis Lakes are eutrophic. The preponderance of the evidence supports a finding that Project runoff to the Ibis system would receive additional water quality treatment in the Ibis system and in Ibis Preserve before flowing to Grassy Waters. The effect of the Project’s on-site treatment of its stormwater is that the amount of nutrients that would otherwise flow into the Ibis system from SR 7 would be reduced. Therefore, the effect of the Project is to reduce the nutrient load that the Improvement District was permitted to discharge to Ibis Preserve and Grassy Waters. The City did not dispute the Applicants’ evidence that the Project exceeds the District’s design criteria for water quality. The City focused instead on its contention that, despite its compliance with water quality design criteria, the Project would result in additional nutrient loading to Grassy Waters, which would cause additional adverse impacts to its flora and fauna. The Applicants and the City performed nutrient loading analyses even though such analyses are only required by the District when the receiving waters have been designated by the Department as “impaired” by nutrients or in the case of certain other specially designated waters. Grassy Waters does not have any of these special designations. The Applicants’ nutrient loading analysis concluded that the post-development loading of phosphorus and nitrogen from the Ibis system would be less than the pre-development condition, so there would be a net decrease in nutrients discharged into Grassy Waters. Petitioner’s expert witness, Dr. Harper, believes the Project would increase nutrient loading to Grassy Waters, even if stormwater from the Project did not carry additional nutrients, because the increased volume of water moving through the Ibis system would entrain more nutrients from sediments in the Ibis lakes. Dr. Harper believes the Project would also cause nutrient loading via groundwater seepage through the roadway swales into Grassy Waters. The preponderance of the evidence does not support his opinion that groundwater seepage would cause additional nutrient loading.3/ Dr. Harper believes another source of nutrient loading from the Project would be from surface flow down the roadway embankments. On the eastern embankment, this flow would enter the mitigation area 150 feet from Grassy Waters. Dr. Harper’s estimated total loading from all sources is not persuasive. The estimate gives a false sense of precision. It is based on a number of variable assumptions, some of which are not widely known or in use by experts in the field. In addition, Dr. Harper’s opinion did not appear to appropriately account for the modifications to the Project’s storage capacity. Dr. Harper’s estimated loading was not translated into physical effects in Grassy Waters. The Applicants’ estimate of total nutrient loading also gives a false sense of precision, but it is based on a well-known and widely used methodology. The City failed to prove that the Project would result in more nutrient loading to Grassy Waters than is currently contributed by the ROW. Because the Project would not rely on the Ibis system for stormwater treatment, the Project would reduce the loading that the Improvement District was permitted to discharge to Grassy Waters. To address potential vehicular spills into Grassy Waters, FDOT produced a Spill Response Plan. The swales would capture and contain any material spilled on the roadway or swale. The curb and gutter, a guardrail, gravity wall, and fence also provide protection against spills. The bridge over the M-Canal would use a 54-inch traffic barrier, which is higher than FDOT specifications for the design speed for the bridge. The City did not present evidence to show that the protective measures proposed by the Applicants are less than what is usually considered adequate under similar circumstances, or fails to meet a relevant safety standard. Wetland Impacts Direct Impacts The Project would directly impact 52.37 acres of wetlands and 7.86 acres of surface waters. The impacted wetlands are fresh water marsh, mixed shrubs, and hydric pine flatwoods. The surface waters affected consist of vegetated ditches and un- vegetated channels or canals. The impacted wetlands include 11.77 acres of freshwater marsh. The impacted surface waters are ditches. Most of these wetlands are disturbed and their functional values have been reduced. Secondary Impacts District rules require an applicant to account for the secondary impacts caused by a project that could adversely affect the functions of adjacent wetlands or other surface waters. The Applicant’s Handbook defines secondary impacts to include impacts on wetland functions, water quality, and endangered species, including impacts on areas needed by endangered species for foraging. Part of the Applicants’ assessment of secondary impacts of the Project was made by reviewing the effects of the Acreage Reliever Road on Pond Cypress Preserve, a 1,737-acre conservation area managed by the County that is immediately south of the proposed Project. The County has been monitoring the effect of the Acreage Reliever Road on hydrology, vegetation, and species compensation ever since the road was built. The County found no adverse secondary impacts caused by the road. The species that use the wetlands near the road, including wading birds, appear to be unaffected by the road. The scoring of secondary impacts for the Projects, using the Uniform Mitigation Assessment Methodology (“UMAM”), was conservative, meaning that assumptions were made at the high side of the potential range of impacts. This resulted in more mitigation being required. The Applicants claim the Project would “maintain a 300-foot buffer between the project’s construction boundary and [Grassy Waters].” This appears to be a misstatement. The Applicants’ combined ROW is only 320 feet wide. Going east from the limits of construction, it is 160 feet to Grassy Waters. The Project’s buffer is 160 feet wide. The District accounted for secondary impacts to wetland dependent species, including snail kites, from noise and lights that might discourage use of the area. The Project would provide a tree buffer that will reduce noise and light impacts to Grassy Waters. The roadway lighting plan is also intended to reduce light penetration into Grassy Waters. Most of the threatened and endangered bird species are tolerant of roadways for foraging and roosting, but not for nesting. Section 10.2.7 requires the Applicants to provide reasonable assurances that any future phase of a project or project-related activities will not result in adverse impacts to the functions of wetlands or water quality violations. The Applicants satisfied this requirement by releasing of FDOT ROW north and south of the Project. Cumulative Impacts An applicant must provide reasonable assurance that a regulated activity will not cause unacceptable cumulative impacts upon wetlands and other surface waters within the same drainage basin as the regulated activity for which a permit is sought. Some of the proposed mitigation for the Project is out- of-basin. If an applicant proposes to mitigate impacts in another drainage basin, District rules require consideration of factors such as “connectivity of waters, hydrology, habitat range of affected species, and water quality” to determine whether there are unacceptable cumulative impacts. The Project is located in the eastern Palm Beach County Basin, which has approximately 21,000 acres of wetlands. About 89 percent of the wetlands in the basin are publicly-owned conservation lands, which means their wetland functions will continue into the future. The cumulative impact analysis was conservative, meaning that the actual impacts are likely to be fewer. Petitioner contends that Respondents’ cumulative impact analysis did not account for the unique nature of the Grassy Waters ecosystem as the only remaining low nutrient oligotrophic wetland in the region. The preponderance of the evidence shows that the historical wetland types in the Project area were not all like the open marsh found in the central and eastern portion of Grassy Waters. Respondents accounted for the loss of open water marsh that would be caused by the Project. On-Site Mitigation There would be 52.4 acres of on-site mitigation within a 160-foot-wide strip of land along the eastern limits of proposed construction. This area of the ROW would be managed by removing or treating the exotic vegetation, such as Brazilian Pepper and Maleleuca. Removing the exotic vegetation seed source would prevent further spread of these nuisance species into Grassy Waters. Where native habitats have been altered with ditches and berms, the land would be graded to create a slope from the limits of construction eastward to the edge of the ROW. The eastern elevation would be similar to the adjacent marsh or hydric pine areas of Grassy Waters. Then, native vegetation would be planted. The habitats enhanced, restored, or created would include freshwater marsh, hydric pine flatwoods and mixed forested wetlands, including cypress. The planting of mixed, forested species would provide sound and light buffering for snail kites and other species in Grassy Waters. Two wildlife passages would be created underneath the Project with fencing designed to direct wildlife to use the wildlife passages. Slats would be placed in the roadway fencing to prevent small animals from going through the fence and onto the roadway. The on-site mitigation was scored using UMAM and determined to result in functional gain. The UMAM analysis was conservative, meaning that the actual functional gain is likely to be greater. The City did not contest the UMAM scoring. Off-site Mitigation FDOT is applying mitigation credits from 210 acres at the Pine Glades Natural Area (“Pine Glades”) to offset impacts to 15.7 acres of herbaceous marsh and 26.78 acres of forested wetland impacts. Pine Glades is a regional off-site mitigation area located in the Loxahatchee River Basin and is owned and operated by Palm Beach County. Pine Glades consists of a mix of wet prairie, depression marshes, hydric pine flatwoods, and mesic flatwoods. The restoration work in Pine Glades has already been completed. Pines Glades implements a detailed management plan that provides regional ecological value. Robbins testified that Pine Glades has similar habitats to Grassy Waters. Pine Glades has periphyton, apple snails, snail kites, wood storks, and sand hill cranes. Pine Glades has some areas with oligotrophic conditions. Additional off-site mitigation to offset 52 acres of wetland impacts caused by the Project would be provided at the DuPuis Reserve (“DuPuis”). DuPuis is a regional off-site mitigation area located between the L-8 Canal and the C-44 Canal in western Palm Beach and Martin Counties, and is owned and operated by the District. DuPuis would provide mitigation with 34.71 acres of herbaceous wetlands and 43.8 acres of forested wetlands. DuPuis is appropriate to offset the impacts associated with the Project because it provides similar habitats with similar values of functions for similar wildlife. DuPuis implements a detailed management plan that provides regional ecological value. The City argues that there is little similarity between the Grassy Waters ecosystem and Pine Glades or DuPuis, so the mitigation there cannot offset the unique assemblage of plants and animals that would be lost in Grassy Waters. It is unnecessary for Pine Glades and DuPuis to be dominated by open water marshes like Grassy Waters. It is only necessary that they have some of these areas to offset Project impacts to open water marsh. Proposed snail kite mitigation would provide 52.5 more acres of snail kite habitat than would be directly impacted by the Project. The mitigation for snail kites will be located in FDOT ROW adjacent to the Project, south of the M-Canal, and north of Northlake Blvd. Erwin expressed concern about fragmentation of the ecosystems that would be caused by the Project. The areas that would be affected by the Project have already been fragmented by berms, ditches, and fences. Grassy Waters is surrounded by berms, a canal, and highways. The Project would cause fragmentation, like all roads. However, the fragmentation was reduced where practicable, and the City did not show that the roadway would cause the loss of any significant “greenway” now used by wildlife. Snail Kite Impacts Section 10.2.2(a) requires an applicant to provide reasonable assurances that a proposed activity would not impact wetlands and other surface waters so as to reduce the abundance and diversity of listed species. Snail kites, wood storks, sandhill cranes, white ibises, and little blue herons are listed species that have been observed within the Project corridor. As explained in the Conclusions of Law, the UMAM process is designed to mitigate for wetland functional losses, not snail kite functional losses. However, the potential impact to any listed species warrants close attention to the issue of whether function-for-function wetland mitigation would be provided. There will be 11.5 acres of direct impacts to snail kite habitat within the footprint of the Project area. Dr. Welch believes secondary impacts to wetland functions associated with snail kites could extend 800 feet east of the ROW. Mitigation for snail kites would be located in the Rangeline corridor south of the M-Canal and north of Northlake Boulevard. Dr. Welch estimated there were about 64 acres of snail kite habitat in the Rangeline corridor similar to the 11.5 acres of habitat located in the Project footprint. Dr. Welch conceded that he has no evidence that snail kites currently use the Rangeline, but he believes the habitat is suitable and is appropriate mitigation. Petitioner claims there are studies of “similar birds” indicating that snail kites avoid highways due to noise. However, the studies were not of similar birds. More weight is given to Dr. Welch’s testimony that snail kites are not particularly sensitive to roadway noise. Dr. Welch stated that Pine Glades would likely have value for snail kites because it is near the Hungryland Wildlife Management Area, which has the same number of successful snail kite nests as Grassy Waters. The City contends that Pine Glades is too far away from Grassy Waters to mitigate Project impacts to snail kites. However, snail kites range long distances to forage; several hundred miles in a few days. Satellite telemetry of snail kites shows snail kites from Grassy Waters are using Pine Glades for feeding. Dr. Welch reviewed snail kite nesting data to determine whether roads deterred nesting and found that snail kites frequently nested within 500 feet of major roadways. Dr. Welch refuted the idea that Grassy Waters provided snail kite refuge during drought conditions, because Grassy Waters is also subject to drought conditions that adversely affect snail kites. There are conditions in the permit to limit potential impacts to snail kites during construction of the Project. If snail kite nesting is observed within 1,640 feet of construction, all Project construction must cease. Thereafter, monitoring of the nest and notification of the U.S. Fish and Wildlife Service is required. Construction cannot resume until that nest has been considered finished. FDOT would place a conservation easement over 82.6 acres in the FDOT ROW between Okeechobee Boulevard and the M-Canal, south of the Project area that is the subject of this proceeding. The conservation easement would maintain connectivity between the Pond Cypress Natural Area and Grassy Waters and ensure that no future southern extension of the roadway will be constructed. A conservation easement would be placed on the FDOT ROW between Northlake Boulevard and SR 710, an area of approximately 43.5 acres. Preserving this area protects a hydrologic connection between Loxahatchee Slough Natural Area and Grassy Waters. It also ensures no future northern extension of the roadway. A conservation easement would be placed on a portion of the FDOT ROW between SR 710 and Jupiter Farms, an area of 44.5 acres. This section of ROW is in the Loxahatchee Slough and the release of the ROW would be a direct benefit to Loxahatchee Slough. The preservation of these areas would benefit fishing and recreational values in the Pond Cypress Natural Area, Grassy Waters, and the Loxahatchee Slough Natural Area. These conservation areas did not receive UMAM credits to reduce the wetland acreage needed to offset wetland functional losses, but they were included in the mitigation credit for benefits to snail kites and other wildlife. Summary The preponderance of the evidence established that the proposed mitigation offsets the impacts to wetlands and other surface waters that would be caused by the Project and exceeds the requirements of District rules. Practicable Design Modifications District rules require an applicant to consider alternatives that would avoid or reduce wetland impacts. The City claims the Applicants failed to comply with this rule because FDOT selected a roadway corridor that was expected to have greater environmental impacts than some of the other three corridors that were being considered. As explained in the Conclusions of Law, this argument is misplaced. The District’s review of the Applicants’ measures to avoid or minimize wetland impacts was appropriately confined to Corridor 3, the corridor selected by FDOT where the Project is proposed. The Applicants reduced and eliminated impacts of the Project in several ways. For example, the footprint of the road was narrowed from six lanes to four lanes, wildlife underpasses were provided, retaining walls were used to narrow stormwater features, the median was reduced in size, and the design speed limit was reduced for the bridge at the M-Canal crossing. Under two circumstances, District rules allow an applicant to avoid the requirement to implement practicable design modifications to reduce or eliminate wetland impacts, which are referred to as the “opt-out” provisions. Section 10.2.1.2, Volume I, of the Applicant’s Handbook (“A.H.”) provides: The ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on a site specific analysis using the factors in section 10.2.2.3, below, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected, or The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. The District determined that the Applicants meet both tests. The preponderance of the evidence supports the District’s determination. The ecological value of the functions provided by the affected wetlands and surface is low and the proposed mitigation would provide greater long-term ecological value than the area being impacted. Pine Glades and DuPuis are part of a plan to restore the ecological value of Northern Palm Beach County and create an “ocean to lake” system of preserves and natural areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Permit Number 50-05422-P on the terms and conditions set forth in the amended Staff Report, and the complete application for the Permit. DONE AND ENTERED this 31st day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2017.
The Issue The issue in this matter is whether Respondent, Polk County Board of Commissioners (Polk County or County) has provided Respondent, Southwest Florida Water Management District (SWFWMD), with reasonable assurances that the activities Polk County proposed to conduct pursuant to Standard General Environmental Resource Permit (ERP) No. 4419803.000 (the Permit) meet the conditions for issuance of permits established in Rules 40D-4.301, and 40D-40.302, Florida Administrative Code. (All rule citations are to the current Florida Administrative Code.)
Findings Of Fact Events Preceding Submittal of ERP Application The Eagle-Millsite-Hancock drainage system dates back to at least the 1920's, and has been altered and modified over time, especially as a result of phosphate mining activities which occurred on OFP property in the 1950's-1960's. The system is on private property and is not owned and was not constructed by the County. Prior to 1996, the Eagle-Millsite-Hancock drainage system was in extremely poor repair and not well- maintained. The Eagle-Millsite-Hancock drainage system originates at Eagle Lake, which is an approximately 641-acre natural lake, and discharges through a ditch drainage system to Lake Millsite, which is an approximately 130-acre natural lake. Lake Millsite drains through a series of ditches, wetlands, and ponds and flows through OFP property through a series of reclaimed phosphate pits, ditches and wetlands and ultimately flows into Lake Hancock, which is an approximately 4500-acre lake that forms part of the headwaters for the Peace River. The drainage route is approximately 0.5 to 1 mile in overall length. The Eagle-Millsite-Hancock drainage system is one of eight regional systems in the County for which the County and SWFWMD have agreed to share certain funding responsibilities pursuant to a 1996 letter agreement. To implement improvements to these drainage systems, Polk County would be required to comply with all permitting requirements of SWFWMD. During the winter of 1997-1998, Polk County experienced extremely heavy rainfall, over 39 inches, as a result of El Nino weather conditions. This unprecedented rainfall was preceded by high rainfalls during the 1995-1996 rainy season which saturated surface waters and groundwater levels. During 1998, Polk County declared a state of emergency and was declared a federal disaster area qualifying for FEMA assistance. Along the Lake Eagle and Millsite Lake drainage areas, septic tanks were malfunctioning, wells were inundated and roads were underwater. The County received many flooding complaints from citizens in the area. As a result of flooding conditions, emergency measures were taken by the County. The County obtained SWFWMD authorization to undertake ditch cleaning or vegetative control for several drainage ditch systems in the County, including the Eagle-Millsite-Hancock drainage system. No SWFWMD ERP permit was required or obtained for this ditch cleaning and vegetative control. During its efforts to alleviate flooding and undertake emergency ditch maintenance along the Eagle-Millsite-Hancock drainage route, the County discovered a driveway culvert near Spirit Lake Road which was crushed and impeding flow. The evidence was unclear and contradictory as to the size of the culvert. Petitioner's evidence suggested that it consisted of a 24-inch pipe while evidence presented by the County and by SWFWMD suggested that it was a 56-inch by 36-inch arched pipe culvert. It is found that the latter evidence was more persuasive. On February 25, 1998, the County removed the crushed arched pipe culvert at Spirit Lake Road and replaced it with two 48-inch diameter pipes to allow water to flow through the system. The replacement of this structure did not constitute ditch maintenance, and it required a SWFWMD ERP. However, no ERP was obtained at that time (although SWFWMD was notified prior to the activity). (One of the eight specific construction items to be authorized under the subject ERP is the replacement of this culvert.) Old Florida Plantation, Ltd. (OFP) property also experienced flooding during February 1998. OFP's property is situated along the eastern shore of Lake Hancock, and the Eagle- Millsite-Hancock drainage system historically has flowed across the property before entering Lake Hancock. In the 1950's and 1960's, the property was mined for phosphate. The mining process destroyed the natural vegetation and drastically altered the soils and topography, resulting in the formation of areas of unnaturally high elevations and unnaturally deep pits that filled with water. OFP purchased the property from U.S. Steel in 1991. The next year OFP initiated reclamation of the property, which proceeded through approximately 1998. In 1996, OFP applied to the County for approval of a development of regional impact (DRI). OFP blamed the flooding on its property in 1998 on the County's activities upstream, claiming that the property had never flooded before. But upon investigation, the County discovered a 48-inch diameter pipe on OFP property which, while part of OFP's permitted drainage system, had been blocked (actually, never unopened) due to OFP's concerns that opening the pipe would wash away wetlands plants recently planted as part of OFP's wetland restoration efforts. With OFP and SWFWMD approval, the County opened this pipe in a controlled manner to allow flowage without damaging the new wetlands plants. Following the opening of this blocked pipe, OFP property upstream experienced a gradual drop in flood water levels. When the water level on OFP's property stabilized, it was five feet lower and no longer flooded. Nonetheless, OFP continues to maintain not only that the County's activities upstream caused flooding on OFP property but also that they changed historic flow conditions. This contention is rejected as not being supported by the evidence. Not only did flooding cease after the 48-inch pipe on OFP's property was opened, subsequent modeling of water flows also demonstrated that the County's replacement of the crushed box culvert at the driveway on Spirit Lake Road as described in Finding 8, supra, did not increase flood stages by the time the water flows into the OFP site and did not cause flooding on OFP property in 1998. (To the contrary, OFP actions to block flows onto its property may have contributed to flooding upstream.) On October 6, 1998, the County entered into a contract with BCI Engineers and Scientists to initiate a study on the Eagle-Millsite-Hancock drainage system, identify options for alleviating flooding along the system and prepare an application for an ERP to authorize needed improvements to the system. Prior to the County's submittal of an ERP application, SWFWMD issued a conceptual ERP to OFP for its proposed wet detention surface water management system to support its proposed DRI on the OFP property. OFP's conceptual permit incorporated the Eagle-Millsite-Hancock drainage system and accommodated off-site flowage into the system. Before submitting an ERP application to SWFWMD, the County had communications with representatives of OFP concerning an easement for the flow of the drainage system through OFP property. In March 1999, the County reached an understanding with OFP's engineering consultant whereby OFP would provide the County with an easement across OFP lands to allow water to flow through to Lake Hancock. In turn, the County would: construct and pay for a control structure and pipe east of OFP to provide adequate flowage without adversely affecting either upstream or downstream surface waters; construct and upgrade any pipes and structures needed to convey water across OFP property to Lake Hancock; and provide all modeling data for OFP's review. The ERP Application Following completion of the engineering study, the County submitted ERP Application No. 4419803.000 for a Standard General ERP to construct improvements to the Eagle-Millsite- Hancock drainage system on August 18, 1999. Eight specific construction activities are proposed under the County's project, at various points along the Eagle- Millsite-Hancock drainage system as follows: 1) Add riprap along channel bottom; 2) Modify culvert by replacing 56-inch by 36- inch arch pipe by two 48-inch pipes (after-the-fact, done in 1998, as described in Finding 8, supra); 3) Add riprap along channel bottom; 4) Add box, modify culvert by replacing existing pipe with two 48-inch pipes, add riprap along channel bottom; 5) add riprap along channel bottom; 6) Add weir, modify culvert by replacing existing 24-inch pipe with two 48-inch pipes, add riprap along channel bottom; 7) Add box and modify culvert by replacing existing 24-inch pipe with two 48-inch pipes; 8) Modify existing weir. Under the County's application, construction activities Nos. 6, 7, and 8 would occur on OFP property. In addition, it was proposed that surface water would flow across OFP's property (generally, following existing on-site drainage patterns), and it was indicated that flood elevations would rise in some locations on OFP's property as a result of the improvements proposed in the County's application. (Most if not all of the rise in water level would be contained within the relatively steep banks of the lakes on OFP's property--the reclaimed phosphate mine pits.) In its application, the County stated that it was in the process of obtaining easements for project area. As part of the ERP application review process, SWFWMD staff requested, by letter dated September 17, 1999, that the County clarify the location of the necessary rights-of-way and drainage easements for the drainage improvements and provide authorization from OFP as property owner accepting the peak stage increases anticipated in certain OFP lakes as a result of the County's proposed project activities. On September 28, 1999, OFP obtained a DRI development order (DO) from the County. In pertinent part, the DRI DO required that OFP not adversely affect historical flow of surface water entering the property from off-site sources. Historical flow was to be determined in a study commissioned by the County and SWFWMD. The DO appeared to provide that the study was to be reviewed by OFP and the County and approved by SWFWMD. Based on the study, a control structure and pipe was to be constructed, operated and maintained by the County at the upstream side of the property that would limit the quantity of off-site historical flow, unless otherwise approved by OFP. OFP was to provide the County with a drainage easement for this control structure and pipe, as well as a flowage easement from this structure, through OFP property, to an outfall into Lake Hancock. The DO specified that the flowage easement was to be for quantitative purposes only and not to provide water quality treatment for off-site flows. The DO required OFP to grant a defined, temporary easement prior to first plat approval. In its November 11, 1999, response to SWFWMD's request for additional information, the County indicated it would obtain drainage easements and that it was seeking written acknowledgment from OFP accepting the proposed increases in lake stages. During the ERP application review process, the County continued efforts to obtain flowage easements or control over the proposed project area and OFP's acknowledgment and acceptance of the increase in lake stages. At OFP's invitation, the County drafted a proposed cross-flow easement. But before a binding agreement could be executed, a dispute arose between OFP and the County concerning other aspects of OFP's development plans, and OFP refused to enter into an agreement on the cross- flow easement unless all other development issues were resolved as well. On August 4, 2000, in response to SWFWMD's request that the County provide documentation of drainage easements and/or OFP's acceptance of the increased lake stages on OFP property, the County submitted a proposed and un-executed Perpetual Flowage and Inundation Easement and an Acknowledgment to be signed by OFP accepting the increased lake stages. On August 7, 2000, the OFP property was annexed by the City of Bartow (the City). On October 16, 2000, the City enacted Ordinance No. 1933-A approving OFP's DRI application. The City's DO contained essentially the same provision on Off- Site Flow contained in the County's DO. See Finding 18, supra. However, the City's DO specified that the historical flow study was required to be reviewed and approved by OFP (as well as by the County and by SWFWMD). OFP has not given formal approval to historical flow studies done to date. On October 6, 2000, SWFWMD issued a Notice of Final Agency Action approving Polk County ERP No. 4419803.000. Permit Specific Condition No. 7 provides that "all construction is prohibited within the permitted project area until the Permittee acquires legal ownership or legal control of the project area as delineated in the permitted construction drawings." As a result of this permit condition, the County cannot undertake construction as authorized under the Permit until any needed easement or legal control is obtained. Precise Easement Route Approximately two months before final hearing, a dispute arose as to the precise cross-flow easement route proposed by the County. OFP had understood that the County's proposed route was based on a detailed survey. But closer scrutiny of the County's proposed route indicated that it cut corners of existing lakes on OFP's property, crossed residential lots proposed by OFP, and veered north into uplands (also proposed for residential use) in the western portion of the route before looping south and then north again to the outfall at Lake Hancock. Information subsequently revealed in the course of discovery suggested that the County's proposed route may have been based on pre-reclamation topography of OFP's property. After OFP recognized the implications of the cross- flow easement route being proposed by the County, OFP provided the County with several different alternative easement routes through the OFP property. While agreement as to the precise route has not yet been reached, the precise route of the easement is not significant to the County, as long as water can flow across OFP property to Lake Hancock and so long as the County does not have to re-locate existing ditches. Such adjustments in the location of the proposed flowage easement would not affect SWFWMD staff's recommendation for permit issuance, as long as it covered the defined project areas. In addition, OFP's current site plan is a preliminary, conceptual plan subject to change before it is finalized. Regardless what cross-flow easement route is chosen, it will be temporary and subject to modification when OFP's development plan is finalized. If the County is unable to not negotiate a flowage easement across OFP property, it could obtain whatever easement is required through use of the County's eminent domain powers. The County's acquisition of an easement to accommodate a flowage route and anticipated increased stage on OFP property gives reasonable assurance that any stage increases will not cause adverse impacts to OFP property and gives reasonable assurance that the County will have sufficient legal control to construct and maintain the improvements. Project Area The County applied for a Standard General Permit and specified a total project area of 0.95 acre. This acreage reflects the area required for actual construction and alteration of control structures and drainage ditches in the preexisting Eagle-Millsite-Hancock system. It does not reflect the entire acreage drained by that system (approximately 1,800 to 2,000 acres). It also does not reflect the area of the cross-flow easement, which the County has yet to obtain. When determining project size for purposes of determining the type of permit applicable to a project, SWFWMD staff considers maximum project area to be limited to the acreage owned or controlled by the applicant. In addition, since this is a retrofit project for improvement of an existing drainage system not now owned or controlled by the County, SWFWMD staff only measured the area required for actual construction and alteration of control structures and drainage ditches. Future easements necessary for future maintenance of the system were not included. When OFP applied for its conceptual ERP for its proposed DRI, the project area was considered to be the acreage owned by OFP. The rest of the basin draining through OFP's property to Lake Hancock (again, approximately 1,800 to 2,000 acres) was not considered to be part of the project area. Water Quantity Impacts The County's project will retrofit certain components of the same drainage system which OFP will utilize for surface water management and treatment pursuant to its conceptual ERP. Modeling presented in the County's application demonstrates that there will be some rises and some lowering of some of the lake levels on OFP's property during certain rain events. Anticipated rises are lower than the top of banks authorized in OFP's conceptual permit; hence the system will continue to function properly. While there are some differences in the County's permit application and OFP's conceptual permit application concerning modeling estimates of flow rates through OFP property, the differences are minor and are attributed to differences in modeling inputs. The County used more detailed modeling information. Any such differences are not significant. Differences in flow rates provided in the County's proposed permit and in OFP's conceptual permit do not render the permits as incompatible. If the County's permit were issued, any modeling undertaken in connection with a subsequent application by OFP for a construction permit would have to be updated to include the County's improvements to the system. This outcome is not a basis for denial of the County's permit. While the rate at which water will flow through the system will increase, no change in volume of water ultimately flowing through the drainage system is anticipated as a result of the County's proposed improvements. The increased lake stages which are anticipated to occur on OFP property as a result of the County's project will not cause adverse water quantity impacts to the receiving waters of Lake Hancock or adjacent lands. The project will not cause adverse flooding to on-site or off-site property. The project will not cause adverse impacts to existing surface water storage and conveyance capabilities. The project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Chapter 373.042, Florida Statutes. Water Quality Impacts No adverse impacts to water quality on OFP property are anticipated from the County's proposed drainage improvements. The project will not add any pollutant loading source to the drainage system and is not expected to cause any algae blooms or fish kills in OFP waters or cause any additional nutrient loading into OFP's surface water management systems. As reclaimed phosphate mine pits, the lakes on OFP's property are high in phosphates. Meanwhile, water quality in upstream in Millsite Lake and Eagle Lake is very good. Off-site flow of higher quality water flushing the OFP lakes will improve the water quality on the OFP site. The County's project will have no adverse impact on the quality of water in the downstream receiving of Lake Hancock (which currently has poor water quality due in large part to past phosphate mining). Upstream of OFP, the project will not cause any adverse water quality impacts and is anticipated to result in positive impacts by lessening the duration of any flooding event and thereby lessening septic tank inundation from flooding. This will have a beneficial impact on public health, safety, and welfare. Thus, there is a public benefit to be gained in having the County undertake the proposed drainage and flood control improvements now, rather than waiting for OFP to finalize its plat and construct its development project. The County's proposed improvements do not require any formal water quality treatment system. The improvements are to a conveyance system and no impervious surfaces or other facilities generating pollutant loading will be added. Upstream of OFP, the Eagle-Millsite-Hancock drainage system flows through natural lakes and wetlands systems that provide natural water quality treatment of the existing drainage basin. OFP expressed concern that the County's improvements to drainage through these areas (including the ditch maintenance already performed in 1998) will increase flow and reduce residence time, thereby reducing natural water quality treatment. But ditch maintenance does not require an ERP, and the County gave reasonable assurances that reduction in natural water quality treatment will not be significant, especially in view of the good quality of the water flowing through the system out of Eagle Lake and Millsite Lake. As a result, it is found that the County's proposed project will not adversely affect the quality of receiving waters such that any applicable quality standards will be violated. Indeed, OFP's expert consultant conceded in testimony at final hearing that OFP has no reason to be concerned about the quality of water at present. Rather, OFP's real concern is about water quality in the future. Essentially, OFP is asking SWFWMD to require the County to guarantee OFP that future development in the area will not lead to any water quality problems. Requiring such a guarantee as a condition to issuance of an ERP would go far beyond SWFWMD requirements and is never required of any applicant. Besides being speculative on the evidence in this case, future development in the area will be required to meet applicable SWFWMD water quality requirements. SWFWMD permitting required for such future development would be the proper forum for OFP to protect itself against possible future reduction in water quality (as well as possible future increase in water quantity). Environmental Impacts The drainage ditches to be improved by the County's project were originally constructed before 1984. These upland cut ditches were not constructed for the purpose of diverting natural stream flow, and are not known to provide significant habitat for any threatened or endangered species. The County provided reasonable assurance that the proposed project will not change the hydroperiod of a wetland or other surface water, so as to adversely affect wetland functions or other surface water functions. The functions of the wetlands and surface waters to be affected by the proposed project include conveyance, some water quality treatment, and possibly some wildlife movement or migration functions between the wetlands served by the ditches. Wetland impacts from the project consists of .63 acre of permanent impacts and .21 acre of temporary impacts, for a total of .84 acre of impact. The permanent impacts consist of the replacement of pipes with new structures in the ditches and the addition of rip rap in areas to prevent sedimentation and erosion. The proposed project's anticipated increase in the rate of flow is expected to lessen the duration of any flooding event at the upper end of the drainage system, and at the downstream end is expected to create a subsequent rise in some of the lakes and storage areas on the OFP property during certain rain events. The anticipated rise in some of the reclaimed lakes on OFP property is not anticipated to have any adverse impact on the functions that those surface waters provide to fish, wildlife or any threatened or endangered species. The reclaimed lakes subject to rise in water levels for certain rain events are steep-sided and do not have much littoral zone, and little, if any, loss of habitat will result. The County's application provides reasonable assurance that the anticipated stage increase in affected wetlands or surface waters will not adversely affect the functions provided by those wetlands or surface waters. The County provided reasonable assurance that the proposed project will not violate water quality standards in areas where water quality standards apply, in either the short- term or the long-term. Long-term effects were addressed in Finding 43-51, supra. Short-term water quality impacts anticipated during the construction of the proposed improvements will be addressed through the use of erosion and sediment controls. The proposed project also will not create any adverse secondary impacts to water resources. The project will not cause any adverse impacts to the bird rookery located to the north on OFP property. The project will not cause any adverse impacts to the bass in OFP's lakes, a concern expressed by OFP relatively recently. To the contrary, since the project will improve water quality in OFP's lakes, the impact on OFP's bass is expected to be positive. OFP raised the issue of a bald eagle nesting site located on its property. The evidence was that a pair of bald eagles has built a nest atop a Tampa Electric Company (TECO) power pole on the property in October of each year since 1996. Each year the pair (which is thought to be the same pair) has used a different TECO power pole. Most of the nests, including the one built in October 2000, have been on poles well south of any construction proposed under the County's ERP and clearly outside of the primary and secondary eagle management zones designated by the U.S. Fish and Wildlife Service. But one year, a nest was built on a pole farther north and possibly within the secondary eagle management zone. OFP presented testimony that U.S. Fish and Wildlife would require OFP to apply for an "incidental take" in order to build homes within the primary eagle protection zones around any of the four poles on which eagles have built nests since 1996; timing of construction of homes within the secondary protection zones may be affected. Even accepting OFP's testimony, there was no evidence as to how U.S. Fish and Wildlife would view construction of the County's proposed drainage improvements on OFP property within those zones. In addition, the evidence was that, in order to accomplish its DRI plans to build homes in the vicinity of the TECO power poles that have served as eagle nests in recent years, without having to apply for an "incidental take," OFP plans to place eagle poles (more suitable for eagle nests than power poles, which actually endanger the eagles) in another part of its property which is much more suitable habitat in order to encourage the eagles to build their nest there. The new location would put the County's proposed construction activity far outside the primary and secondary eagle management zones. Other Permitting Requirements The County's proposed project is capable, based on generally accepted scientific engineering and scientific principles, of being effectively performed and of functioning as proposed. The County has the financial, legal, and administrative capability of ensuring that the activity proposed to be undertaken can be done in accordance with the terms and conditions of the permit. No evidence was presented by Petitioner that the Project will cause adverse impacts to any work of the District established under Section 373.086, Florida Statutes. No evidence was presented by Petitioner that the project will not comply with any applicable special basin or geographic area criteria established under Chapter 40D-3, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order issuing Standard General Environmental Resource Permit No. 4419803.000. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2001. COPIES FURNISHED: Linda L. McKinley, Esquire Polk County Attorney's Office Post Office Box 9005, Drawer AT01 Bartow, Florida 33831-9005 Gregory R. Deal, Esquire 1525 South Florida Avenue, Suite 2 Lakeland, Florida 33803 Margaret M. Lytle, Esquire Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E. D. Sonny Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue There are two issues in these cases: (1) whether Tampa Bay Desal, LLC ("TBD") provided reasonable assurances that its permit application to discharge wastewater from a proposed seawater desalination plant, National Pollutant Discharge Elimination System ("NPDES") Permit Application No. FL0186813- 001-IWIS, meets all applicable state permitting standards for industrial wastewater facilities; and (2) whether Tampa Electric Company, Inc. (TEC) provided reasonable assurances that its proposed modification to an existing industrial wastewater facility permit, NPDES Permit Modification No. FL0000817-003-IWIS, meets all applicable state permitting standards.
Findings Of Fact Parties other than SOBAC Poseidon Resources, LLC wholly owns TBD as one of Poseidon Resources' subsidiaries. Poseidon Resources formed TBD, the successor to S&W Water, LLC, as a special purpose project company to properly staff and finance the desalination project. TBW entered into a 30-year purchase agreement with TBD (then known as S & W Water, LLC) in 1999 to build, own and operate the desalination facility. Poseidon Resources operates as a privately-held company and all stockholders are major corporations. Poseidon Resources opened for business in 1995 and has over $300 million in water processing assets under management. DEP is an agency of the State of Florida. The United States Environmental Protection Agency ("EPA") delegated its NPDES permitting program to the State of Florida and is run by DEP. TEC is an investor-owned electric utility serving Hillsborough, Polk, Pasco, and Pinellas Counties. TEC owns and operates the Big Bend generating station, an electric plant consisting of four coal-fired steam units having a combined capacity of approximately 1800 megawatts. SWFWMD is a water management district in the State of Florida. SWFWMD reviews and acts upon water use permit applications and protects and manages the water and water- related resources within its boundaries. TBW and all of its Member Governments are within the geographical and legal jurisdiction of SWFWMD. Pasco County is a political subdivision of the State of Florida, a member government of TBW, and is located within the jurisdiction of SWFWMD. Pasco County is a major source of the groundwater used by TBW. TBW is a regional public water supply authority. TBW is the sole and exclusive wholesale supplier of potable water for all its member governments of TBW, which are Hillsborough County, Pasco County, Pinellas County, the City of New Port Richey, the City of St. Petersburg, and the City of Tampa. TBW serves approximately 2 million customers. SOBAC SOBAC was incorporated as a Florida not-for-profit corporation in February 2000. The stated mission of SOBAC is to protect the environmental quality of the bays, canals, and waterways of the Tampa Bay area, and to ensure drinking water for SOBAC members in the Tampa Bay area. SOBAC was formed by a group of people residing primarily in the area of Apollo Beach. Apollo Beach is a waterfront residential community that was created by dredge and fill of wetlands, estuary, and bay bottom bordering the "Big Bend" area of Tampa Bay, where the community terminates in a "hammerhead" of fill over what was once a seagrass bed. Across the North Apollo Beach "Embayment," formed by the "hammerhead," is the discharge canal of TEC's Big Bend power plant. A corrugated metal barrier partially separates the embayment from the discharge canal. This discharge canal also will receive TBD's discharge after re-mixing with TEC's discharge. SOBAC initially was formed out of concern for the environment in the Big Bend area of Tampa Bay. However, there is no requirement that SOBAC members live in the Apollo Beach area, or even in the vicinity of Tampa Bay, and SOBAC's geographic area of concern has broadened somewhat beyond the Apollo Beach area. In order to become a member of SOBAC, one need only sign a card. Prospective members are asked to donate $5 on signing up. Most members donate $5 or more. However, the donation is not mandatory. There is no requirement that members attend any meetings, or participate in any SOBAC activities. Section 3.1 of SOBAC's Constitution and Corporate By-Laws makes "active" membership contingent on payment of "the prescribed [annual] dues." Section 3.2 of SOBAC's Constitution and Corporate By- Laws requires SOBAC to establish annual dues, but no annual dues have been paid because no annual dues structure has ever been established. As a result, no annual dues have been "prescribed," and "active" membership does not require payment of annual dues. SOBAC claims to have approximately 1,000 members. These include all those who have ever become members. Approximately 700 live in the Appollo Beach area; approximately 50-75 of these members form the "core" of active members. Approximately 50-100 members live outside the Tampa Bay area; some of these outsiders probably are among the approximately 100 who are members by virtue of SOBAC's reciprocity agreement with another association called "Friends of the River." SOBAC has never surveyed its membership to determine how its members actually use Tampa Bay. However, the evidence was sufficient to prove that a substantial number of its members, especially among those who reside in the Apollo Beach area, enjoy use of the waters and wetlands of the Big Bend area for recreational activities such as boating and fishing. For that reason, if the activities to be permitted by DEP in these proceedings were to cause environmental damage, a substantial number of SOBAC's members would be affected substantially and more than most residents of distant reaches of the Tampa Bay area. Background of Desalination Project In 1998, the predecessor agency to TBW (the West Coast Regional Water Supply Authority), the six Member Governments and SWFWMD entered into an agreement specifically addressing impacts to natural systems through the development of new, non- groundwater sources, and the reduction of permitted groundwater withdrawal capacity from TBW's eleven existing wellfields from the then permitted capacity of 192 million gallons per day (mgd) to 121 mgd by December 31, 2002 (the "Partnership Agreement"). Pursuant to the Partnership Agreement, the existing water use permits for TBW's 11 specified wellfields were consolidated into a single permit under which TBW is the sole permittee. Prior to execution of the Partnership Agreement, the existing permits for these 11 wellfields allowed for cumulative withdrawals totaling approximately 192 mgd. Upon execution of the Partnership Agreement, the consolidated permit immediately reduced allowed withdrawals to no more than 158 mgd and required that wellfield pumping from the 11 wellfields be further reduced to no more than 121 mgd by December 31, 2002, and then to no more than 90 mgd by December 31, 2007. These withdrawal reductions are necessary to reduce the adverse environmental impacts caused by excessive withdrawals from the 11 wellfields, the majority of which are located in Pasco County. In order to replace the reduction of groundwater withdrawals, TBW adopted a Master Water Plan that provides for the development of specified new, alternative sources of potable water. The seawater desalination facility ("Desal Facility") is one of the cornerstone components of the Master Water Plan. This Facility will furnish 25 mgd of new water resources for the Tampa Bay area and must be in service by December 31, 2002, in order to meet the potable water needs of the residents of the Tampa Bay area. In exchange for the groundwater withdrawal reductions, SWFWMD agreed to contribute up to $183 million towards the development of new water sources that are diverse, reliable and cost-effective. SWFWMD has agreed to co-fund up to 90 percent of the capital cost of the Desal Facility. To comply with the terms and conditions of water use permits it has received from SWFWMD for other water withdrawals in the region, TBW must increase the water sources from which it withdraws water for distribution to its Member Governments in a timely manner. The Desal Facility is the essential means by which these permitting requirements can be met. For the past two years, the Tampa Bay area has been experiencing historic low rainfall and drought conditions. The Desal Facility is supported not only by TBW and its Member Governments, but also by SWFWMD since it is a drought-proof source of supply which has the greatest ability of any new water supply source to allow TBW to meet its members' potable water supply needs while also reducing pumpage from the existing 11 wellfields. In addition to its being a drought-proof source of potable water supply, the Facility will also provide diversity and reliability for TBW's sources of supply, and is a source that is easily expandable to provide additional potable supply that may be necessary in the future. Prior to deciding to proceed with a desalination project, TBW conducted four separate studies to look at the potential individual and cumulative impacts of a desalination facility on Tampa Bay and the surrounding areas, and in particular to evaluate the changes in baywide salinity due to the desalination discharge alone and in combination with the river withdrawals occasioned by other projects. Commencing in 1997, TBW conducted a procurement process that culminated in the award in July 1999 of a contract to S & W Water, LLC, now known as Tampa Bay Desal, LLC, to design, build, own, operate, and eventually transfer to TBW a seawater desalination plant to provide potable water to Hillsborough, Pinellas, and Pasco Counties and to the Cities of Tampa and St. Petersburg for 30 years. TBD's Desal Facility is co-located with the Big Bend Power Station owned and operated by TEC on the northeast side of Hillsborough Bay, in Hillsborough County, Florida. By discharging the concentrate from the Desal Facility to the power plant cooling water prior to its discharge to the power plant discharge canal, environmental impacts from the concentrate are minimized, and disturbance of the discharge canal is avoided. The costs avoided by utilizing the existing intake and outflow from the TEC power plant are reflected in the lower cost of the water to Tampa Bay Water, and ultimately its Member Governments. TBW is contractually bound to TBD to purchase all of the potable water that is produced by the Desal Facility for distribution to its Member Governments and to purchase the entire Facility in the future. With the exception of the NPDES permit at issue, TBD has obtained all of the over 20 other permits which are required for the construction and operation of the desalination facility. TBD has already invested approximately $20 million in this project. The total estimated capital cost of the desalination facility is $110 million. TBD has obtained financing of $42 million and expects to acquire permanent financing in the month of October 2001. SWFWMD agreed to subsidize up to 90 percent of the capital cost of the desalination facility payable to TBW over the term of agreement with TBD. TBD is contractually bound to TBW to complete and fully operate the desalination facility by December 2002. TBD Desalination Process Overview of Process In the instant case, desalination is performed through reverse osmosis ("RO"), a mechanical process wherein pretreated water under very high pressure is pressed against a very fine membrane such that only pure water can pass through it. The vast majority of salt molecules and other substance are eliminated from the water. The RO process is not heat or chemical driven. No additional heat load is being added as a result of the desalination discharge, and the desalination plant will actually result in a reduced heat load to the bay. The desalination facility will withdraw approximately 44.5 mgd of raw water from Units 3 and 4 of TEC's Big Bend cooling water system, produce approximately 25 mgd of product water for transmission to the regional water supply system, and discharge approximately 19.5 mgd of clarified backwash and concentrate water equally into each of the power plant cooling water tunnels for dilution and release into the discharge canal. During abnormal power plant operations including times when Units 3 or 4 are not in operation and during the summer months when the normal supply water intake temperature exceeds the operating temperature range of the RO membranes, a portion of the source water will be withdrawn from an auxiliary supply water system. The auxiliary supply water system consists of a supply pump and pipeline that withdraws water from a location downstream of the fine-mesh screens for Units 3 and 4. The total combined bay withdrawal flow for the power plant and the desalination facility cannot exceed 1.40 billion gallons per day ("bgd"). This limitation ensures that entrainment does not exceed the levels previously permitted for the site, and a new entrainment study pursuant to Section 316(b) of the Clean Water Act is not required. Pretreatment Process The desalination intake water is pretreated in a two- stage gravity filtration process with chemical additives. During pretreatment, ferric sulfates will be added to the desalination intake water to coagulate and capture suspended solids, organic material, and metals that exist in the raw water supply. In this first stage of the pretreatment process, the intake water runs through an aerated course sand filter. Aeration enhances the coagulative process and assists in the capture of organics, suspended solids, and metals. Aeration also occurs in stage two, which uses a fine sand filter pretreatment process. The backwash water from stage two recirculates to the stage one treatment process. The pretreated waters exits through a five micron cartridge filtration prior to entering the RO process. The aerated pretreatment filter backwash water from the pretreatment stage one pretreatment will be sent to a discharge sump for initial settling and then to a clarifier and filter press to remove excess water. Approximately 14 wet tons a day which includes organics, suspended solids, and metals that are removed through the coagulative process and captured from the gravity filters are removed off-site to a landfill. The desal concentrate and clarified backwash water will be combined in a discharge sump or wet well prior to entering into a discharge line manifolded to equally distribute the concentrate discharge into all of the available cooling water outflow tunnels or conduits of the power plant discharge. Reverse Osmosis Membrane Treatment The RO desalination process consists of a two-stage pass of the pretreated water through the reverse osmosis membranes. The RO pumps will force the water through the RO membranes at pressures ranging from 600 to 1000 pounds per square inch (psi). As a result of the RO process, approximately 25 mgd of purified water, also known as permeate, will be produced for delivery to TBW. TBD anticipates cleaning its membranes twice per year, perhaps less, due to the high level of pretreatment. Periodic cleaning removes silt and scale from the membrane surface. Dilute solutions of citric acid, sodium hydroxide, sulfuric acid, sodium tripolyphosphate, or sodium dodecyclbenzene compromise the constituents of various cleaning solutions, with the actual cleaning solution used dependent upon the actual performance of the system once it is placed in operation. Once the cleaning cycle is complete, the spent cleaning solution will be purged from the feed tank, membrane vessels, and piping and diverted into a scavenger tank for off- site disposal. Clean product water (permeate) will be fed to the feed tank and pumped into the RO membrane vessels. This process will continue until the pH of the purge water meets the Class III marine water quality criteria. The membranes will be rinsed with brine concentrate and permeate, and the rinse water will be directed to the wet well for discharge, with the concentrate into the TEC cooling water stream. TBD determined the chemical characterization of the membrane cleaning solution discharge. Cleaning solutions are not discharged in detectable concentrations. As further assurance, the permit requires toxicity testing immediately after membrane cleaning. Dilution of Discharge Water Co-locating the desalination facility with TEC's Big Bend power station allows the desalination concentrate to be diluted with TEC's cooling water prior to discharge into Tampa Bay. The point of injection of the desalination discharge will be located approximately 72 feet upstream of the point of discharge to the discharge canal to ensure complete mixing of the desalination concentrate with TEC's cooling water. This provides reasonable assurance that the desalination discharge will be completely mixed within the cooling water conduits. If all four TEC units are in operation and TBD is producing 25 mgd of finished water, the approximate dilution ratio of the desalination concentrate with TEC cooling water is 70:1. Historical TEC data indicates that a dilution ration of greater than 20:1 will occur more than 99.6 percent of the time, and a dilution ration of greater than 28:1 will occur more than 95 percent of the time. The dilution limitations in the proposed permit are more stringent than those required in Rule 62-302.530(18). The permitted dilution ratio complies with Rule 62- 660.400(2)(d) because it takes into account the nature, volume, and frequency of the proposed discharge, including any possible synergistic effects with other pollutants which may be present in the receiving water body. Comparisons of the Antigua, Key West, and Cyprus facilities are not applicable because those desalination facilities lack the initial dilution that will exist at TEC's Big Bend site. The proposed permit requires a 20:1 minimum dilution ratio at any given time, which may occur for no more than 384 hours per calendar year, and with the further limitation that the discharge at the 20:1 minimum dilution ratio shall not exceed 384 hours in any given 60-day period. At all other times, a minimum dilution ratio of 28:1 must be maintained. To ensure proper dilution and system operation, computer instrumentation in the desal facility will interface with TEC to continuously monitor the operations of TEC's four cooling tower condenser units. If any of the pumps shut down, an alarm will sound at the desalination facility and the computer system will automatically shut down the concentrate discharge to that specific condenser unit discharge tunnel. Further, the desalination plant will employ approximately 12 employees, with a minimum of two employees on duty at all times. TEC Permit Modification Big Bend power station has four coal-fired steam electric generating units. The power station is cooled by water that is taken in from Tampa Bay through two intake structures which are located along TEC's intake canal. One intake structure feeds cooling water to electrical power units 1 and 2 and the other feeds units 3 and 4. After flowing through the condensers, the cooling flows are combined into four separate discharge tunnels which outfall into TEC's discharge canal. The intake structure for Units 3 and 4 is equipped with fine-mesh screens and an organismal collection and return system that has been approved for use by DEP. The purpose of TEC's permit modification is to alter the internal piping in the facility to accommodate the desalination plant at the Big Bend site. TEC's permit modification allows for placement of an intake pipe from TEC's cooling water pipes to the desalination plant and a return pipe downstream from the intake pipe for the return of the desalination concentrate to TEC's cooling water discharge tunnels prior to outfall in the discharge canal. TEC's permit modification also allows for the placement of an auxiliary intake line by TBD to take additional water from behind the intake of units 3 and 4 up to TEC's maximum permitted limit of 1.4 billion gallons a day. The TEC proposed permit is conditioned to require TEC to maintain the structural integrity of both the steel sheet pile wall on the discharge canal and the breakwater barrier North of the discharge canal. TEC's permit modification does not request any changes to the operations of the Big Bend Generating Station. SOBAC Issues and Concerns SOBAC raised numerous issues and concerns in its petitions in these cases and in the Pre-Hearing Stipulation. However, some issues were elimination by rulings adverse to SOBAC during prehearing proceedings and final hearing. Based on the evidence SOBAC sought to elicit at final hearing and issues raised in its Proposed Recommended Order, other, earlier SOBAC issues and concerns appear to have been dropped. Remaining are essentially the following: increased salinity due to TBD discharge; alleged decreased dissolved oxygen (DO) from higher salinity; impacts of higher salinity and alleged decreased DO on marine plants and animals; alleged release of metals from sediments due to higher salinity and alleged lower DO, and effects on marine plants and animals; alleged monitoring deficiencies; alleged failure to utilize available technologies to lower salinity and raise DO; alleged deficient financial assurances; and various alleged resulting DEP rule violations. Description of Tampa Bay: Physical Properties The portion of Tampa Bay and Hillsborough Bay near the Big Bend facility is classified a Class III water body. Tampa Bay is a naturally drowned river valley, meaning that a deep channel exists as a result of natural forces. However, the channel has been deepened to 45 feet or greater to allow large ships to navigate the bay. This deepening of the channel increases the water flow of the head of the bay with the open gulf waters and allows this residual circulation to move more new water from the open Gulf of Mexico up into the bay. Ordinarily, circulation moves salt water up Tampa Bay and spreads it out onto the flanks of the bay where it then mixes with the freshwater. To complete this circulation, the water then flows back out towards the mouth of the bay, primarily along its flanks and shallower parts in the upper part of the water column. The water in Tampa Bay tends to flow faster in its deeper parts, both coming in and going out, and relatively slower in the shallow areas. The majority of flow of freshwater inflow occurs at the bay's flanks as can be seen very clearly in the salinity distributions. Mixing and Stratification Since the development of Tampa Bay from the 1880 condition to the 1972 and 1985 conditions, there is more mixing and exchange of water. Due to shoreline fills for development, such as Apollo Beach, there is less water that now comes in the bay than in the predevelopment condition. Tampa Bay is a fairly well mixed system from top to bottom. This is because the action of the tides basically acts like a big mix master. The bay is fairly shallow, less than four meters in depth on average. The tidal velocities can be as strong as two knots or about a meter per second. When the strong velocity pushes through shallow water, there is extensive overturning, where the bottom water is churned to the top and gets mixed very efficiently. That is very well seen in the observations during dry periods. Over 100 points in Tampa Bay were measured for temperature and salinity top, middle and bottom, and showed that they were very uniform throughout the bay. During periods of large volumes of freshwater input into Tampa Bay, freshwater is pumping into the bay faster than the tidal mixing can mix it from top to bottom. Therefore, in parts of Tampa Bay significant stratification is seen during many times in the wet season. During those times when rainfall is not as prevalent, tidal mixing once again dominates and the bay returns to a more well mixed system. The average tidal fluctuation for Tampa Bay is a range of two to three feet. Salinity As the tide in Tampa Bay comes in, it brings saltier water from the mouth of the bay toward the head of the bay, causing salinities to rise. As the tide recedes, bringing out fresher water from farther up the bay, salinities decrease. Over an individual tidal cycle, particularly during the wet season, a four or five part per thousand ("ppt") change in salinity will occur between a rising tide and a falling tide. During the dry season, tidal flushing is not as significant to salinity levels because not much difference exists in salinity from the head of the bay to the mouth of the bay. Even during the dry season, there is a one to two ppt change over a six to twelve-hour period in any given day. During the dry periods in 1990, salinities elevated up to about 33 ppt, with very little stratification. During the rainy periods, in June and July, salinities dropped rather drastically. In some areas, salinity dropped as low as to 20 to 22 ppt. However, in spite of these drastic seasonal differences, significant variation in salinity occurs as a result of tidal exchange. The Big Bend area is split by the dividing line between Hillsborough Bay and what has been classified Middle Tampa Bay. The salinity for Hillsborough Bay from 1974 through June 2001 at the surface ranges from 0.4 ppt to 38.2 ppt. The middle portion of the same water column contained a range from 2.5 ppt to 39.2 ppt, and the bottom portion showed a range from 3.9 ppt to 37.2 ppt. The average salinities during this time frame were as follows: top 24.2 ppt, middle 24.3 ppt and bottom 25.3 ppt. In the portion of Tampa Bay called Middle Tampa Bay, the surface level salinity ranged from 6.8 ppt to 38.2 ppt. At middle depth, salinities ranged from 7.4 ppt to 38.8 ppt. The bottom level salinities ranged from 11.9 ppt to 39.6 ppt. This is a large range of salinities. Tampa Bay near the Big Bend Area In the area near the Big Bend facility, the Mote Marine Laboratory survey data reflects that the salinity during May and June 2000 reached 33.4 ppt. Further, Mote Marine Laboratory data showed that the North Apollo Embayment area salinities were well mixed vertically throughout the system. The total volume of water exchanged into the North Apollo Embayment and associated canals during a mean tide is approximately 35 percent of the total volume of all water contained in that area. This tidal exchange occurs twice per day. The double diffusion process does not create high salinity in the bottom of the water column in the North Apollo Embayment. The double diffusion process, without any external influence, would lead to both surface and bottom layers of the water column reaching salinity equilibrium. Further, the turbulent mixing that occurs due to tidal processes and wind- induced mixing dominates over the double diffusion process. The Mote Marine Laboratory study conducted between May and early June 2000 did not detect any significant salinity stratification in the area near the Big Bend facility. Vertical stratification of salinity does occur but typically only during the periods of significant freshwater inflow and not in extreme drought or dry conditions. None of the Mote Marine Laboratory data detected any pockets of high salinity water or significant density stratification in the North Apollo Embayment. Estuarine Characteristics Tampa Bay is an estuary. Estuaries are semi-enclosed bodies of saltwater that receive freshwater runoff from drainage or riverine inflow, which measurably dilutes the salinity levels in the estuary. As a result, salinity levels in estuaries typically are highly variable, ranging from 0 ppt where rivers flow into estuaries, to as high as 40 ppt under conditions of low freshwater input or at estuarine mouths where they connect to the sea. There are naturally occurring dissolved oxygen levels below 4.0 mg/l in parts of Tampa Bay, including at Hillsborough County Environmental Protection Commission ("EPC") monitoring stations 9, 80, and 81, which are the closest stations to the proposed discharge. Dissolved oxygen in the bay decreases at night because photosynthesis ceases and respiration exceeds production. Other environmental parameters are also highly variable in estuaries. Therefore, the organisms that inhabit estuaries have adapted to tolerate these highly variable conditions. Estuarine organisms have adaptive means for tolerating changing salinity levels, either by conforming their internal salinity levels to the ambient salinity levels, or by actively regulating their internal salinity levels by intake or excretion of salt. Organisms that are adapted to tolerate a wide range of salinities within the estuary are termed euryhaline organisms. Essentially all of the common organisms in estuaries, including the Tampa Bay estuary, are euryhaline organisms, and therefore are capable of tolerating and living in a wide range of salinities and salinity changes that occur due to tidal, meteorological, and other natural forces in the estuarine environment. Extensive baseline biological studies performed on Tampa Bay reveal that the most common species in the Tampa Bay estuary tolerate salinity levels ranging from 5 ppt to 40 ppt. Seagrasses Five species of seagrass inhabit Tampa Bay. Seagrasses are photosynthetic underwater flowering plants that are typically limited in occurrence and distribution by the water clarity. This limits the depth at which seagrasses can grow. In Tampa Bay, seagrasses are limited to the fringes of the Bay, and are largely limited to depths of approximately three feet, although they can live in depths of up to six feet in clearer parts of the Bay. Seagrasses are very sensitive to increases in nutrients, like nitrogen and phosphorus. These nutrients encourage algae growth, resulting in competitive stress in seagrasses. Due to poor water quality caused by sewage discharge, dredging and filling, and other activities in the Bay, seagrass distribution in Tampa Bay decreased from an historic coverage of approximately 80,000 acres in 1950 to approximately 20,000 acres by 1982. Improvements in water quality, largely due to sewage treatment improvements, have allowed seagrasses to naturally recolonize to approximately 27,000 acres coverage, as of 1994. Wave energy affects seagrass distribution. Seagrasses cannot colonize and survive in areas subject to significant wave energy. For example, the portion of Tampa Bay dredged and filled to create the Apollo Beach "hammerhead" area was once comprised of a broad shallow-water shelf that diminished wave energy, allowing dense seagrass flats to cover the shelf area. Destruction of the broad shallow-water shelf with fill to create the Apollo Beach hammerhead has converted the area to a high wave energy system that is unsuitable for seagrass colonization and growth. Consequently, the only seagrasses inhabiting the Big Bend area are found approximately one kilometer north of the Big Bend power plant, in an area known as "The Kitchen," and approximately one kilometer south of the Apollo Beach hammerhead area. Additionally, there are ephemeral patches of seagrass inhabiting some limited areas of the North Apollo Embayment. Seagrasses are adapted to tolerate a wide range of salinities. They have specialized cells that enable them to deal with salt stress and with broad ranges of and fluctuations in salinity. These adaptations enable them to survive and thrive in estuarine environments. Of the seagrass species that live in Tampa Bay, one species, Ruppia maritima (widgeon grass), occurs in salinity ranges from zero to 40 ppt. Manatee grass, Syringodium filiforme, is most productive in salinities between 5 ppt and 45 ppt. The other three species, Halodule wrightii (shoal grass), Halophila engelmannii (star grass), and Thalassia testudinum (turtle grass), tolerate salinity ranges from approximately 5 ppt to 60 ppt. Seagrasses better tolerate higher salinity levels than lower salinity levels. Lower salinity levels are usually indicative of increased stream and land freshwater runoff, which usually is accompanied by increased turbidity and lower water clarity. Four of the five seagrass species that inhabit Tampa Bay typically reproduce asexually by producing rhizomes, rather than by flowering and producing seeds. It is not completely clear why seagrasses in Tampa Bay reproduce asexually rather than by flowering and seed production. However, recent research indicates that climatic temperature is the controlling factor for flower and seed production. In South Florida, where the climate is warmer, seagrasses reproduce by flowering and seed production. In Tampa Bay, the lower winter temperatures appear to be the limiting factor with respect to successful flower and seed production in seagrasses. Recent studies by the University of South Florida ("USF") marine laboratory indicate that naturally occurring fungal diseases may also limit successful flowering and seed production in seagrasses in Tampa Bay. Since most seagrass species that live in Tampa Bay tolerate and thrive in salinities of up to 60 ppt, the higher salinity levels in the estuary do not appear to adversely affect the ability of seagrasses to reproduce. In fact, the lower salinity levels, below 5 ppt, stress seagrasses and are more likely to adversely affect reproduction than do higher salinity levels. Mangroves Three major species of mangrove inhabit the Tampa Bay area: the red mangrove, black mangrove, and white mangrove. Mangroves inhabit the intertidal area, so they are subjected to daily tidal flooding and drying. Consequently, they must tolerate a wide range of variability in salinity levels and in water availability. Most mangroves tolerate soil salinity levels up to 60 ppt, close to twice the salinity of Tampa Bay. Mangrove mortality due to salinity does not occur until soil levels approach and exceed 70 ppt salinity. Mangroves are also adaptable to, and inhabit, freshwater environments. Phytoplankton and Zooplankton Plankton are life stages or forms of larger organisms, or organisms that have no ability for major locomotion, so they spend their entire life spans floating and drifting with the currents. Plankton are extremely productive in that they reproduce in very large numbers within very short life spans. Holoplankton are planktonic organisms that spend their entire lives in planktonic form. Examples include diatoms, which are a type of phytoplankton, and copepods, which are a type of zooplankton. Meroplankton are "temporary" plankton that drift with the currents in juvenile or larval stages, then either settle out of the water column and metamorphose into an attached form (such as barnacles) or metamorphose into mobile life forms (such as crabs, shrimp, and fish species). Phytoplankton are planktonic plant species and life forms. Zooplankton are planktonic animal species and life forms. Zooplankton feed on phytoplankton. There are approximately 300 species of phytoplankton, and numerous species and forms of zooplankton, found in Tampa Bay. Most phytoplanktonic and zooplanktonic species inhabiting Tampa Bay are euryhaline species capable of tolerating the wide range of salinity levels and abrupt salinity changes that occur naturally in the estuarine system. Most phytoplanktonic and zooplanktonic species and life forms in Tampa Bay tolerate salinity levels ranging from zero to 40 ppt. They appear to be more tolerant of the higher end than the lower end of this salinity range. Manatee The manatee is the only endangered or threatened species identified by the Florida Natural Areas Inventory as inhabiting the area where the desalination plant is proposed to be located. Manatees congregate at the Big Bend Power Station during colder months because they are attracted to the power plant's warmer water discharge. Manatees are considered to be estuarine species, but they have very broad salinity tolerance ranges. They migrate into and out of freshwater springs, through estuaries, into the Gulf of Mexico, and down to the Ten Thousand Islands, where hypersaline conditions frequently exist. Manatees routinely expose themselves to and tolerate salinities ranging from zero to more than 40 ppt. Fish The fish populations in Tampa Bay are comprised of a large number of marine euryhaline species. Due to their ability to osmoregulate their internal salinity levels, these fish species can inhabit salinity ranges from 5 ppt to as high as 40 ppt. Extremely extensive monitoring and sampling programs are currently being conducted in Tampa Bay and specifically in the vicinity of the Big Bend Power Station. The Hillsborough County EPC, SWFWMD, TBW, the United States Geological Survey ("USGS"), the Florida Marine Research Institute, USF, and Mote Marine Laboratory conduct separate biological monitoring programs that sample and monitor numerous biological parameters, including invertebrate infaunal and epifaunal species composition, abundance, and distribution; zooplankton and phytoplankton species composition, abundance, and distribution; emergent and submerged vegetation species composition, abundance, and distribution; and fish species composition, abundance, and distribution. These monitoring programs, which collect and analyze biological data from many areas in the Tampa Bay estuarine system, extensively monitor numerous biological parameters in the Big Bend area. Testing and Modeling Pilot Plant Although DEP's rules do not require the use of a pilot plant to demonstrate reasonable assurances, TBD installed a desalination pilot plant at the Big Bend site in November 1999. The pilot plant matched the hydraulics and configuration of the full-scale facility on a 1/1000 scale. The pilot plant used water from the Big Bend power plant discharge as its source water. The purpose of the pilot plant was to confirm design requirements for the desalination facility and to provide samples of intake water, filtered water, pretreated water, concentrate, and finished water to use for chemical characterization and analysis. Using a pilot plant is superior to using data from engineering projections or data from a different desalination facility because the pilot plant provides data specific to the Big Bend site. Data from the pilot plant were used to establish various effluent and other limits in the permit. Chemical Characterization Intake water, filtered water, pretreated water, concentrate, and finished water from the pilot plant were analyzed for over 350 parameters chosen by DEP to determine chemical characterizations and water quality. The pilot plant operation provides extensive chemical characterization of intake and discharge water composition and mass loading. This information was key in providing accurate information on the chemical composition and mass loading of the desalination discharge concentrate. With this accurate information on the components in the discharge water, DEP was provided more than sufficient reasonable assurance on the potential effect of the chemical components of the discharge. TBD tested the pilot plant discharge water for copper, nickel, other heavy metals, and those chemical constituents specified on the DEP chemical characterization form. The chemical characterization tested for concentrations of constituents based on a 12.8 to 1 dilution ratio, and even at that dilution ratio, did not exceed any of the state water quality parameters. However, to provide additional assurance that there will not be an exceedance of state water quality standards, the permit requires a minimum 20 to 1 dilution ratio. Dissolved Oxygen Saturation Testing Temperature and salinity affect the saturation point of dissolved oxygen ("DO") which is lowest when temperature and salinity are highest. DO saturation charts, which are typically used to determine DO saturation points, are not applicable because those charts do not contain the saturation point of DO at a temperature of 109 degrees Fahrenheit and a salinity of 79 ppt, which represents the worst case conditions for the proposed desalination facility. Bench-scale testing was performed on the undiluted desalination discharge from the pilot plant by heating discharge concentrate samples to 109 degrees Fahrenheit and aerating the samples until the DO stabilized and reached saturation point. The pilot plant bench-scale testing determined that the saturation point of DO in the worst case desalination concentrate using a temperature of 109 degrees Fahrenheit and salinity of 79 ppt was 5.7 mg/l. Toxicity Testing TBD conducted acute toxicity testing using a worst case scenario assuming a diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. Acute toxicity testing evidenced no mortalities, showing that the proposed discharge will not be a source of acute toxicity. TBD conducted chronic toxicity testing on raw concentrate from the pilot plant using a worst case scenario diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. The No Observed Effect Concentration (NOEC) for raw concentrate was determined to be 100 percent and the NOEC for diluted effluent was determined to be greater than 100 percent. The evidence did not explain these concepts, but it was clear from the tests that the proposed discharge will not be a source of chronic toxicity. TBD conducted its acute and chronic toxicity testing using protocols reviewed and approved by DEP. TBD's toxicity testing was also consistent with accepted EPA standards. Assessment of Potential Environmental Impacts TBD prepared an Assessment of Potential Environmental Impacts and Appendices ("Assessment") to analyze the potential biological impacts of the desalination plant discharge into the Tampa Bay estuary. The Assessment examined numerous physical parameters to determine the baseline environmental conditions in the portion of Tampa Bay proximate to the proposed desalination plant site. Among the physical parameters examined in determining the baseline environmental conditions were: salinity; sediment size and composition; metal content in sediments; and numerous water quality parameters such as transparency, biochemical oxygen demand, pesticides, dissolved metals, and pH. Consistency with SWIM Plan As part of the permitting process, TBD was required to demonstrate consistency of the proposed desalination discharge with the SWFWMD's Surface Water Improvement and Management (SWIM) plan, pursuant to Rule 62-4.242. TBD submitted an extensive SWIM consistency analysis, which is sufficient to meet the consistency requirement. Water Quality Based Effluent Limitation Level II Study TBD performed a Water Quality Based Effluent Limitation (WQBEL) Level II study pursuant to Rule Chapter 62- 650 for the purpose of determining the effect of the desalination plant discharge on salinity levels in the vicinity of the desalination plant discharge. TBD had the Danish Hydrologic Institute ("DHI") use the data collected through the WQBEL Level II study in its near-field model of the Big Bend area. See Findings 105-117, infra. DEP also used the data and the DHI model results to establish the salinity and chloride effluent limitations in the permit. The USF Far-Field Model The far-field model was prepared utilizing the Princeton model code. The Princeton model is well recognized and is generally accepted in the scientific community. The goals of the TBD far-field model performed through USF by Dr. Luther and his team were to evaluate the change in bay-wide salinity due to the desalination plant discharge, both alone and in combination with changes in salinity due to enhanced surface water system withdrawals under new consumptive water use permits issued to TBW by SWFWMD to provide other, additional sources of needed potable water supply. The primary goal was to provide DEP with the best science possible of the potential real effects of this desalination discharge into Tampa Bay. The modeling system of Tampa Bay utilized in this analysis was developed beginning in 1989. Dr. Luther and his team have continued to make refinements to the model over the last 12 years. Dr. Luther took the modeling system he had developed over the years for Tampa Bay and did three primary model scenarios. The baseline case reproduced the observed conditions during the 1990 and 1991 years--a very dry period in 1990 and a fairly wet period for 1991--as accurately as possible with all the boundary conditions estimated from observations. This was to capture an entire range of conditions in Tampa Bay. The baseline was then compared with validation data and other observations to ensure it was approximating reality. The second simulated scenario included the same effects as the baseline with the added effect of the desalination intake and discharge at the Big Bend facility. The third case approximated cumulative effects from the TBW enhanced surface water system river withdrawals according to the proposed permit withdrawal schedules. For each test case, it was assumed that only two of the four cooling units at the TEC Big Bend plant were in operation for an entire two-year period, a worst-case scenario expected to occur less than four percent of the time in any given year. The model included data on water levels, temperature, and salinity throughout Tampa Bay. In addition, it takes into account wind blowing across the surface of Tampa Bay, rainfall, freshwater inflow from rivers, and other surface water and groundwater sources. The model was calibrated and validated against actual data to verify simulation of reality as closely as possible. The model was calibrated and validated utilizing Hillsborough County EPC and Tampa Oceanographic Project ("TOP") salinity data. Physical Oceanographic Real Time System ("PORTS") and TOP data on current flow velocity and water levels were utilized to calibrate and validate water levels and current. The acoustic doppler current profilers used in the model study are able to measure the speed at which the water is traveling and the direction at various levels above the bottom within the water column. The TBD far-field model very accurately reproduces the observed tidal residual velocities observed with the acoustic doppler current profilers. The far-field model reflects any stratification that would occur during the model simulations. The far-field model simulates recirculation that occurs between the discharge and intake water. Recirculation is small due to the model's use of the actual bathymetry of Tampa Bay. There are significant shoals and other features that separate the water from the discharge and the intake canal that preclude significant recirculation most of the time. After submitting the far-field model report to DEP, further study was performed on the far-field model that calculated residence time for Tampa Bay. One study dealt with "residence" or "flushing" time. The concept of "residence time" is not well-defined; put another way, there are many different accepted ways of defining it. It may be defined in a simplified manner as the time it takes a patch of dye to flush out of the bay. However, for purposes of the studies performed on the far-field model, theoretical "particles" in model grids were tracked, and "residence time" was defined as the time it would take for the number of particles initially in a grid cell to decrease to 34 percent of the initial number. Using this approach and definition, residence time in the vicinity of the Big Bend facility on the south side where the discharge canal is located was less than 30 days. Immediately offshore of the area of the discharge, the residence time reduced to less than 15 days. The study indicated that the area of the Big Bend facility has a relatively low residence time. In the model's baseline run (for the desalination plant impacts only), maximum differences in salinity occurred during the month of April 1991. Throughout the two-year time period, the maximum concentration of salinities did not increase from this point, and in fact decreased. The maximum average value for salinity difference is 1.3 ppt at the grid cell located directly at the mouth of the TEC Big Bend discharge canal. More than two grid boxes away in any direction and the value falls to less than 0.5 ppt increase in salinity. The maximum salinity of any given day for the far- field model was in the range of 2.1 to 2.2 ppt, which compares favorably with the DHI near-field model which showed an increase of 2.5 ppt. The salinity changes caused by the cumulative effects scenario are smaller than the natural variability during the wetter months in Hillsborough Bay in cells immediately adjacent to the concentrate discharge. Increases in salinity will occur in the vicinity of the discharge canal but will be very localized and small relative to the natural variability in salinity observed in Tampa Bay. At a distance of more than a few hundred meters from the mouth of the discharge canal, it would be difficult (if not impossible) to determine statistically that there would be any increase in salinity from the desalination concentrate discharge. Over the two years modeled, there is no trend of increasing salinity. No long-term accumulation of salt is evidenced within the model. Further, no physical mechanism exists within the real world that would allow for such a long- term accumulation of salinity in Tampa Bay. Dr. Blumberg's independent work verified the conclusions in the far-field model constructed by USF. Dr. Blumberg's estimated flushing times are consistent with those found in the far-field model. DHI Near-Field Model The TBD near-field model was prepared by DHI. DHI prepared a three-dimensional near-field model to describe the potential salinity impacts from the discharge of the proposed desalination plant. The DHI model is a state-of-the-art model whose physics are well documented. By model standards, the DHI near-field model is a high resolution model. The DHI model essentially "nests" within TBD's far-field model. The near-field area includes those areas that would be directly influenced by the combined power and desalination discharges, the North Apollo Embayment and the residential canal system adjacent to the discharge canal. The near-field model was designed to determine whether or not the desalination plant would cause continuous increases in salinity and to predict any increase in salinity in the North Apollo Embayment and the associated canal system. In addition, DHI evaluated the potential for saline recirculation between the discharge and the intake via short circuiting due to overtopping of the existing break water. In order to construct the near-field model, existing data on bathymetry, wind sources, meteorology and other parameters were examined and analyzed. In addition, the information from an intensive data collection effort by Mote Marine Laboratories on current velocities, temperatures, and salinities was incorporated into the model. TBD conducted bathymetric surveys in the residential canal areas, the North Apollo Embayment, and the area between the discharge canal and the intake canal. The model has a vertical structure of six grids and reflects vertical stratification that would occur in the system being modeled. The vertical grids in the model can detect a thermal plume one meter in depth (the size of the thermal plume from TEC's discharge). Information about the TEC thermal plume was incorporated into the model and utilized to calibrate the model's predictive capabilities. The model took into account interactions between the temperature plume and the salinity plume. The model predictions matched the measured temperature plume created by the TEC discharges quite well. The near-field model conservatively assumed a scenario in which only the two TEC units with the smallest total through-flow of 691.2 million gallons a day cooling water were active. DHI then assumed production of a maximum 29 mgd in product water. A salinity level of 32.3 ppt at the intake was utilized in the simulation. The model assumed a conservative wind condition which results in less mixing and dispersion of the plume. Further, wind direction tended to be from the southwest or west during the simulation, which tends to push the plume against the TEC break water which tends to reinforce recirculation. SOBAC witness Dr. Parsons agreed that these simulations for April and May 2000 constituted extreme conditions. DHI ran its model for a total time period of six weeks. The "warm up" for the simulation took place from April 15 to May 7, followed by the "calibration" simulation from May 8 to May 22. An additional validation sequence was run from May 25 to June 8. The production run was defined as the three weeks from May 8 to May 29, 2000. The intensity of the calculations performed in the near-field model due to its high spacial resolution and numeric restrictions make it computationally demanding. The calibration runs took approximately a week to 10 days to run on a state-of-the-art computer. From a computational standpoint, it is not practical to run the near-field model for a two-year time period. The model shows good agreement between its water levels and current velocity to observed data. The model reflects the recirculation of the discharge water that would occur in the system. The maximum salinity for the extreme case scenario in the near-field model is an increase in salinity of 2.5 ppt. With three condensers running, under the modeling scenario comparing the base condition to the desal discharge, there is a maximum difference of only 2.0 ppt. Further, there is no indication of any continuous build up of salinity in the near- field area due to the desalination plant discharge. DHI performed many sensitivity runs on the model, including one which examined rainfall conditions. The results of a two-inch rainfall analysis show that rainfall profoundly freshens the water in the near-field area. Since the modeling was done in a time period of extreme drought, with no freshwater inputs, the ambient or background salinity trended up over the time frame of May through June. As with any estuary, if freshwater inflow is removed, the estuary will get saltier until freshening occurs. Even with the model simulation period extended an additional 10 days beyond that reflected in TBD Ex. 1-O, the model results did not show any increase of salinity differences caused by the desal facility above 2.5 ppt. Based on data from field collections, the operation of the desal plant under worst case conditions did not exceed the assimilative capacity of the near-field environment. A 10 percent salinity change (3.23 ppt) was not reached in any grid cell. The Blumberg Study The "Environmental Impact Assessment for a Seawater Desalination Facility Proposed for Co-Location with the Tampa Electric Company Big Bend Power Generation Facility Located on Tampa Bay, Florida" authored by Norman Blake and Alan F. Blumberg ("Blumberg Study") is a hydrodynamic model study combined with an analysis of potential biological effects. The Blumberg Study was performed at the request of and presented to the Board of County Commissioners of Hillsborough County, Florida. Dr. Blumberg's model used 1998 and 1999 as its baseline, which consisted of an extremely wet year followed by an extremely dry year. The model assumed a scenario of two cooling units in operation pumping 656 mgd of discharge flow. The results of the Blumberg Study are very similar to the results of TBD's far-field model. In addition, the model ran for a 9-year period without any sign of ongoing build-up of salinity. After the two-year model run, the second year ran for an additional 7 simulated years for total model simulation period of 9 years. The Blumberg Study found salinity only increased by 1.4 ppt in the North Apollo Beach Embayment. In fact, the Blumberg Study showed no salinity build-up after the second year of the 7-year portion of the model simulation. The Blumberg Study found that the flushing time for the area near the Big Bend facility ranges from 4 to 10 days. The Blumberg Study applied a formula to predict potential DO saturation level changes. The analysis concluded a small change to DO saturation assuming full saturation on average of 7 mg/l. The Blumberg Study predicted that the desalination discharge would not lower actual DO levels below 5 mg/l. The Blumberg Study concluded that the marine ecology will not be affected by the desalination facility operation. Older Two-Dimensional Models of Tampa Bay Significant strides have been made in hydrodynamic modeling over the last 10 years, with the standard changing from two-dimensional models to three-dimensional models. Three-dimensional models provide more complete results than two-dimensional models. In the late 1970's through the late 1980's, modeling was constrained by the computing limitations of the time and could not examine the difference in water layers in a bay and potentials for currents going in different directions or speeds in different layers of the bay, as now done by state-of-the-art three-dimensional models. A two-dimensional model cannot accurately represent the tidal residual circulation in an estuary such as Tampa Bay, because it omits some of the critical physical forces that drive this type of flow. As the acoustic doppler current profiler showed, water flows in the top of the water column in one direction and flows in the bottom of the water column in a different direction. A two-dimensional model would average these flows over the entire vertical water column. In doing so, it would show much slower residual flow (and, therefore, longer residence time and a longer time to flush the system). SOBAC offered the testimony of Dr. Carl Goodwin, a civil engineer with the USGS. Dr. Goodwin provided testimony on two-dimensional model studies he did for the USGS in the late 1980's to assess the effects of dredging the shipping channel in Tampa Bay. Dr. Goodwin's studies, contained in SOBAC Exs. 69 and 70, suggested the existence of "gyres" in Tampa Bay. But no "gyres" have been observed, and it now appears that these gyres actually do not exist but are two- dimensional modeling artifacts, as shown by state-of-the-art three-dimensional modeling of Tampa Bay. In an earlier version of Dr. Luther's Tampa Bay model, an experiment was performed running the model in a vertically average mode to mimic the two-dimensional model. In this mode, the model was able to reproduce the "gyres" that Dr. Goodwin observed in his two- dimensional model. When the physical equations that related to pressure forces (baroclines) were reactivated in the three- dimensional model, the "gyres" disappeared. In addition, this experiment showed that the two- dimensional model simulation showed residence times an order of magnitude longer as compared to the full three-dimensional simulation. This means that residence time would be 10 times longer in the two-dimensional model than in the three- dimensional model, which takes into account baroclinic forces. Subsequent to the publication of his modeling studies (SOBAC Exs. 69 and 70), Dr. Goodwin found that it would take approximately 110 days for water to travel from the mouth of the Hillsborough Bay to the mouth of Tampa Bay in 1985. This calculation by Dr. Goodwin was not subjected to peer review or the USGS process. However, dividing the 110-day time period with correction factor of 10 discussed above, Dr. Goodwin's corrected estimate would predict an 11-day period for transport of water from Hillsborough Bay to the mouth of Tampa Bay--similar to the Blumberg Study and far-field model results. Opinions of Other SOBAC Experts Besides Dr. Goodwin, SOBAC also elicited some general opinions regarding the combined thermal and salinity plume from Dr. Mike Champ, called as an expert in the areas of environmental biology and chemistry, and from Dr. Wayne Isphording, called as an expert in sedimentology and geochemistry. In part, Dr. Champ based his opinion on a misunderstanding that Tampa Bay is not well-mixed or well- circulated at the location of the Big Bend power plant. In this respect, Dr. Champ's testimony was contrary to all the evidence. Even the "gyres" suggested by Dr. Goodwin's two- dimensional model studies would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. To the extent that the opinions of Dr. Champ and Dr. Isphording differed from the modeling results, they are rejected as being far less persuasive than the expert opinions of the modelers called by TBD, who spent far more time and effort studying the issue. Compliance with Dissolved Oxygen Standard Oxygen is a gas which can dissolve in water to some degree. There are two measurements of DO in water: saturation point and actual level. The saturation point of DO in water equates to the maximum amount of DO that water will hold. The actual level of DO is a measurement of the oxygen in the water. Since the saturation point is the maximum amount of DO that water will hold in equilibrium, the actual level of DO in water is typically equal to or lower than the saturation point. Desalination will affect the saturation point of DO to the extent that it increases salinity. Increased salinity decreases the saturation point of DO because it lowers the potential for water to hold oxygen. But desalination would not affect the actual level of DO in the water if the saturation point remains above the actual level of DO in the water. TBD determined that in the worst case scenario using undiluted desalination discharge, the lowest possible saturation point of DO would be 5.7 mg/l. If the actual level of DO is above 5.7 mg/l, desalination may lower that actual level of DO to 5.7 mg/l. If the actual level of DO is below 5.7 mg/l, desalination will not lower the DO. Since TBD will aerate the water in the pretreatment process, if the actual level of DO is below 5.7 mg/l, the actual level of DO in the discharge water will be increased. The permit DEP proposes to issue to TBD requires that DO at the point of discharge from the RO plant meet the following: that instantaneous DO readings not depress the intake DO when intake DO is at or below 4.0 mg/l, and that they be greater than or equal to 4.0 mg/l when intake DO is greater than 4.0 mg/l; that 24-hour average readings not depress the 24-hour average intake DO when the 24-hour average intake DO is at or below 5.0 mg/l, and that they be greater than or equal to 5.0 mg/l when the 24-hour average intake DO is greater than 5.0 mg/l. The evidentiary basis for SOBAC's argument that the proposed permit's DO limitation allowed violations of state water quality standards was the testimony of Dr. Champ. But it was evident from his testimony that Dr. Champ was not even aware of the effluent limitations until they were pointed out to him at final hearing. Nonetheless, and although Dr. Champ barely had time to read the DO limitations, Dr. Champ immediately opined that the proposed DO limitations virtually invited water quality violations. He dismissed the permit language out-of-hand as being "loosey-goosey," "fuzzy-wuzzy," and "weasel-like." Actually, there is no conflict between the proposed permit's DO limitations and the water quality standards and water quality criteria in DEP's rules. Other witnesses, particularly Tim Parker of DEP, properly compared the language in the permit with DEP's rules containing water quality standards and water quality criteria. Mr. Parker pointed out that the rules must be read in harmony with each other. Rule 62-302.530(31) contains DO water quality criteria and requires that the "actual DO shall not average less than 5.0 in a 24 hour period and shall never be less than 4.0." Rule 62-302.300(15), a water quality standard, states: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having a water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. Mr. Parker testified that the "natural conditions" referred to in Rule 62-302.300(15) are those found in the intake water to the desalination facility. TBD will not violate either the water quality criteria or the water quality standard for DO. If the actual level of DO in the intake water is less than 5.0 mg/l, TBD will not decrease the actual level of DO in the water below 5.0 mg/l because the actual level of DO is below the worst case saturation point of 5.7 mg/l. The water quality standard in Rule 62-302.300(15) does not prohibit discharges having DO levels below 4.0 mg/l when that discharge does not cause or contribute to existing DO violations. TBD will not cause or contribute to existing DO violations because if the level of DO in the intake water which is the natural condition is less than 4.0 mg/l, TBD will not decrease the actual level of DO in the water. To the contrary, the desalination process will increase the actual level of DO whenever it is below 5.0 mg/l. TBD has provided reasonable assurance that the proposed desalination discharge will not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15) because the desalination process will not decrease the actual level of DO below 5.0 mg/l. SOBAC argued that DO levels will drop between intake and discharge as a result of desalination. Some of this argument was based on the testimony of Dr. Mike Champ, one of SOBAC's expert witnesses. But Dr. Champ's testimony on this point (and several others) is rejected as being far less persuasive than the testimony of the expert witnesses for TBD and the other parties. See Finding 196, infra. SOBAC's argument apparently also was based on a fundamental misapprehension of the results of the Blumberg Study, which SOBAC cited as additional support for its argument that desalination will decrease DO at the discharge point. The Blumberg Study only spoke to desalination's effect on DO saturation concentrations, not to its effect on actual DO levels. (In addition, contrary to SOBAC's assertions, the Blumberg Study did not model DO saturation concentrations but only inferred them.) pH The pilot plant measured and analyzed the potential for pH changes in the desalination process and demonstrated that the desalination process reduced pH by no more than a tenth of a pH unit. pH ranges in natural seawater from top to bottom change over one full pH unit; a tenth of a pH unit change would be well within the natural variation of the system. TBD has provided reasonable assurances that the proposed desalination discharge will not violate Rule 62- 302.530(52)(c), which requires that pH shall not vary more than one unit above or below natural background of coastal waters, provided that the pH is not lowered to less than 6.5 units or raised above 8.5 units. Limitations for pH in the permit ensure compliance with Rule 62-302.530(52)(c) at the point of discharge to waters of the state. Temperature Nothing in the desalination process adds heat to the discharged water. To the contrary, the desalination process may dissipate heat due to the interface of the intake water with the air surface in the pretreatment process. Further, the effect of removing 25 mgd of heated cooling water as desal product water reduces the heat load coming out of the TEC plant cooling water discharge by that same 25 mgd. Temperature readings taken as part of the pilot plant study confirm a slight decrease in temperature across the desalination process. Metals The pretreatment process employed by TBD will result in a reduction in metals in the treated water. Ferric sulfate is added to the intake water upstream of the sand filters in the pretreatment process to precipitate metals into solid material which can be captured by the sand filters. Adding ferric sulfate in the pretreatment process results in a net reduction in the total mass load of metals in the discharge water. Initial calculations in the permit application that 104 pounds of ferric sulfate were being discharged in the desalination concentrate were based on using 20 mg/l of ferric sulfate and a conservative estimate of 95 percent settling of solids, with 5 percent of the ferric sulfate being discharged in the desalination concentrate. Further testing through the pilot plant revealed that coagulation optimizes at 9 to 14 mg/l of ferric sulfate with 97.5 percent of the solids settling, resulting in only 2.5 percent (52 pounds) of the ferric sulfate being discharged per day. The desal facility discharge of iron is minute in comparison to naturally occurring metals within the surface water flowing into Tampa Bay from the Hillsborough and Alafia Rivers. Increases in iron due to ferric sulfate addition are predicted to result in a diluted discharge in which the iron level is still below Class III marine surface water limitation of 0.30 mg/l. Even SOBAC witness Dr. Isphording confirmed that there are no concerns caused by metals that TBD is adding during the process. Discharge Effect on Metal Absorption/Desorption Dr. Isphording limited his concerns to the reaction of higher salinity, DO, and redox to the sediments already contained within the area beyond the discharge point. Dr. Isphording admits that he cannot quantify what the potential release of heavy metals would be due to these factors. Absorption of metals occurs when an organic or clay particle attracts to its surface a metal. Biota do not obtain metals if the metal is held in sand or silt size particles. Biota, be they plant or animal, in most cases obtain the metals they receive from tiny particles that are suspended in the water called microparticulate material. Microparticulate material is generally referred to as colloidal phase. Typically, this phase is on the order of a tenth of a micron in size. Biota obtain metals only if they are present at clay- size particles. Only 10 percent of the quantity of metals that are theoretically available to the biota in a given environment is actually absorbed in tissues. Salinity Has Little Effect on Metals Salinity does not exert a controlling influence on absorption/desorption reactions except at very low salinities. If the salinity is zero, which is essentially a pure freshwater environment, and the salinity level then rises 3 ppt, there would be profound changes in the metal loads, for example, where rivers meet estuaries or seawater. When salinity levels in the water are on the order of 25 ppt, small salinity perturbations such as 2.5 ppt will have a very small effect on absorption/desorption reactions. In fact, the influence can be either positive or negative, but in general they are going to be quite small. Potential releases or gains of metal from salinity changes of 2.5 ppt, at the area of the discharge canal, would be difficult to predict, and it is uncertain whether the change would be positive or negative. pH Will Have Virtually No Effect on Metals Although SOBAC witness Dr. Isphording knew of no change to pH caused by the desalination process, he testified to the alleged effect of lowered pH on the metal in the sediments and water column. Only large pH differences can have a significant influence on absorption or desorption of metals. Any effect on absorption from a decrease in pH on the order of a tenth of a pH unit will be hidden within the natural variations of the estuarine system. See Finding 140, supra. Effect of Lower Oxygen Levels on Metals Redox is basically an oxidation-reduction phenomenon. In order for the low levels of oxygen to have a reducing effect resulting in a release of metals from sediments, virtually all of the oxygen would have to be removed from the water. Basically, the environment would have to reach anoxic conditions. Even then, some metals such as copper would remain within the sediments. In an oxygen-buffered system, redox perturbations will not significantly or measurably mobilize metals. Sediments can be oxidizing in the upper part and then generally become more reducing at depth. The area near the desal discharge does not have organic-rich deep sediment. Proposed Discharge Effect on Bioavailability of Metals The proposed desalination plant's discharge will not increase the bioavailability on metals above that of natural variations and any changes would be hard to discern or measure. Nor will there be any appreciable accumulation of metals in sediments in the receiving water resulting from the proposed desalination discharge. DEP has not established any sediment quality standard and monitoring of sediments is not a NPDES requirement. The desalination plant does not result in violations of Class III marine surface water criteria and standards. No Synergistic Effects Caused by Discharge There are no synergistic effects from the proposed discharge wherein the combination of two elements such as temperature and salinity together would create a new effect. Instead, pH, redox, salinity, and temperature may have small, immeasurable effects that may offset each other. No Adverse Impacts to Biota Comprehensive species lists of phytoplankton, zooplankton, benthic macroinvertebrates, fish, aquatic flora (including seagrasses and mangrove species), and threatened or endangered species inhabiting the area were prepared based on extensive review of applicable scientific literature on Tampa Bay. The salinity tolerance ranges of these species were determined through extensive review of information on salinity ranges associated with species capture, laboratory studies, review of studies addressing species types and salinity tolerances in hypersaline estuaries, and species salinity tolerances determined for other desalination projects. When background salinity is above 10 ppt, changes in salinity of a few ppt have no effect on most organisms. Lower salinities are more detrimental than high salinities to most marine organisms, as long as the upper limit does not exceed a value of approximately 40 ppt salinity. Most planktonic species and life forms can tolerate salinities of up to 40 ppt. Mangrove and seagrass species living in the area can tolerate salinity levels as high as 60 ppt. Benthic macroinvertebrates in the area routinely experience, tolerate and survive in salinity levels ranging from approximately 6 ppt to over 39 ppt under natural environmental conditions. Fish species in the area routinely experience and tolerate salinity levels as high as 39 to 40 ppt under natural environmental conditions. Estuaries serve as fish nurseries because fish species lay their eggs in estuaries, and the larval and juvenile life stages live and mature in estuaries. Due to extreme range of conditions that naturally occur in estuaries, fish reproductive strategies have adapted to enable fish eggs and larval and juvenile life stages to tolerate the wide range of natural conditions, including ranges in salinity levels, that are endemic to estuaries. Egg, larval, and juvenile fish stages may be better able to tolerate extreme range of salinities than adults life stages. A 2.5 ppt increase in salinity and the permitted maximum increase of 10 percent above the intake chloride level is within the range of tolerance and variability that seagrasses, mangrove species, benthic macroinvertebrates, biota, fishes, manatees, zooplanktonic and phytoplanktonic species, and other organisms and life forms living in Tampa Bay routinely encounter and tolerate in the natural environment. A 2.5 ppt increase in salinity with the maximum permitted salinity discharge limit of 35.8 ppt of salinity and the permitted maximum increase of 10 percent above the intake chloride level will not adversely affect the survival or propagation of seagrasses, mangroves, benthic macroinvertebrates, biota, zooplankton, phytoplankton, fish, fish eggs, or juvenile life stages of fish species, or other organisms or life forms in Tampa Bay, and specifically the portion of Tampa Bay in the vicinity of the desalination plant discharge. The Shannon-Weiner Index, which is a biological integrity index codified at Rule 62-302.530(11), requires that the index for benthic macroinvertebrates not be reduced to less than 75 percent of established background levels. Since there will be no adverse impacts to benthic macroinvertebrates due to the desalination discharge and since the level of salinity increases anticipated will tend to benefit benthic macroinvertebrates population, TBD has met the criterion in Rule 62-302.530(11). The Mote Marine Laboratory data showed that Tampa Bay experienced a 2.0 ppt change in salinity over the course of one month. No fish kill or observable die-offs of species were observed or reported from this natural occurrence of elevated salinity. The desalination discharge will (1) not adversely affect the conservation of fish and wildlife, including endangered species, or their habitats, (2) not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge, (3) not violate any Class III marine water quality standards, and (4) maintain water quality for the propagation or wildlife, fish, and other aquatic life. The desalination discharge meets the antidegradation standards and policy set forth in Rules 62-4.242 and 62- 302.300. Discharge Disposal Options Analyzed As part of the permitting process, TBD demonstrated that the use of land application of the discharge, other discharge locations, or reuse of the discharge was not economically and technologically reasonable, pursuant to Rule 62-4.242. TBD submitted a sufficient analysis of these options as part of its Antidegradation Analysis. (TBD Ex. 1G; TBD Ex. 200, Fact Sheet, p. 16). Further Protection in the Permit The permit review of the desalination permit application is one of the most thorough ever conducted by DEP. The proposed permit has conditions which create and provide a wide margin of environmental protection. The permit sets effluent limitations of various constituents which are reasonably expected to be in the desal facility discharge and provides for monitoring programs to ensure compliance with those effluent limitations. The monitoring requirements of the proposed permit exceed the monitoring requirement imposed on other facilities in the Tampa Bay area. Effluent Limitations DEP established effluent limitations using the Class III marine state water quality standards, data provided from the pilot plant regarding the chemical characterization, the modeling conducted by DHI and the University of South Florida, and the water quality data collection by Mote Marine Laboratory in connection with the establishment of the WQBEL. The effluent limitations contained in the permit are consistent with DEP rules. The proposed permit restricts TBD to the lesser of either the chloride limit of 10 percent above intake or the salinity limit of 35.8 ppt. There is no state water quality standard for salinity. The permit limit for chlorides complies with Rule 62- 302.530(18). The permit's additional requirement of a minimum dilution ratio has the effect of limiting chlorides to 7 percent above intake for 384 hours per year and 5 percent above intake for the remainder of the year and thus provides extraordinary assurance that the state water quality standard for chlorides will be met. Dr. Champ was SOBAC's primary witness in support of its argument that the proposed permit allows a discharge with excessive salinity. But it was apparent from his testimony that Dr. Champ misinterpreted the permit limitations for salinity. See Finding 196, infra. Dr. Champ conceded that the chloride limit of 10 percent above intake was appropriate but focused on the 35.8 ppt maximum, as if it overrode the chloride limitation. As found, the opposite is true. TBD will be limited to 10 percent above intake for chlorides even if the result is salinity far less than the daily maximum of 35.8 ppt. Dr. Champ also had concerns about comparing the discharge to intake chloride levels as not being representative of "normal background." He argued (as does SOBAC) for comparing discharge to chloride levels somewhere else in Middle Tampa Bay, nearby but far enough away to insure no influence from the discharge. But the modeling evidence provided reasonable assurance that there will not be a great deal of recirculation of discharge to intake and that the recirculation expected will not cause salinity to build-up continuously over time. The modeling evidence is accepted as far more persuasive than Dr. Champ's testimony. See Finding 196, infra. The only metals for which effluent limitations were established in the permit are copper, nickel, and iron because these were the only metals determined to be close to the state water quality standard levels by the pilot plant studies. The actual levels of such metals in the desalination discharge will be less than those in the pilot plant testing because the dilution ratio (12.8 to 1) used in the pilot testing is much higher than the minimum dilution ratio required by the permit (20 to 1). The permit effluent limitations for copper, nickel, and iron are based on, and comply with, DEP Rules 62- 302.500(2)(d) and 62-302.530(24), (39) and (45). The permit effluent limitations for Gross Alpha are based on and comply with the requirements in Rule 62- 302.530(58). Biological treatment of the desalination plant discharge concentrate is not required because it consists of seawater. Monitoring for Effluent Limitations DEP is able to separately determine TEC's compliance with its permit from TBD's compliance with the effluent limitations in the proposed desalination permit because of how the facility is designed and the monitoring is constructed. Monitoring requirements in the proposed permit were determined with reference to the probability of desal facility discharge exceeding specific water quality standards. DEP rules do not require monitoring for each and every constituent detected above background concentrations, only those which would probably exceed state water quality standards. The permit requires monitoring of effluent limitations at the intake to and discharge from the desalination facility and the calculation of the diluted effluent levels in the co-mingled discharge water. In order to calculate the effluent components in the diluted discharge water, continuous monitoring is performed on the TEC cooling water discharge rate of flow. Parameters of DO, conductivity, salinity, chlorides, copper, iron, nickel, radium, gross alpha, and effluent toxicity are measured at both intake and discharge pursuant to proposed permit. Monitoring of Intake Monitoring of the intake will be located, after interception off TEC Units 3 and 4, prior to entering the desalination plant. Using a sampling location of the intake to the desalination facility prior to filtering or chemical addition for background samples is consistent with the definition of "background" in DEP Rule 62-302.200(3). EPC Stations 11, 80, 81, 13, and 14 are not proper locations for background samples because salinity varies with tides and depth and those stations are too distant from the actual intake point. EPC station 9 is not a good location because it is closer to the discharge than the permit sample point. Monitoring of Discharge Monitoring of the discharge will take place in the wet well prior to discharge into TEC's cooling water discharge tunnels. This monitoring location is in compliance with Rule 62-620.620(2)(i) which provides for monitoring of effluent limitations in internal waste streams. Monitoring of the desal facility discharge concentrate in each of the four cooling water discharge tunnels is impractical due to the high volume of dilution and addition of four potential discharge locations. Once the desal facility concentrate is diluted by the TEC cooling water discharge, it is much more difficult to obtain accurate water quality testing for constituents at such minute levels. Monitoring of the Combined Discharge Concentrations Calculations determine the mixing ratios of the desalination concentrate with TEC's cooling water. Using the flow data from TEC, the calculations will accurately determine the water quality of the co-mingled discharge water. Compliance with Permit Effluent Limitations The proposed permit requires TBD to monitor constituents for which there are effluent limitations on either a daily, weekly or monthly basis, depending on the constituent. The frequency of monitoring for each constituent is based on comparing the expected levels of the constituent to the water quality standard and analyzing the probability of the desal facility discharge exceeding that standard. The monitoring provides additional assurances beyond the pilot plant studies, testing and modeling that no water quality standard will be violated. Continuous monitoring is not necessary to successfully monitor discharges. Monthly measurements are sufficient to determine compliance even for a daily permit level because the chemical characterization studies provide reasonable assurances that the desalination concentrate will not exceed the effluent limitations. Monthly monitoring provides further checks and balances to assure that the desalination discharge is in conformance with the effluent limitations and DEP rules. The EPA only requires that monitoring occur at least once a year. Conductivity provides a direct correlation to salinity and chlorides. Measuring conductivity provides salinity and chloride levels by basis of calculations and is typically used as a surrogate for monitoring chloride and salinity continuously. Salinity and chloride cannot themselves be measured continuously because they are measured by lab tests. The permit requires conductivity to be monitored continuously, not because DEP believed the desalination discharge would be near the chloride limitation, but rather to be extremely conservative. The permit conditions treat an exceedance of salinity or chlorides based on conductivity readings to be a violation of the permit effluent limitations for salinity and chlorides. TBD provided reasonable assurance to DEP that the proposed desalination discharge would not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15). The permit condition requiring monitoring of DO provides verification that desal facility discharge will meet the DO water quality standards. Even SOBAC's witness Dr. Champ admitted that a continuous measurement for DO is not as valuable as random weekly samples. External Monitoring Programs The proposed permit requires TBD to develop and submit to DEP a Biological Monitoring Program to monitor seagrasses, benthic macroninvertebrates and fish populations to be consistent with existing Tampa Bay monitoring programs. This program will provide an effective means of monitoring the potential impacts of the desalination discharge. The proposed permit also requires TBD to implement a Water Quality Monitoring Program for three monitoring stations located proximal to the intake, the discharge and the North Apollo Beach Embayment which will monitor conductivity, salinity, DO and temperature continuously. These monitoring programs will provide additional ambient data to DEP. If the data indicate an exceedance or reasonable potential for an exceedance of water quality standards, DEP may reopen the permit in accordance with the reopener clause contained in the permit. These monitoring programs go beyond the requirements in DEP rules. Additionally, DEP does independent monitoring of NPDES discharges without notice and on a purposely unpredictable basis. Proof of Financial Responsibility Rule 62-620.301(6) addresses when DEP may require a permit applicant to submit proof of financial responsibility to guarantee compliance with Chapter 403, Florida Statutes. TBD's compliance history was taken into consideration during the permitting process. Adequate financial assurance were provided in the permit application. (TBD Ex. 1I). Further, the permit conditions added by the settlement agreement (TBD Ex. 470) provide for additional financial assurance beyond those that can be required by the NPDES program and DEP rules. Additional Comment on SOBAC's Evidence As already indicated, SOBAC elicited the testimony of several expert witnesses at final hearing to support its contentions. But none of SOBAC's experts spent a great deal of time studying TBD's desal project, especially compared to witnesses for the other parties. Mostly, SOBAC experts expressed general scientific principles that were not directly tied to specifics of the desal project or were very general expressions of concern. Often, SOBAC's experts were not familiar with all the efforts of experts offered by the other parties to address those very concerns. Except for Dr. Champ, no SOBAC expert opined that the proposed permits would result in violations of DEP statutes and rules. Some SOBAC experts expressed opinions that only would be relevant if there were insufficient assurances in proposed permits that DEP statutes and rules would not be violated. Statistical evidence presented was not particularly relevant. Dr. Goodwin As previously mentioned, Dr. Carl Goodwin was willing to provide testimony on work he did for the USGS, but he gave no expert opinions on the permits which are the subject of these proceedings. As also previously discussed, his two- dimensional model studies were constrained by computational limitations. Even so, his studies indicated that flushing in Tampa Bay was becoming more rapid in recent years. In addition, even if the "gyres" suggested by his two-dimensional studies actually existed, they would tend to promote mixing in Tampa Bay in area of the Big Bend power plant. Dr. Champ Dr. Champ's first opinion was that 35.8 ppt is too high a salinity limit and would result in "oceanic" conditions. He attempted to compare this result to results of diversion of substantial amounts of freshwater inputs to the Black Sea for agricultural purposes--a totally different situation not suitable for comparison to Tampa Bay. Initially, Dr. Champ suggested a limitation of a 10 percent increase above "background" or "ambient" conditions; it was apparent that initially Dr. Champ was not cognizant of the 10 percent over intake chloride limitation in the proposed permit. When he was made aware of the chloride limit, he misinterpreted the two limits, saying that TBD would not be limited to the lower of the two. When it was suggested that he might have misinterpreted the two salinity limits, Dr. Champ testified that chlorides should be compared to a "natural" or "environmental" control site somewhere nearby but outside the influence of the combined TEC/TBD discharge; he said it was a "farce" to compare chlorides to a control site "inside the plant." In so doing, he seemed not to recognize the purpose of the comparison made in the proposed permit--to isolate and identify the impacts of TBD's desal process. In addition, dismissing without much consideration the contrary results of extensive and sophisticated modeling, Dr. Champ opined off- handedly that DO would decrease due to higher salinity that would recirculate and build-up over time. In part, Dr. Champ based this opinion on his misunderstanding that Tampa Bay is not well-mixed or well-circulated at the location of the Big Bend power plant. This was contrary to all the evidence; even if the "gyres" predicted by Dr. Goodwin's two-dimensional model existed, they would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. Dr. Champ next misinterpreted the DO limits in the proposed permit. See Finding 133, supra. Dr. Champ then predicted a decrease in species diversity as a result of higher salinity and lower DO. (To the contrary, salinity increases in the amounts predicted by the far greater weight of the evidence probably would result in somewhat of an increase in species diversity.) Ultimately, Dr. Champ testified that consequences to marine organisms would be dire, even if salinity increased only by 2.5 ppt, because a "salinity barrier" would form across Middle Tampa Bay in contrast to more gradual natural changes in salinity. The far greater weight of the evidence was to the contrary. Dr. Champ made several suggestions to avoid the calamitous results he predicted: require use of a cooling tower to reduce the temperature of the combined TEC/TBD discharge; collect the desal brine concentrate and barge it to the Gulf of Mexico; require intake and discharge pipes extending into the shipping channel in Middle Tampa Bay. But Dr. Champ did not study or give a great deal of thought to implementation of these suggestions. Besides, the other parties proved that these measures were not needed for reasonable assurances. In an attempt to buttress his opinion testimony, Dr. Champ also testified (along with SOBAC's President, B.J. Lower) that the TEC intake canal is virtually devoid of life and that biodiversity in the discharge canal is very low. This testimony was conclusively refuted by the rebuttal testimony of Charles Courtney, who made a site visit after SOBAC's testimony and described in detail a significant number of healthy species in the intake canal, including oyster communities, xanthid crabs, porcellanid crabs, snook, anemones, bivalves, polychaete, and mangroves with seedlings. Of the one and one- half pounds of oysters that Mr. Courtney sampled, he estimated that approximately fifty percent of those oysters were living, which represents a very healthy community. Mr. Courtney further noted that some of the crabs were carrying eggs, which indicates an active life cycle for those species. As to the TEC permit modification, Dr. Champ testified that it was “in-house stuff” which would not affect the environment outside the TEC plant. No other SOBAC witness addressed the TEC permit modification. Dr. Isphording SOBAC called Dr. Wayne Isphording as an expert in sedimentology and geochemistry. Dr. Isphording expressed no concern that the desal process would add metals to Tampa Bay. Essentially, he gave opinion testimony concerning general principles of sedimentology and geochemistry. He testified that heavy metals bound in sediments are released naturally with increases in salinity, but that salinity levels would have to be extreme to result in the release of abnormal quantities of such metals. He admitted that he had performed no studies of sediments in Tampa Bay and declined to offer specific opinions that metals in fact would be released as a result of predicted salinity increases. Dr. Isphording admitted that he knew of no condition in the proposed Desal Facility permit which would cause or allow a violation of state water quality standards. He was aware of no statute or rule requiring more monitoring and testing than is required in the proposed permit. Dr. Parsons SOBAC offered the testimony of Dr. Arthur Rost Parsons, an assistant professor of oceanography at the Naval Postgraduate School, in an attempt to raise questions regarding the near-field and far-field modeling which were provided by TBD to DEP during the course of the permitting process. However, not only had Dr. Parsons not done any modeling in Tampa Bay himself, he was not provided numerous reports and clarifications relating to the studies he was called to critique. He only reviewed an interim report dated November 1, 2000, regarding the near-field model. Dr. Parsons testified that the DHI model used for the near-field study was an excellent shallow water model. He found nothing scientifically wrong with it and testified that the "physics and the model itself is . . . well–documented." Dr. Parsons also did not contradict the results of the DHI model. Instead, he noted that the modeling task was difficult and complex, he described some of the model's limitations, and he testified to things that could have been done to increase his confidence in the model results. One of Dr. Parson's suggestions was to run the model longer. But the evidence was that, due to the model's complexity and high computational demands, it would have been extremely expensive to run the model for longer periods of time. Another of Dr. Parson's suggestions was to use salinity data would be to use the information that the model itself generated with regard to salinity distributions instead of a homogeneous set of salinity data. Dr. Parsons was concerned that use of homogeneous salinity data would not reflect the effect of "double diffusion" of heat and salinity, which would result in sinking of the combined heat. But engineer Andrew Driscoll testified in rebuttal that the effects of "double diffusion" would cease once equilibrium was reached and would not result in a hypersaline plum sinking to the bottom. In addition, he testified that turbulent mixing from tide and wind would dominate over the effect of "double diffusion" at the molecular level so as to thoroughly mix the water, especially in the shallow North Apollo Beach Embayment. Dr. Parsons also suggested that the model be run for rainy season conditions to see if the effects of vertical stratification would increase. But even if vertical stratification increased as a result of rain, salinity also would be expected to decrease. The scenario modeled was "worst case." Dr. Parsons also suggested the use of a range of temperatures for the combined heat/salinity plume instead of an average temperature. However, he conceded that it was not inappropriate to use average temperature. Instead, he would have liked to have seen the model run for a range of temperatures to see if the model was sensitive to temperature differences so as to increase his confidence in the results. Dr. Parson's testimony focused on the near-field model. His only comment on the far-field model was that he thought it should have used the out-puts from the near-field model (as the near-field used the outputs). Scott Herber SOBAC offered no direct testimony on the impact of the Desal Facility discharge on seagrasses in Tampa Bay. The testimony of Steve Herber, a doctoral student at the Florida Institute of Technology, related to the vulnerability of seagrasses, in general, to changes in salinity. However, Mr. Herber had no specific knowledge of the seagrasses present in Tampa Bay and had not performed or reviewed any scientific studies upon which his opinion could be based. He reached no conclusions about the specific permits at issue in this proceeding, nor about the effect of the Desal Facility on seagrasses in Tampa Bay. In contrast to Mr. Herber, the testimony of TBD's expert, Robin Lewis, and SWFWMD's expert, Dr. David Tomasko, provided detailed information about the seagrasses located in Tampa Bay. Both have studied seagrasses in Tampa Bay for many years and have been involved in mapping seagrass distribution in a variety of bays and estuaries along the west coast of Florida. Dr. Tomasko criticized witnesses for SOBAC who attempted to draw conclusions about Tampa Bay based on studies of other bays and estuaries because each bay has unique characteristics that cannot be extrapolated from studies of other bays. Dr. Tomasko and Lewis testified that seagrasses in Tampa Bay are becoming more abundant, that dissolved oxygen levels are increasing, and that water clarity in Tampa Bay is also improving. Dr. Mishra Dr. Satya Mishra was called by SOBAC as an expert in statistics. He is not an expert in the discrete field of environmental statistics. He has never been involved in the development of a biological monitoring program and could not provide an opinion regarding what would be an adequate sample size for this permit. He essentially expressed the general opinions that for purposes of predictive statistical analysis: random sampling is preferred; statistical reliability increases with the number of samples; and 95 percent reliability is acceptable. Dr. Mishra performed no statistical analysis in this case and could not conclude that the sampling provided in the proposed permit would not be random. Ron Chandler Ron Chandler, a marketing representative for Yellow Springs Instrument Corporation (YSI), simply testified for SOBAC regarding the availability of certain types of continuous monitoring devices. He did not offer any opinions regarding whether or not reasonable assurance required continuous monitoring of any specific parameter or any monitoring different from or in addition to what is proposed in TBD's proposed permit. John Yoho SOBAC called John Yoho as a financial and insurance expert to criticize the terms of an agreement by TBD, TBW, and DEP to settle Hillsborough County's request for an administrative hearing (DOAH Case No. 01-1950). This agreement is contained in TBD Ex. 470. But Yoho admitted that he had no knowledge regarding what is required to obtain an NPDES permit in terms of financial assurances. He also indicated that none of his testimony should be understood as relating in any way to financial assurances required for such a permit to be issued. Alleged Improper Purpose The evidence did not prove that SOBAC participated in DOAH Case No. 01-2720 for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of TEC's permit modification applications. To the contrary, the evidence was that SOBAC participated in this proceeding in an attempt to raise justifiable issues arising from the peculiarities of the relationship of TEC's permit modification application to TBD's permit application. Although SOBAC suffered adverse legal rulings that prevented it from pursuing many of the issues it sought to have adjudicated on TEC's permit modification application, it continued to pursue issues as to the TBD permit application which, if successful, could require action to be taken on property controlled by TEC and, arguably, could require further modification of TEC's permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: (1) issuing the proposed permit number FL0186813-001-IWIS, as set forth in TBD Ex. 203 with the addition of the two permit conditions specified in TBD Ex. 470; (2) issuing proposed permit modification number FL0000817-003-IWIS, as set forth in TBD Ex. 225; and (3) denying TEC's request for attorney's fees and costs from SOBAC under Section 120.595(1). Jurisdiction is reserved to enter an order on TBD's Motion for Sanctions filed on August 13, 2001, regarding SOBAC expert Ralph Huddleston. DONE AND ENTERED this 17th day of October, 2001, in Tallahassee, Leon County, Florida. __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 William S. Bilenky, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604 Ralf G. Brookes, Esquire Morgan & Hendrick 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904-9604 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761-3930 Lawrence N. Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Joseph D. Richards, Esquire Pasco County Attorney's Office 7530 Little Road, Suite 340 New Port Richey, Florida 34654-5598 Cathy M. Sellers, Esquire Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 118 North Gadsden Street Tallahassee, Florida 32301-1508 Linda Loomis Shelley, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact 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
Findings Of Fact South of the intersection of Blue Angel Parkway and Gulf Beach Highway in southwest Escambia County lies the wooded, 69-acre tract, designated "Site F," onto which ECUA proposes to dispose up to three million gallons of wastewater a day. Petitioner Westerman operates a marina nearby. The individual intervenors own houses in the vicinity as, apparently, do other members of the intervening association. A state agency with wide ranging environmental responsibilities, DER permits construction of wastewater treatment facilities in conformity with its rules. Sewage disposal is one of several utility services ECUA provides residents of Escambia County. A Trip to the Beach Under orders from DER and the Environmental Protection Agency (EPA) to cease discharging directly into Bayou Chico ("a very impacted body of water ... [with] very difficult problems" T. 101), ECUA proposes to build a pumping facility and install enough 24-inch pipe to enable it to send effluent from its wastewater treatment plant in Warrington to Site F, for "rapid rate" land application. Upgraded since DER and EPA forbade direct discharges into Bayou Chico, the Warrington plant now employs advanced treatment techniques to remove most phosphorous and nitrogen from its effluent. Nevertheless, in order to mollify regulators, ECUA has plans to ship the effluent through some seven miles of pipe to Site F. In the opinion of its executive director, ECUA is "an easy target . . . . Whether it's practical or fair is really not the question." Id. He feels, "cost is not a factor" (T. 102) that the regulatory authorities have taken into account. Sandy Soils Site F straddles a coastal ridge, vegetated dunes that separate Garcon Swamp from Big Lagoon. Elevations vary from 29 feet above mean sea level at the crest of the ridge to nine feet above mean sea level in the swale that traverses the property. Highly permeable surficial sand extends to depths ranging between 20 and 35 feet below grade. Under the surficial sand, a layer of silty sand, extending down 55 to 60 feet, overlies another layer of very clean sand, much denser than the surficial sand. At depths of 90 to 110 feet, a clay aquiclude undergirds these sandy strata. Using field and laboratory test results, experts put the average hydraulic conductivity of the surficial sands at 35 feet per day, of the silty middle sand layer at 10 to 15 feet per day, and of the clean but dense sands on top of the clay at 5 to 10 feet per day. In addition to laboratory results, two pump tests support these conclusions. Results of two other pump tests indicating hydraulic conductivity of 4.7 and 5.0 feet per day were dismissed as unreliable. Sand caving in compromised at least one of these tests. As far as the record reveals, no bench-scale or pilot-scale hydraulic testing took place. According to DER's Mr. Reinning, there was "more soil testing on this site than [he had] seen on any other permit event." T.II. 217. Although the soils on the site are "relatively uniform," (T.II. 212) no layer of sand is perfectly uniform. Mr. Jacobs, one of ECUA's consultants, testified that a boring on one of the proposed pond sites revealed a one-foot layer of sand and organics with a vertical hydraulic conductivity of one foot per day. T.I. 245. Perhaps Mr. Jacobs was referring to boring B-2, which, according to the log, reflects a two-foot interval of peat and decaying wood, at a depth of slightly more than 13 feet. ECUA's Exhibit 2. No other boring gave evidence of this layer. The nearest bore hole to B-2 was more than 200 feet away. Expert testimony that the borings did not indicate an "extensive pocket," and gave no reason to fear a "per(c)hed water table," (T.II. 214) was not controverted. Construction Plans ECUA proposes to construct 16 percolation ponds or cells on Site F. Seven pairs of cells would be terraced on a north-south axis, with an eighth, noncontiguous pair at an angle in the southwestern portion of the property. Cell bottoms, at elevations ranging between 16 and 27 feet above mean sea level, would have a surface area aggregating some 23 acres (1,027,900 square feet.) ECUA would erect a perimeter fence and install warning signs. Except for valves, "no mechanical equipment [would be) involved in the disposal site," T.123, nor are "bright lights," id. planned. Water flowing into percolation ponds does not create an aerosol. Odors are not foreseen. Encircling each infiltration basin, berms three to three and a half feet higher than the cell bottoms would contain effluent and deflect sheet flow. Except for rain falling directly into the cells, stormwater would not reach the percolation cells. Chances that effluent augmented by rainfall would overflow the berms are remote. A 100-year, 24-hour return storm would not interrupt operation of the facility. No percolation pond site lies within the 100-year flood plain. No percolation basin is to be located within 500 feet of a potable water supply well or class I or class II surface water; or closer than 100 feet to the boundary of the property. Situated within some 20 acres of wetlands, a brackish pond lies about 1,000 feet from the nearest cell planned, between Site F and Big Lagoon into which the pond opens. At the nearest point, Big Lagoon itself comes within 1200 feet of a planned percolation cell. A swale or slough bridged by Blue Angel Parkway runs southwesterly north and west of the main phalanx of percolation ponds ECUA proposes, then turns a corner and runs southeasterly, separating the two cells proposed for the southwest portion of the property from the others. The nearest percolation pond is to be built about 100 feet from wetlands associated with the swale. Loading Rates ECUA plans to direct wastewater into half the cells one week and the remainder the next, alternating like the squares on a chessboard. The exact cycle is not a condition of the construction permit, however, and computer modelers assumed loading cycles consisting of two two-day periods. As applied to the total bottom area of percolation cells, the average daily loading rate for three million gallons a day (mgd) would amount to 2.91 gallons per square foot. Because half the ponds would be resting at any given time, ponds receiving effluent would experience inflow at an average rate of 5.82 gallons per square foot. In deciding the length of the loading cycle, as "the soil gets lower in permeability you have to really stretch your time for loading out, because it takes the water much longer to get out of the loading area." T.I. 188. But, with respect to the long-term capacity of the system, "the period of loading and resting . . . really doesn't significantly affect . . . how the site is expected to perform." T.II. 222. In the absence of bench-scale or pilot-scale tests heretofore, the applicant "intend[s] to load test this site, because just for the various concerns, because it is a big site." T.I. 189. Groundwater Effects Class G-II groundwater under the site now flows generally southerly toward the brackish pond and Big Lagoon. An expert put the rate of flow under the site at .22 feet per day, but concluded that the rate increased to approximately a half foot a day between Site F and Big Lagoon. As far as is known, groundwater under the sites proposed for the infiltration ponds rises no closer to the surface than six to nine feet, even under wet conditions, although the evidence by no means conclusively established that it would never rise higher. Some groundwater emerges in the swale during wet periods, and flows in the swale as far as the brackish pond, to which other groundwater makes regular, direct contribution. At the edge of the lagoon, further out in the lagoon and possibly in the Gulf of Mexico, still other groundwater comes up as springs. At least initially, the sandy soils would accept effluent readily. Until and unless actual experience showed that the facility could handle the three mgd for which it is designed, the plan is to dispose of no more than 2.5 million gallons of effluent a day. Before equilibrium is attained, ongoing disposal of effluent would gradually raise the level of groundwater under the site, inducing, on the preexisting, sloping surface of ambient groundwater, a mound, on which 16 smaller mounds (corresponding to the loading nozzles discharging wastewater into the percolation ponds) would superimpose themselves, half swelling, like so many goose eggs, half subsiding, at any given time. Adding effluent should not materially alter the ultimate direction of flow. For the most part, even groundwater flowing in other directions off the mounds induced under the site would eventually turn south toward the lagoon. But a steeper gradient should speed up the flow. Percolating effluent would increase the volume not only of seepage into the swale but also of subterranean flow reaching both the brackish pond and the lagoon. Increased seepage upslope from the slough would flow down into the swale, along the stream bed, and into the brackish pond. Monitoring As modified at hearing, ECUA's monitoring plan contemplates eight wells and four surface water monitoring points from which water samples would be periodically taken for analysis, to determine levels of nitrogen, phosphorous and other chemical and biological constituents of concern. Once the facility began operating, no well would yield "background" samples uninfluenced by the effluent. T. I. 221. The wells are all to be located on ECUA property and, therefore, close enough to the percolation ponds to receive ground water flows radiating from the mounds adding the effluent would induce. Final Destination Effluent emerging in seepage, perhaps as much as 75 percent of the total (T. III. 47), could reach Big Lagoon, by way of the swale and the brackish pond, soon after regaining the surface of the land. Wetland vegetation would filter such flows, already diluted underground and sometimes by stormwater runoff, on their way to the lagoon. Effluent that mixed with groundwater traveling to Big Lagoon underground would not show up in the lagoon for months or years. But when it arrived, much diluted and after such attenuation of pollutants as the largely inorganic soils afforded, it would also contribute to subtle changes in the waters of Big Lagoon. Virtually all effluent would ultimately end up in Big Lagoon. T.I. 234; T.III.45. Two channels connect Big Lagoon to Pensacola Bay to the east, and a single, more constricted channel connects it to Perdido Bay to the west. Tides influence the circulation of the Class III water within Big Lagoon, variously calculated to amount to some ten or eleven billion gallons of clean salt water. Through Pensacola Bay and Perdido Bay, Big Lagoon communicates with the Gulf of Mexico. As the tide rises, water from the adjacent bays enters the long and narrow reaches of Big Lagoon, at either end. As the tide ebbs, water in the lagoon (including a significant portion of bay water introduced by the preceding tide) flows out either end. ECUA's expert's claim that tides flush the lagoon in less than nine days did not take this back-and-forth movement into account, or look specifically at the four-billion gallon basin into which the brackish pond overflows. Big Lagoon lies south of the mainland and north of Perdido Key, one of the barrier islands paralleling the coast. These islands and waters north of them, extending as far as the southern boundary of the intracoastal waterway, comprise the Gulf Islands National Seashore. By rule, the waters of Big Lagoon south of the intracoastal waterway have been designated Outstanding Florida Waters. Two to three hundred yards wide, the intracoastal lies not far offshore the mainland. Water Quality Analysis of a single ground water sample revealed nutrient levels, but neither the applicant nor DER developed any data specific to Big Lagoon about nutrient levels there. Chemical analyses done on four samples of lagoon water (at petitioner's expense) revealed no nitrate nitrogen above detection levels in any of the samples, and no ammonia nitrogen above detection levels in three of the four samples, but disclosed 0.08 parts per million in the fourth. Three of the four samples contained 0.02 parts phosphorous per million, while the fourth had phosphorous in a concentration of 0.03 parts per million. Tests with water taken from Big Lagoon showed that the addition of both nitrogen and phosphorous compounds (but not the addition of one without the other) coincided with algal growth in one of four sets of samples, each set including a control in which such growth did not occur. In other samples of lagoon water into which algae were introduced, the addition of nitrogen, either alone or in combination with phosphorous, seemed to cause blue-green algae to predominate, instead of the dominant, indigenous pennate diatoms. In these experiments, ammonia chloride was added to produce nitrogen concentrations of 17.5 grams per liter, six times greater than would be allowed in the effluent, as much as 17 times greater than the concentration petitioner's expert predicted for wastewater reaching the lagoon, and two orders of magnitude above ambient levels. The experimenter also added sodium phosphate dibasic heptahydrate to create phosphorous concentrations of four grams per liter, which is also two orders of magnitude above levels naturally occurring in Big Lagoon. Special permit conditions limit (on an annual average) total nitrogen in effluent sent to Site F to 75 pounds per day, and phosphorous to one milligram per liter, which would amount to 25 pounds in three million gallons, the maximum daily flow. Permit conditions also prescribe limits for acidity and alkalinity (pH must be greater than 6.0 and less than 8.5), suspended solids, and biochemical oxygen demand. Basic dis- infection is required. Assuming ECUA disposed of three mgd at Site F, up to 25 pounds of phosphorous could be added to the estuary daily, on average, or more than a ton of phosphorous quarterly, if steady state were attained. Although three times as much nitrogen might occur in the effluent, oxidation and reduction would cause some nitrogen to enter the atmosphere as a gas instead of remaining dissolved until it reached the estuary. Not only organic components of the soil but also organic matter arriving in the effluent and accumulating on pond bottoms would contribute to denitrification. Salinity in the brackish pond would decline. A DER employee, Mr. Swartz, testified that placing three mgd of effluent in the planned percolation ponds "would not result in degradation of the surface water," (T. II. 127) citing "our experience here in Florida." Id. Whatever may be said as regards the brackish pond, no evidence gave substantial reason to question the accuracy of this opinion as it relates to waters south of the intracoastal waterway.
Recommendation It is, accordingly, RECOMMENDED: That DER deny the application, without prejudice to the filing of another after successful bench-scale or pilot-scale hydraulic testing and after ECUA has made arrangements for a ground water monitoring well from which samples unlikely to be affected by the effluent may be drawn. DONE and ENTERED this 2nd day of February, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 2nd day of February, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 8, 13, 14, 16 and 18 have been adopted, in substance, insofar as material. Most of petitioner's proposed finding of fact No. 15 accurately recites testimony adduced, but Shuba testified that algal growth has been stimulated by nutrient concentrations comparable to those Dohms said would occur in water entering Big Lagoon, not in concentrations likely to exist once this wastewater-bearing contribution mixed with other water in the lagoon. Petitioner presented information about nutrient levels in lagoon water at hearing. Computer modeling suggested break out, which has been considered. Petitioner's proposed findings of fact Nos. 17 and 19 accurately recite the testimony. DER's proposed findings of fact Nos. 1, 2, 3, 4, 5, 10, 11, 12, 13, 15, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 42 and 43 have been adopted, in substance, insofar as material. With respect to DER's proposed finding of fact No. 6, the rate of flow increases south of the proposed pond sites. With respect to DER's proposed findings of fact Nos. 7 and 8, seasonal high ground water elevations were not shown conclusively. With respect to DER's proposed finding of fact No. 9, the aquiclude lies 90 to 110 feet below the surface. With respect to DER's proposed finding of fact No. 14, the rule requires a five-day rest. With respect to DER's proposed findings of fact Nos. 33, 34 and 35, the current rules do require mounding analysis, and there seemed to be a consensus that ground water enhanced by effluent would seep to the surface downslope from the ponds. With respect to DER's proposed findings of fact Nos. 36 and 37 and 44, free form agency action is technically immaterial. With respect to DER's proposed findings of fact Nos. 38, 39, 40 and 41, effluent would have mixed with groundwater before reaching Big Lagoon, but increased levels of nitrogen and phosphorous could be detected, as a result. ECUA's proposed findings of fact Nos. 1, 3, 4, 5, 6, 8, 10, 11, 12, 15, 16, 17, 20, 23, 24, 25, 26, 27, 28, 36, 37 and 38 have been adopted, in substance, insofar as material. With respect to ECUA's proposed findings of fact Nos. 2, 13, 21 and 32, the evidence showed that it was not unlikely that effluent, after percolating through pond bottoms and mixing with groundwater, would seep to the surface down slope. With respect to ECUA's proposed finding of fact No. 7, proposed cell bottom elevations fall in this range. With respect to ECUA's proposed finding of fact No. 9, the evidence did not establish that the high water table will always be nine feet below the pond bottoms. With the induced mound, ECUA's proposed finding of fact puts it at one to two feet. With respect to ECUA's proposed finding of fact No. 14, the tidal range is too high and the calculation ignores the back and forth movement of waters at either end of the lagoon. With respect to ECUA's proposed findings of fact Nos. 18 and 19, the current standard pertains total nitrogen. With respect to ECUA's proposed finding of fact No. 22, freeboard will vary with rainfall and effluent levels. ECUA's proposed findings of fact Nos. 29, 30, 31 and 34 relate to subordinate matters. With respect to ECUA's proposed finding of fact No. 33, more than one analysis was done. With respect to ECUA's proposed finding of fact No. 35, the applicant has given reasonable assurance. COPIES FURNISHED: Robert W. Kievit, Esquire Lester M. Westerman 10451 Gulf Beach Highway Pensacola, FL 32507 James Mullins 11001 Gulf Beach Highway Pensacola, FL 32507 Susan Guttman 11315 Sea Glade Drive Pensacola, FL 32507 Cindy L. Bartin, Esquire 15 West Main Street Pensacola, FL 32501 Joseph W. Landers, Esquire 310 West College Avenue Tallahassee, FL 32302 Stephen K. Hall, Esquire Asst. General Council Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 =================================================================
The Issue The issues are whether the Consent Order entered into between the Department of Environmental Regulation (DER) and Kenneth Acre (Acre) is an appropriate settlement of the violations addressed therein and whether Acre is entitled to construction permit number IC35-190005 for an Industrial Waste Disposal Facility. The Bradys assert that the Consent Order is not a reasonable exercise of DER's enforcement discretion and that the permit should be denied.
Findings Of Fact Background Acre owns and operates an animal research facility in Eustis, Florida. Acre performs research trials on dogs using a USDA approved heartworm medication sold under the brand name of Heartguard, the chemical name of which is ivermectin. Acre is not in the business of testing or manufacturing new drugs. The Consent Order To handle the waste generated by the animals at the facility, Acre initially constructed a conventional septic tank system. Prior to construction, Acre contacted the Lake County health department to inquire about permitting and was told that he did not need a permit for his facility. With that information, he continued with the project. Subsequently, DER became aware of the facility and notified Acre that a DER industrial waste permit was required and that he should cease the discharge into the septic tank until such a permit was obtained. Acre complied with DER's instructions and plugged the septic tanks. Since the time the septic tanks were plugged, the waste has been collected by Roto Rooter on a periodic basis and disposed of offsite. Acre entered into a Consent Order with DER to resolve the alleged past violation for not obtaining a permit and paid of penalty of $600 as required by DER. The Consent Order is a reasonable and appropriate settlement of the violations alleged therein. The Disposal System Acre has applied for a permit to construct and operate an evapotranspiration disposal system to dispose of the waste from his facility on site. The proposed system is essentially a modified septic tank system using a lined drainfield to capture and hold the liquid waste, allowing it to transpire from the grass or otherwise evaporate into the atmosphere and preventing any discharge to groundwater. The waste will be discharged to a series of modified septic tanks which will provide treatment beyond that of a traditional septic tank system and will reduce the amount of total suspended solids. The first septic tank accepts the waste and provides initial treatment through natural settling of solids. The waste then passes through a filter device and travels by gravity flow to the second septic tank. From the second tank it flows through a second filter device and into a dosing tank. The dosing tank is basically a small holding basin with a pump that disperses the waste to the drainfield in incremental amounts. The dosing tank contains several float mechanisms which monitor the level of liquid in the tank. When the water level in the dosing tank reaches a certain level, one such float mechanism turns on the pump to transport the liquid to the drainfield. The waste is then pumped from the dosing tank through a closed pipe to one of two evapotranspiration cells where it is distributed through a number of perforated pipes. The Evapotranspiration Cells The perforated pipes are situated in a gravel bed approximately 24 inches in depth. On top of the gravel bed is a clay soil mix approximately 15 inches deep. The clay soil mix absorbs the liquid waste in the gravel bed by drawing it up through the process of capillarity. Once the liquid is in the upper clay soil layer, it is evaporated. Grass is planted on top of the soil mix as an additional method for dissipation of the waste. The liquid waste is absorbed by the roots of the grass and transpired through the grass leaves. The clay soil mix in the top layer of the system is relatively impervious. The impervious nature of the soil mix along with a three percent surface slope will prevent rain water from entering the evapotranspiration cells and impacting the effective operation of the system. The entire drainfield has a double liner: one PVC plastic liner and a 6" clay layer. These two liners will ensure that no discharge to groundwater will occur from the system. System Capacity It is estimated that the Acre facility will produce approximately 520 gallons per day (GPD) of waste to be handled by the system. The drainfield is designed to handle twice the volume that will be discharged by the Acre facility and is therefore more than adequate to assimilate the waste received into the system. The drainfield is composed of two independent cells so that loading of each cell will be rotated. Once one cell receives its maximum capacity, the loading of that cell will cease in order to allow that cell to assimilate the waste through evapotranspiration. In this manner, the first cell is permitted to "rest" while the second cell receives further loading from the dosing tank. Safety Features Although the proposed disposal system is innovative in design, it incorporates several safety features which will ensure that no overflow of waste will occur. First, a float mechanism in the dosing tank is designed to trigger an alarm in the event the water level in the dosing tank gets too high. If that occurs, the alarm provides a flashing light as well as a horn which will notify the operator of a problem. Once the float reaches this warning level, the system will automatically shut down, thus preventing further waste from entering the system. Second, each evapotranspiration cell is equipped with a similar device which will automatically close off the dosing tanks and prevent further discharge into the cells in the unlikely event the system were to become too saturated to accept further loading. Finally, the double lined drainfield provides an additional safety measure which will prevent any discharge to groundwater. The numerous permit conditions requiring periodic monitoring of water quantity and quality in the system itself as well as the groundwater in the vicinity of the system provide ample assurance that the system will not pose a threat to the state's water resources. Ivermectin Although the proposed system will not discharge to groundwater, DER required the applicant to determine the amount of ivermectin in the wastestream. Ivermectin binds tightly to soil and does not dissolve in water. A sample of the wastestream from the Acre facility was collected by Bionomics Laboratory, Inc., and analyzed by Analytical Development Corporation using the analytical procedure designed by Merck scientists. The results of this analysis show that the concentration of ivermectin in the Acre wastestream ranges from .6 to 6.1 parts per trillion (ppt). The publication submitted to the Department by Acre entitled, Chapter 11, "Environmental Aspects of Ivermectin Usage in Livestock: General Considerations" by Halley, Nessel and Lu, from William C. Campbell, Ivermectin and Abamectin, documents the results of studies designed to determine whether using ivermectin in animals would result in any harmful or undesirable effects on the environment through excretion in the feces. This publication indicates that: Ivermectin is relatively immobile in soil and will not readily translocate into groundwater. Ivermectin is rapidly decomposed by sunlight and therefore will not accumulate in soil when administered to livestock. Ivermectin has no effect on earthworms at a concentration in soil of 12 parts per million (ppm). (This concentration is approximately two million times higher than that of the Acre waste stream.) Aquatic organisms such as water fleas and fish are highly sensitive to ivermectin toxicity. However, ivermectin is not toxic to the most sensitive species, the Daphnia magna, at a concentration of 0.01 parts per billion (ppb). Ivermectin concentrations in cattle feedlot runoff was less than the no-effect level of 0.01 ppb for Daphnia magna and therefore should cause no adverse environmental effects in surface or subsurface waters. The highest concentration of ivermectin found in the Acre waste stream is 6.1 ppt (or .006 ppb), which is less than the 0.01 ppb non-toxic level for the most sensitive aquatic species. Based on the concentration of ivermectin found in the Acre waste stream and the fact that ivermectin binds tightly to soil, the discharge from the Acre facility would not cause any adverse environmental impact, even if it were discharged to groundwater. Bradys' case Bradys submitted no evidence to show that the Consent Order is not an appropriate settlement of the violations alleged therein. They submitted no evidence that the septic tanks were improperly plugged. Brady offered no expert testimony in support of their claim that the facility had caused an adverse impact to groundwater or that the proposed system would cause any threat to groundwater quality. Bradys apparent concern about standing surface water on their property during heavy rainfalls is not relevant to this proceeding. Their concern that the lining of the drainfield could leak is unsupported by competent evidence. Bradys learned immediately prior to hearing that DER had changed its position and intended to issue the permit. Their failure to present any relevant evidence that the Consent Order was insufficient or that the proposed facility would violate any applicable DER rules or criteria and their ill- prepared participation in the hearing was in part the result of DER's late change in position. Bradys' participation in this proceeding was not shown to be frivolous.
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 and therein: Ratify the terms of the Consent Order as reasonable. Grant Acre construction permit number IC35-190005 for an Industrial Waste Disposal Facility, subject to the special conditions set forth in DER Exhibit 1. RECOMMENDED this 22nd day of July, 1992, 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 22nd day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NOS. 91-2608, 92-0958 AND 92-0959 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 Petitioners, Bradys 1. 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: 6 & 7(8) and 15(10). 2. Proposed findings of fact 1-5, 16, 27, 28, 31, 36-42, 44, 46-49, 51, 52, 54, 57-59, 61, and 62 are subordinate to the facts actually found in the Recommended Order. 3. Proposed findings of fact 8, 10-14, 17, 19-21, 26, 29, 30, 32, 33, 35, 43, 53, 55, and 56 are irrelevant. Proposed findings of fact 9, 18, 22-25, 45, and 50 are unnecessary. Proposed findings of fact 34 and 60 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents, Acre and DER 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: 1-44(1-44). Proposed findings of fact 45 and 46 are unsupported by the competent and substantial evidence. COPIES FURNISHED: Carlyn H. Kowalsky, Attorney at Law Bogin, Munns & Munns 250 North Orange Avenue 11th Floor-P.O. Box 2807 Orlando, FL 32802 Douglas MacLaughlin, Attorney at Law Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Martha Hunter Formella Attorney at Law FOLEY & LARDNER Post Office Box 2193 Orlando, FL 32802-2193 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
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue The issue in the case is whether amendments to the Lee County comprehensive plan are not in compliance for the reasons set forth in the amended petition of Petitioners.
Findings Of Fact I. Background Petitioners own legal and/or equitable interests in about 8600 acres in northwest Lee County (the Property). North and west of the Caloosahatchee River, the Property abuts Cape Coral on the south, US 41 on the east, Burnt Store Road on the west, and Charlotte County on the north. The Property is about one and one-half miles east of Charlotte Harbor. Gator Slough runs through the southeast corner of the Property before emptying into Charlotte Harbor. Acquired almost entirely in the 1950's, the Property is not entirely contiguous. It occupies ten entire square-mile sections and parts of six more square-mile sections in unincorporated Lee County. Petitioners also own about one-third of an adjoining section in Cape Coral, but this area is not relevant to the present case. Lee County adopted its comprehensive growth management plan under Section 163, Part II, Florida Statutes, (the Act) on January 31, 1989 (without regard to the subject plan amendments, the Plan). The Department of Community Affairs determined that the Plan was not in compliance with the Act. Litigation ensued under Section 163.3184(10) and remains pending as DOAH Case No. 89- 1843GM, as well as two other related cases. A partial settlement was reached in DOAH Case No. 89- 1843GM. Petitioners' interests in the above-described 8600 acres were represented in DOAH Case No. 89-1843GM by Intervenor Wiss, as Trustee. Intervenor Wiss declined to enter into the settlement, but his claims were abated with the remainder of the case while Lee County considered and adopted settlement amendments. As part of the plan amendment process, there were two meetings of the local planning agency, which were properly noticed by newspaper publication. As required, notice of the transmittal hearing of March 3, 1990 was also published. The two adoption hearings, which were held on September 6 and 12, 1990, were also properly noticed by newspaper publication. County representatives generally considered all comments and responded to many comments, including some but not all of the comments made on behalf of Petitioners. Pursuant to the settlement agreement, on September 6 and 12, 1990, Lee County adopted Plan Amendments 90-1 and 90-2 (the Plan Amendments), which are the subject of the present case. The Plan, as amended by the Plan Amendments, will be referred to as the Amended Plan. The Plan Amendments are included in a three-volume package, which is Petitioners Exhibit 331. The third volume, Petitioners Exhibit 331.c, contains the Plan Amendments, as well as accompanying data and analysis. (The data and analysis compiled and submitted to DCA with the original Plan or later with the Plan Amendments will be referred to as the Data and Analysis.) Among other things, the Plan Amendments resulted in the redesignation of 96,712 acres on the future land use map (FLUM) from Open Lands and Rural to a new future land use category, Density Reduction/Groundwater Resource. Three areas received the new designation. One is a large area in southeast Lee County south of Lehigh Acres and east of Interstate 75. Another area is a strip about 20 miles east-west and two miles north-south bordering the Charlotte and Hendry County lines. The third area designated Density Reduction/Groundwater Resource includes the Property. The 16 sections in unincorporated Lee County wholly or partly owned by Petitioners and constituting the Property lie within an area of 23 contiguous square-mile sections that are generally designated Groundwater Resource/Density Reduction. The larger area designated Groundwater Resource/Density Reduction almost completely occupies the above-described area of unincorporated Lee County from Burnt Store Road on the west between Charlotte County and Cape Coral to US 41 on the east with the exception of about two square-mile sections designated Suburban along US 41 south of the portion of the Property abutting US 41. As is the case with the other two areas designated Density Reduction/Groundwater Resource, the only other designation on the Property and the larger area of 23 sections is Resource Protection Areas and Transition Zones. The areas designated Resource Protection Areas and Transition Zones in the 23-section area represent substantial acreage, especially in the northern and western halves of the 23-section area. The Data and Analysis accompanying the Plan Amendments explain the purpose and effect of the Density Reduction/Groundwater Resource designation: During the state agency review of the 1989 Lee Plan, concern was expressed that, in sparsely-developed areas which coincide with areas of potential future water supply development, allowable densities were inconsistent with effective land use planning and too high for protection of groundwater resources. While a comprehensive assessment of existing programs that relate to water resources has already been accomplished (pp. II(e)-I through II(e)-27 of the support documentation of the Community Facilities and Services Element of the 1989 Lee Plan), the assessment did not include an evaluation of appropriate densities in sensitive water resource areas. Four regional investigations conducted over the past decade provide the basis for estimating future water demand, predicting likely supply sources to meet that demand, and developing strategies to insure that sources of supply are not depleted or degraded. The 1981 investigation by Hole, Montes & Associates, Inc. [Hole Montes Study; citation omitted] defined and mapped Lee County groundwater sources east of U.S. 41, evaluated their long-range potential for sustained withdrawals, examined future wellfield options, and outlined a Water Master Plan for potable supply and distribution. The South Florida Water Management District (SFWMD) described, in its 1982 report [Reconnaissance Report; citation omitted], the hydrogeology and groundwater quality of Lee County, and suggested conceptual land-use controls to preserve and maximize water supply potential. The 1987 work by Camp, Dresser & McKee, Inc. (CDM) [Camp Dresser Report; citation omitted] detailed the geometry and hydraulic characteristics of hydrogeologic units, modeled groundwater flow throughout the County, and furnished the technical foundation for the recently-enacted Wellfield Protection Ordinance. James M. Montgomery, Consulting Engineers, Inc., completed an investigation [Montgomery Study; citation omitted] in 1988 that included a detailed assessment of future water demand, a comprehensive reevaluation of groundwater resources, and an analysis of measures needed to ensure that future demand does not exceed supply capability. Projected future water demand has most recently been addressed by the Montgomery study. Demand was evaluated for the case in which all reasonable conservation methods were adopted, and for the case in which conservation was no greater than currently practiced. With extreme conservation, total demand in Lee County is predicted to increase from 132 million gallons per day (MGD) in 1988 to 234 MGD in 2010; the corresponding increase in potable demand supplied by utilities is from 22 MGD in 1988 to 55 MGD in 2010. Without concerted conservation efforts, total demand is predicted to rise from 194 MGD in 1988 to 368 MGD in 2010; 1988 utility demand will increase from 39 MGD to 102 MGD. If, for discussion purposes, the middle of these ranges is selected as a basis for water supply planning, the total need for additional water in 2010 will increase by 85%, to 301 MGD; the need for potable water supplied by utilities in 2010 will increase by 157%, to 78.5 MGD. Where this additional water will come from has been addressed by several of the regional investigations. The three sources which have been identified and considered are: a) shallow aquifers that are recharged by local rainfall; b) deeper aquifers that contain slightly saline to saline water; and c) the Caloosahatchee River. Regarding increased withdrawals from the River, the Montgomery study concludes that the discharge pattern is unreliable and strongly dependent upon upstream releases managed by the SFWMD. Additional supply might be feasible, but will likely be limited by competition from other users. In any event, off-stream storage (for example, a reservoir) would be required. No additional quantities can currently be predicted or assured. Increased used of deeper aquifers that underlie Lee County will probably play some role in meeting future demand, though there is little documentation of the long-term supply capability of these sources. The two aquifers in question are the Lower Hawthorne and the Suwannee aquifers, informally named to correspond with their occurrence in identified geologic units. While both aquifers are suspected to contain large volumes of developable water, it is generally agreed that some form of desalinization (for example, reverse osmosis) will be necessary to make water from these sources suitable for potable use. As a consequence, two attendant disadvantages arise. One is the substantial cost associated with desalinization, a result of the energy-intensive nature of the treatment process. Second is the need for, and expense of providing, an environmentally acceptable method for disposing of the brine that is a treatment byproduct. This is commonly accomplished by deep well injection, at rather extraordinary cost. Among the investigations previously cited, there is a consensus that the shallow aquifers in Lee County have the greatest potential for meeting future water supply needs. These aquifers are, in descending order from land surface, the Water Table, Lower Tamiami, and Sandstone aquifers. Each has its own particular areal extent, depth, thickness, hydraulic properties, water quality, and current usage, but they have in common the important characteristic of being recharged locally, from rainfall, surface water, and downward seepage. Because they are relatively shallow and not overlain by thick clayey sediments, they share as well a sensitivity to, and the potential for, impact as a result of man's activities at land surface. This sensitivity is especially pronounced for the Water Table aquifer, which responds directly and rapidly to surface conditions. Furthermore, this latter aquifer has been identified in the Hole- Montes and Montgomery studies as the single largest source of future potable water supply. A reduction in recharge to the Water Table aquifer occurs when the average elevation of the water table is lowered, most typically by promoting and accelerating runoff through drainage improvements. The consequences of a reduction in recharge to the water table aquifer are: a) a decrease in recharge to underlying aquifers and a lowering of their potential for sustained withdrawals; b) a reduction in the volume of water available for use (termed the "safe yield"); and c) a loss in aquifer storage, which represents an increased probability of environmental impacts during prolonged dry periods. All regional studies which have addressed this issue conclude that maximizing the potential of shallow aquifers in Lee County requires, through appropriate land use controls, the water table to be maintained at or above existing levels. This is especially important because very little rainfall recharges the aquifer during the winter. This dry period coincides with Lee County's seasonal population peak (and corresponding peak water demand). Water quality impacts to the Water Table aquifer are of particular concern, as there is no overlying confining layer to prevent or retard the entry of contaminants. Once introduced, pollutants will migrate to underlying shallow aquifers, because these are recharged from above, and towards wellfields, because these are normally downgradient, discharge areas. Experience demonstrates that contamination may spread, undetected, in a plume-like fashion over large areas, and may be extremely costly to correct. While these concerns have been addressed for existing wellfields through adoption of the Wellfield Protection Ordinance, future wellfield areas, which have been identified only on a broad regional basis, have no such protection. Though the water table aquifer is recharged almost everywhere in Lee County, hydrologic studies have identified specific areas in which recharge is particularly effective, and corresponding areas which hold the greatest potential for future water supply development (figure II.D-l). Delineation of these areas has also been accomplished for the Lower Tamiami aquifer (figure II.D-2) and, to a lesser extent, the Sandstone aquifer (figure II.D-3). South of the Caloosahatchee River, these areas can be generally described as land east of 1-75 and south of SR 82. North of the Caloosahatchee River, areas important for both their recharge function and their potential for future withdrawals include non-urbanized areas near Charlotte County (figure II.D-4). Water supply development in the most favorable areas depends on the ability to capture water that is otherwise lost to evaporation and runoff, and on maintaining acceptable water quality. The principal constraint on the volume of available water is likely to be avoidance of impacts to wetlands, which, particularly in the southern area, are abundant. Studies suggest that, for environmental protection, it may be necessary to abandon traditional concepts of large, focused withdrawals from relatively small wellfield areas. Instead, low- yielding wells widely spaced from one another may be required [citation to Hole Montes Study]. As a consequence, it is not unlikely that most to all favorable recharge and water supply areas will eventually be within the cone of depression of one or more wellfields. Estimates of the safe yield of promising water supply areas north of the Caloosahatchee River have not been made, and will require additional data collection and on-site testing. For favorable areas south of the river, the Hole-Montes investigation concludes that the safe yield may be limited by environmental constraints to about 70 MGD, or only 23% of the averaged 301 MGD which would be required in 2010. Regional investigations are unanimous in their conclusion that land- use controls are necessary to preclude activities which, through increased runoff or water quality degradation, may decrease the potential safe yield of these shallow groundwater resources. There is no universal consensus as to the proper type of land-use controls which are needed to protect shallow groundwater resources. Lee County is in the forefront of communities which prohibit the use of many toxic substances near potable wells and protect the quality of discharges which may affect existing potable water wells. However, the weakness of the current regulations is that urban development can under certain circumstances take place in the very areas which are expected to provide the community's future water supply. However, Lee County is fortunate in that a very considerable portion of the overall land mass is available for development and in fact is more favorably suited for urban development than is the land in the prime groundwater resource areas. There is no need to choose between protecting future groundwater resources and limiting overall development opportunities. The Future Land Use Map designates ample land for urban development over the coming several decades. Therefore, a conservative approach can be taken which encourages urban development in accordance with the overall concepts of the Lee Plan, yet restricts such development in the prime groundwater resource areas. As more is learned about techniques for protecting these areas, it is possible that the restrictions against urban development can be modified. But there is no need to experiment with such a crucial part of the community's future at this time. Of course, reasonable use must still be allowed to land owners in these areas. An example of such uses are rural residential development at very low densities; limerock and fill dirt mining which cause no significant alteration of groundwater levels; all conservation uses; and continued agricultural activities. But urban development, with its resulting demands for improved drainage and associated commercial/industrial/institutional development, should not be permitted. To provide for protection of recharge and future water supply areas, the following changes are hereby made to the Lee Plan[.] Petitioners Exhibit 331.c, pages II-4 to II-12. The above-cited Data and Analysis also contain four figures: Montgomery Study Plates 83-85 (Figures II.D-1 through II.D-3, respectively), which show places with potential well development areas for public water supply, and Hole Montes Study Plate 19 (Figure II.D-4), which shows places with potential for additional groundwater development. The most relevant provisions of the Amended Plan are set forth below. Changes made by the Plan Amendments are shown by striking through deletions and underlining additions. Underlined portions of the Amended Plan are shown in boldface. Future Land Use Element (FLUE) Objective 1.4 divides "Non-Urban Areas" into three designations that "are not anticipated for urban development at this time." The designations are Rural, Outer Islands, and the new category, Groundwater Resource/Density Reduction. FLUE Policy 1.4.3 provides: The Density Reduction/Groundwater Resource areas include upland areas that provide substantial recharge to aquifers most suitable for future well field development. These areas also are the most favorable locations for physical withdrawal of water from those aquifers. Only minimal public facilities exist or are programmed. Land uses in these areas must be compatible with maintaining surface and groundwater levels at their historic levels. Permitted land uses include agriculture, mineral and limerock extraction, conservation uses, and residential uses at a maximum density of one dwelling unit per ten acres (1 du/10 acres). Individual residential parcels may contain up to two acres of resource protection areas and transition zones without losing the right to have a dwelling unit, provided that no alterations are made to those wetland areas. FLUE Objective 1.5 identifies "Environmentally Sensitive Areas," which "because of overriding environmental considerations" allow development "only at very low densities and intensities." Objective 1.5 divides "Environmentally Sensitive Areas" into two designations, Resource Protection Areas and Transition Zones, which are combined into a single designation on the FLUM. FLUE Policy 1.5.1 provides: The Resource Protection Areas include lands that exhibit soil types, hydrology, and vegetation characteristic of freshwater and saltwater wetlands. They are areas in which it is necessary to protect, conserve, restore, or preserve water resources systems and the biological functions attendant thereto. These areas are unsuitable for all but extremely low-density development for one or more of the following reasons: To prevent degradation of water quality. To prevent degradation of freshwater storage capabilities. To prevent the degradation of biological productivity. To prevent damage to property and loss of life due to flooding. To prevent degradation of the viability and diversity of native plants and animals and their habitats. To assure the conservation of irretrievable or irreversible resources. Permitted land uses in the Resource Protection Areas consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, or additional drainage is prohibited. Roads above grade may be permitted under specific limited conditions as outlined in the Lee County Wetlands Protection Ordinance, as the same may from time to time be amended. Maximum density is one dwelling unit per forty acres (1 du/40 acre) except as otherwise provided in Table 1. FLUE Policy 1.5.2 states: The Transition Zones include lands that may be seasonally inundated from one to three months as indicated by water marks, do not have depressional soils, and are characterized by a mixture of plant species typical of uplands and wetlands. These areas consist of important water resource areas such as seasonal wet prairies; ephemeral ponds, and/or natural flow-ways and are associated with freshwater and saltwater wetlands. Transition Zones provide a hydrological connection between wetlands and uplands and provide protection and buffering of wetlands from fire, water pollutants, and exotic vegetation. Permitted land uses in the Transition Zones consist of very low density residential use and uses of a recreational, open space, or conservation nature that will not adversely affect the area's critical environmental character. The construction of ditches, canals, dikes, roads above grade, or additional drainage is prohibited unless it is demonstrated that such proposed construction will not: cause higher rates of runoff or degradation of water quality or retention capacity; increase the possibility of flooding; or otherwise alter the existing wetland systems. Maximum density is one dwelling unit per twenty acres (1 du/20 acre) except as otherwise provided in Table 1. FLUE Policy 1.8.5, which was added by the Plan Amendments, precludes the use of a planned unit development for areas designated Density Reduction/Groundwater Resource. Community Facilities and Services (Community Facilities) Element Goal 32 is: To ensure that future populations have access to potable water supplies and services at a reasonable price by using and encouraging conservation and resource management measures to reduce consumption of potable water. Community Facilities Element Objective 32.1 is to implement specified programs by specified dates to "reduce potable water consumption and consumption of large volumes of potentially potable raw water, by 5% by 1994." Community Facilities Element Goal 39 is: To protect the county's potential groundwater resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters. Community Facilities Element Objective 39.1 is to consider surface water runoff as a "possible resource" and requires the County to "consider integrating the use of surface water runoff in any supply program or strategy . . .." Community Facilities Element Policy 39.1.1 states: Lee County recognizes that all fresh waters are a resource to be managed and allocated wisely, and shall support allocations of the resource on the basis 1) of ensuring that sufficient water is available to maintain or restore valued natural systems, and 2) of assigning to any specified use or user the lowest quality fresh water compatible with that use, consistent with financial and technical constraints. Community Facilities Element Policy 39.1.2 provides: The County shall explore, and implement where financially and technically feasible, all existing options for storing and utilizing excess surface water runoff for human consumption and other uses. Such options may include surface impoundments; back-pumping to reservoirs, to upland wetlands, or to ground storage; and ground storage by ex-filtration systems or by aquifer storage and recovery systems. Maximum contaminant levels consistent with Florida DER and US EPA regulations governing receiving waters will be met through treatment as required. Excess surface water runoff shall be defined as the water not required to maintain, or to restore to either historic natural conditions or to some other acceptable state, the hydrograph of streams discharging to estuarine waters or other valued wetland systems. Community Facilities Element Policy 39.1.3 states: In the event that the timing and volume of fresh-water discharges necessary to maintain the health and productivity of estuaries and other wetlands cannot be determined or supported by existing scientific data, the County shall sponsor, in collaboration with other agencies, institutions, and organizations, adequate research programs to make such data available by 1995. Community Facilities Element Policy 39.1.4 states: The county's Surface Water Management Master Plan shall place particular emphasis on 1) routing surface water runoff from areas of excess to areas where additional subsurface storage is available; and 2) maintaining and increasing historic surface and groundwater levels in the Density Reduction/Groundwater Resource land use category. Community Facilities Element Objective 39.2 is to: Support a surface water management strategy that relies on natural features (flow ways, sloughs, strands, etc.) and natural systems to receive and otherwise manage storm and surface water. Community Facilities Element Objective 39.3 is: By 1990, Lee County shall provide sufficient performance and/or design standards for development protective of the function of natural drainage systems. Community Facilities Element Policy 39.3.1 is to: "Provide sufficient performance and design standards to require post-development runoff to approximate the total characteristics of the natural flow prior to development." Community Facilities Element Policy 39.3.4 states: "Natural flow patterns shall be publicly restored where such action is of significant public or environmental benefit, and feasible." Community Facilities Element Goal 41 is: "To protect the County's groundwater supplies from those activities having the potential for depleting or degrading those supplies." Community Facilities Element Objective 41.1 and related policies describe a wellfield protection ordinance to protect the "quality of water flowing into potable water wellfields." Community Facilities Element Objective 41.2 states: During 1989, the cCounty staff shall review all technical data identifying concerning aquifer groundwater recharge areas throughout in Lee County as it becomes available, and propose any necessary modifications to the Future Land Use Map or general county regulations necessary to protect or improve such areas. Community Facilities Element Policy 41.2.1 provides: Based on best available technical data, the County shall designate appropriate areas of the county as sources for future potable water supply and revise development regulations to preclude incompatible uses of this land. Community Facilities Element Policy 41.2.2 states: A new land use category, called the Density Reduction/Groundwater Resource category, shall be applied to protect the County's groundwater resources and principal recharge areas. Land use controls in the category shall be as described in Policy 1.4.3. Community Facilities Element Objective 41.3 is to: Base all future development and use of groundwater resources on determinations of the safe yield of the aquifer system(s) in order not to impair the native groundwater quality or create other environmental damage. Criteria for safe-yield determinations shall be established through groundwater supply and surface water management studies over the years 1989-1993. Community Facilities Element Policy 41.3.1 states: For maximum protection of groundwater resources, identify future wellfields and/or relocation site(s) for existing wellfields well in advance of need. Coordinate with SFWMD, other water suppliers, and DER to avoid duplication and to assist in data collection and interchange. Community Facilities Element Policy 41.3.3 provides: Identify water needs consistent with projections of human population and the needs of natural systems in order to determine the future demands for groundwater. Expand current programs to identify and map the contamination potential of groundwater resources for those areas of Lee County not currently under public ownership. Conservation and Coastal Management (Conservation) Element Objective 84.3 states: Land uses and development designs must protect the values and functions of wetlands, and to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands. Conservation Element Policy 84.3.3 states: "Absent overriding public needs, access roads and land development in the Resource Protection Areas and Transition Zones shall be strongly discouraged." Conservation Element Goal 87 is: "To conserve, manage, protect, and improve the natural hydrologic system of Lee County to insure continued water resource availability." Conservation Element Objective 87.1 is to: "Insure water supplies of sufficient quantity and quality to meet the present and projected demands of all consumers and the environment, based on the capacity of the natural systems." Conservation Element Policy 87.1.1 states: "Natural water system features which are essential for retention, detention, purification, runoff, recharge, and maintenance of stream flows and groundwater levels shall be identified, protected, and managed." Conservation Element Policy 87.1.3 is to manage freshwater resources to "maintain adequate freshwater supplies during dry periods and to conserve water." On October 18, 1990, DCA issued a notice of intent to find the Plan Amendments in compliance. On November 16, 1990, Petitioners filed a petition challenging the determination and commencing the subject case. (One of the Petitioners in the present case, Intervenor Wiss, as Trustee, elected not to participate further in DOAH Case No. 89-1843GM.) In the negotiations between DCA and Lee County that culminated in the settlement agreement, each party approached the designation of the northwest part of Lee County from a different perspective. DCA was primarily interested in lowering densities in rural areas, and Lee County was primarily interested in protecting potential sources of potable water. Both interests were served by designating the entire 23-section area, of which the Property is a large part, as Density Reduction/Groundwater Resource with a density of one dwelling unit per 10 acres (1:10), except for smaller areas designated as Resource Protection Areas and Transition Zones. Much of Petitioners' challenge concerns the adequacy of the data and analysis supporting the Density Reduction/Groundwater Resource designation assigned to the Property. Prior to adopting the Plan Amendments, the County hired David Gomberg, Ph.D., a groundwater resources consultant, to determine whether data and analysis supported the Density Reduction/Groundwater Resource designations. County staff directed Dr. Gomberg to review available technical information related to groundwater resources in Lee County. The primary materials were the Hole Montes Study, Reconnaissance Report, Camp Dresser Report, and Montgomery Study (the Four Studies). County staff then requested Dr. Gomberg, following his review of the data and analysis, to prepare text to be incorporated into the Data and Analysis in support of the Plan Amendments. The Hole Montes Study, which is entitled the Lee County Water Master Plan, was completed in December, 1981, and presented to the County on January 26, 1982. The study includes a plan for the "development, protection, and management of water resources until 1995." The Hole Montes Study ignores northwest Lee County-- specifically all of Lee County west of US 41 and north of the Caloosahatchee River. Figure 9-1 (Petitioners Exhibit 51.a) shows two areas to be protected as sources of potable groundwater. One area, which is north of the Caloosahatchee River, is a narrow band running about 20 miles east-west from the vicinity of US 41 to the Hendry County line on Lee County's east boundary. This area abuts Charlotte County to the north. The other area encompasses most of the County south of the river and east of US 41, including the Lehigh Acres area. Much of the two areas are designated as Density Reduction/Groundwater Resource on the FLUM. The Hole Montes Study recommends that development in the two areas described in the preceding paragraph be required to meet certain standards, such as that post-development runoff be less than predevelopment runoff, historic wet season water levels be maintained, and the storage and use of pollutants be regulated. The Hole Montes Study defines the water table aquifer as the "saturated deposits between the water table and the top of the upper confining unit." Petitioners' Exhibit 51.b, page 19. The Hole Montes Study defines transmissivity as a "numerical expression of an aquifer's capability to transmit water." Id. at page 21. Concerning transmissivity, the Hole Montes Study elaborates: It is generally advantageous to site a wellfield where an aquifer has its highest transmissivities. In these areas fewer wells will be needed to meet demand, while producing the least detrimental effect upon water levels in the area. Id. With respect to its study area, which excludes the area of the Property, the Hole Montes Study recommends that, as to transmissivities, large wellfields tapping the water table aquifer are most suitable in the southeast part of the County. In the remainder of the study area, where transmissivities are lower, "large supply [wellfield] development would still be viable although somewhat more expensive." Id. at page 22. In general, though, the Hole Montes Study is of little additional value in supplying data and analysis directly relevant to the Density Reduction/Groundwater Resource designation given the Property. The Reconnaissance Report, which was completed in January, 1982, covers all of Lee County. Prepared by the South Florida Water Management District (SFWMD), the Reconnaissance Report was intended to "provide a basis for the optimal development and management of the groundwater resources in the area." Lee County Exhibit 52.a, page 4. The introduction to the report notes that this comprehensive hydrogeologic assessment and reevaluation of Lee County's groundwater was necessitated by various factors, including the "complexity of the hydrogeologic systems" that make it more difficult to "identify zones of high production within the aquifers" and the lowering of water levels caused by groundwater withdrawals due to the "relatively low transmissivities in some of the aquifers." Id. The Reconnaissance Report explains that aquifers are "rocks which will yield water in sufficient quantity to be valuable as a source of supply" and confining zones are "low permeability rocks which lie above, between or below aquifers." Lee County Exhibit 52.1, page 41. The report identifies five major aquifers or producing zones in Lee County. From highest elevation to lowest, they are the surficial aquifer, Sandstone aquifer, mid-Hawthorn aquifer, lower Hawthorn/Tampa producing zone (part of the Floridan aquifer), and Suwannee aquifer. Id. Plate 2 of the Reconnaissance Report shows the thickness of the surficial aquifer throughout Lee County. Six of the square-mile sections lying in the northcentral part of the Property are between the 50' and 75' contours. The remaining ten partial or whole sections constituting the Property lie between the 25' and 50' contours. Areas above the 50' contour are relatively thick for Lee County, according to Plate 2, and are surpassed only by the southeast corner of the County where the surficial aquifer thickness rapidly increases from 50' to over 125'. The Reconnaissance Report cautions that the surficial aquifer is hydrogeologically complex. The producing zones and transmissivities may be difficult to measure and locally variable due to a number of technical factors. The Reconnaissance Report indicates that the elevation of the water table aquifer is subject to significant seasonal fluctuations. The main source of recharge is direct infiltration of precipitation. However, rainfall averages through Lee County vary by a surprisingly large amount. According to the report, average annual rainfall over northwest Lee County is less than 48 inches and over southwest Lee County is more than 68 inches. Lee County Exhibit 52.a, page 67. The Reconnaissance Report identifies three other important sources of recharge to the surficial aquifer. They are subsurface inflow from adjacent areas, inflow from surface water bodies, and upward leakage from underlying semi-confined aquifers. There are six sources of loss of water from the surficial aquifer. The sources of discharge are flow into streams, springs, and lakes; direct flow into the Gulf of Mexico or various bays and sounds; evapotranspiration; downward leakage into underlying semi-confined aquifers; subsurface outflow to adjacent areas; and pumping from wells. The Reconnaissance Report summarizes that the major constraints on the availability of groundwater are well yield and water quality. The two major factors affecting well yield are transmissivity and storage. Based on a "subjective" analysis of these factors, the report concludes, in Figure 55, that Lee County may be divided into three areas in terms of development potential for the surficial aquifer: good potential, moderate potential, and poor potential. The only area of good potential is the southeast corner of the County corresponding roughly to where the surficial aquifer thickens quickly. The areas of poor potential are the barrier islands, Pine Island, a strip of 1-2 miles inland from Charlotte Harbor north of the Caloosahatchee River, a wider strip along the coast south of the river, a band about four miles wide encompassing the river, and the Lehigh Acres area. The remainder of the County, including the Property, is shown as moderate potential. This area corresponds roughly with the three areas designated Density Reduction/Groundwater Resource. Addressing the area north and west of the Caloosahatchee River on both sides of US 41, which includes the Property, the Reconnaissance Report states: This assessment [of moderate potential for the development of groundwater from the surficial aquifer] is based on lower transmissivity values (20,000 to 40,000 gpd/ft.) which are probably related to the fact that the aquifer is thinner in this area (25 feet to 40 feet). However, these areas also lack thick, highly permeable beds such as those found in [the southeast corner of the County]. However, water quality is generally acceptable in this area and moderate supplies could be developed with proper well construction and wellfield design. Wells finished in [the area of moderate potential] would probably yield less water than wells in [the southeast corner of the County]. Lee County Exhibit 52.a, page 161. The Reconnaissance Report recommends, among other things, the collection of additional data and the implementation of land use planning to protect major regional recharge areas of the surficial aquifer. Lee County Exhibit 52.a, pages 181-82. The Camp Dresser Report, which was prepared in November, 1987, addressed existing wellfields and was intended to assist the County in the preparation of a wellfield protection ordinance. The Camp Dresser Report contains no data or analysis particularly pertinent to the subject case, except that it found, after reviewing the available data, that the thickness of the water table aquifer at Well L-653 was 60 feet. The most recent and relevant of the Four Studies is the Montgomery Study, which was presented to Lee County on October 5, 1988. The study area includes all of Lee County as well as hydrogeologically relevant parts of surrounding areas. The study analyzes the water table, Lower Tamiami (which is part of the surficial aquifer system, but is located south of the Caloosahatchee River), Sandstone (which is part of the intermediate aquifer system), Mid- Hawthorn (which is part of the intermediate aquifer system), and Lower Hawthorn aquifers. The Montgomery Study stipulates four criteria as preconditions for the suitability of the water table aquifer for wellfield development. The factors are: aquifer thickness of at least 30 feet, transmissivity of at least 100,000 gallons per day per foot, chloride levels of no more than 250 mg/l, and consideration of existing wellfields and their proximity to any proposed wellfield. Petitioners' Exhibit 144.a, Table 4-1, page 4-2. For thickness, transmissivity, and storage, as well as other factors, the Montgomery Study collected substantial data and then statistically extrapolated results for locations for which direct data were not available. This process is called kriging. Defining transmissivity as "a measure of the ability of an aquifer to transmit water through the aquifer material to the well," the Montgomery Study explains that transmissivity is a product of the "hydraulic conductivity of an aquifer multiplied by the aquifer thickness." Petitioners' Exhibit 144.a, pages 4- 1 and 4-3. Given equal withdrawal rates and storage values, the greater the transmissivity value, the lesser the drawdowns. Addressing aquifer thickness, the Montgomery Study states: From a technical standpoint a wellfield can be developed in a water table aquifer if the transmissivity is high enough regardless of the thickness of the aquifer. However, from a wellfield protection standpoint, a minimum thickness of aquifer is necessary to prevent or retard a potential discharge of contaminants from immediate intake at the wellhead. . . . Valid arguments can probably be presented for a criterion involving either a greater or smaller aquifer thickness. To provide for a minimum of wellfield protection we have arbitrarily selected a thickness of 30 feet as a minimum thickness in this trade-off. This thickness has also been selected with the understanding that implementation in the future of a wellfield protection ordinance by Lee County will be necessary to properly protect a wellfield at this shallow depth. Petitioners' Exhibit 144.a, page 4-3. The Montgomery Study warns that wetland impacts from wellfields in the water table aquifer must be evaluated on a case-by-case basis. The study finds that water levels are declining in the water table aquifer, despite the readily available surface water recharge. About 56% of the wells in the water table aquifer show declining water levels. But the problem of declining water levels is even worse in the intermediate aquifers and almost as bad in the Lower Hawthorn aquifer. Petitioners Exhibit 144.a, page 4-34. Cautioning that "[q]uantification of absolute amounts of ground water which are available for use is very difficult," the Montgomery Study calculates "on a gross scale" the amount of water that may be available for withdrawal from each of the studied aquifers. Petitioners' Exhibit 144.a, page 4-28. To permit closer evaluation of potential drawdown issues, the analysis of the water table aquifer considers total storage, storage in the top two feet of saturated aquifer, and storage in the top foot of saturated aquifer. Id. at page 4-30. The Montgomery Study concludes: The Water Table aquifer in conjunction with the Lower Tamiami aquifer and the Lower Hawthorn aquifer are the major potential aquifer sources of water supply to Lee County. . . . [T]he Water Table and Lower Hawthorn aquifers have the highest storage values of all the aquifers. Water availability from the Water Table aquifer is not precisely known. However, based on the amount of storage available from even a one or two foot thickness of the Water Table aquifer, a significant amount of water is available. Extraordinary measures for withdrawal may be necessary, including: (1) using large well spacings to reduce drawdowns near wetlands, (2) developing smaller wellfields rather than large supplies, and (3) mitigation of impacts on wetlands such as by discharge of water into wetlands to eliminate drawdown impacts or development of replacement wetlands by use of Caloosahatchee River water. Development of the pending three dimensional ground water flow model by the SFWMD will shed additional light and perhaps provide a more quantitative estimate of water availability from the Water Table aquifer. Petitioners' Exhibit 144.a, page 4-45. The Montgomery Study finds that the entire County is a recharge area for the water table aquifer. Petitioners' Exhibit 144.a, Table 4-43, page 4- 118. The study notes that natural groundwater aquifer recharge areas provide numerous benefits, including the capture and filtration of water for vertical flow, the supplying of an energy gradient that will make groundwater flow into an aquifer, the supplying of potentiometric head and groundwater flow to retard the inland movement of salt water, the supplying of better-quality water requiring less treatment in connection with wellfield development, and the growth and development of wetlands. As to the wetland function of natural recharge areas, the Montgomery Study continues: In Lee County, wetlands abound over the recharge area for the Water Table aquifer. Wetlands have formed over the recharge area because water levels are above or close to the surface of the Water Table aquifer most of the year. The indication is that wetlands will form over a recharge area when the aquifer tends to be overflowing or close to fully recharged. Wetlands have intrinsic value as part of the natural resources of Lee County. Wetlands also act as buffers to the water level and level of recharge within the aquifer. Wetlands accept both surface water runoff and discharge from the Water Table aquifer during the wet seasons when water levels are high. During the dry season, when water levels are low, the wetlands in turn provide recharge to the aquifer. Petitioners' Exhibit 144.a, page 4-126. Montgomery Study Plate 83 shows where in the County existing and proposed wellfields are located with regard to the water table aquifer. Most of Lee County bears no marking, indicating that it is unsuitable for wellfield development in the water table aquifer. However, Plate 83 also bears three other designations. One area in south Lee County is marked: "Areas which appear hydrologically suitable for well development but will require wetland mitigation." Most of the portion of this area in Lee County adjoins vast areas of wetlands that are marked: "Wetlands--Not suitable for well development." Smaller areas in north Lee County are marked: "Areas where well development may be possible--will require additional investigation and wetland mitigation." These areas include almost the entire extent of the Property, as well as two other areas of similar size along the north Lee County border. Much of the northcentral part of the Property also bears a Wetland designation. Lee County used other sources of data and analysis concerning the suitability of the Density Reduction/Groundwater Resource designation for the Property. For instance, Map I-12 of the Southwest Florida Regional Plan's data and analysis shows Gator Slough as one of the 15-20 major sloughs and swamps in the entire six-County region. Generally, the findings of these other sources conform to the findings contained in the Four Studies. Each of the Four Studies was prepared by qualified persons with appropriate areas of expertise, including hydrogeology. The Four Studies meet all relevant professional standards, as do the methodologies employed in connection with investigations conducted as part of the Four Studies. The Four Studies are not flawless. Originally, the Montgomery Study was to include extensive field testing, which was not performed for financial reasons. Other shortcomings were identified by Petitioners' expert, Thomas M. Missimer, who is the founder and principal hydrogeologist of the firm of Missimer and Associates, Inc. Mr. Missimer based his testimony not only on his considerable technical expertise, but also on an unusually extensive experience of the hydrogeology of the area. Mr. Missimer's work as far back as 1976 appears as a source of the Four Studies. Most significantly, Mr. Missimer testified that the aquifer thickness data for well L-653 is incorrectly reported as 60 feet when it in fact was only 20 feet. The Reconnaissance Report, Camp Dresser Report, and Montgomery Study all rely on the 60-foot value. Given the absence of data points in the area of well L-653 and its location on the northern edge of the Property, the accuracy of the aquifer thickness value significantly affects the kriged aquifer thickness value extrapolated for the water table aquifer under the Property. Based on Mr. Missimer's testimony, the evidence is, to the exclusion of fair debate, that the correct value for the aquifer thickness of well L-653 is 20 feet and the extrapolated value for the thickness of the water table aquifer underneath the Property is considerably less than as stated in the Montgomery Study. According to Mr. Missimer's testimony, which is credited on this point, the appropriate dry-season water table aquifer thickness for the Property ranges from 18-23 feet. More accurate data, rather than extrapolations, for the water table aquifer under the Property are not available partly due to Petitioners' refusal in 1984 to allow a County official to conduct field tests on the Property in order to determine the characteristics of the water table aquifer. The only field testing done in connection with the subject case was performed by Mr. Missimer, but was not available to the County until after it had adopted the Plan Amendments and thus was excluded. In any event, the evidence does not establish to the exclusion of fair debate that the criteria of 30-foot aquifer thickness and transmissivity of at least 100,000 gallons per day per foot used in the Montgomery Study represent minimum requirements for wellfield development. In other words, the evidence fails to prove by the requisite standard that an area designated Density Reduction/Groundwater Resource for potential water table aquifer wellfield development must meet the Montgomery Study criteria or else the designation lacks support from the data and analysis. Mr. Missimer also informed the County Commission during its March 27, 1990, public hearing on the Plan Amendments that the Montgomery Study omitted test data from five test wells located in northwest Lee County near the Property. It is unnecessary to determine whether these data met the screening requirements of the Montgomery Study and earlier studies or reports that also omitted these data. Even with the data from these five test wells, according to Mr. Missimer, the water table aquifer transmissivity on the Property would be extrapolated to 10,000-20,000 gallons per day per foot, except for a small area near US 41 with a maximum transmissivity of 25,000 gallons per day per foot. The transmissivity values offered by Mr. Missimer are at the low end of the 20,000-40,000 gallons per day per foot values referenced in the Reconnaissance Report. Although the aquifer thickness of 18-23 feet is just below the 25-40 foot thickness stipulated in the Reconnaissance Report, the Reconnaissance Report, like the Montgomery Study, does not establish minimum standards from which a local government may not deviate without repudiating the prevailing data and analysis. Petitioners have failed to prove to the exclusion of fair debate their key assertion--i.e., that the Plan Amendments are not based on relevant and appropriate data. Relative to other parts of Lee County, the three areas designated Density Reduction/Groundwater Recharge are the most suitable for the development of wellfields. The permitted low-density and -intensity land uses are entirely consistent with the protection of the potential of the area for wellfield development, while still allowing affected landowners reasonable use of their property. Although the entire County provides recharge to the water table aquifer, areas relatively undeveloped will allow more rainfall to enter the water table aquifer at the point where the rainfall falls rather than be lost to evapotranspiration or drainage improvements that accompany the installation of impervious surface. Petitioners are trying to impose a higher degree of precision on the data and analysis than the data and analysis permit. Projections of aquifer thickness and transmissivity are not traffic counts. Setting "minimum" standards for these values, as an indication of an area's potential for wellfield development, is not as exact a process as calculating the volume- to- capacity ratios defining different levels of service on road segments. The "minimum" standards on which Petitioners heavily rely are necessarily arbitrary to a certain extent, as conceded by the Montgomery Study. Equally important, the "minimum" standards for aquifer thickness and transmissivity are directly related to each other (e.g., a higher transmissivity may allow the use of a thinner aquifer). And the aquifer thickness is inversely related to the extent of land use restrictions imposed on areas in the cones of influence of water wells (i.e., stricter land use restrictions may allow the use of a thinner aquifer). The Data and Analysis accompanying the Plan Amendments adequately respond to the underlying data and analysis, including the Four Studies. The salient facts are fairly simple. To meet increasing demand, Lee County must tap a wider range of its potable water resources. Lee County will very likely be forced to withdraw increasing amounts of water from the water table aquifer for the production of potable water. Despite low values for aquifer thickness and transmissivity (relative to ideal conditions), the Property has reasonable potential, under the circumstances, for the development of the water table aquifer, most likely through a decentralized system of smaller wells in order to protect wetlands and, by so doing, the water table aquifer itself. And it is vital that Lee County carefully regulate the densities and intensities permitted on the Property in order to protect the quality and quantity of water in the water table aquifer. The data and analysis, which are accurately summarized in the Data and Analysis accompanying the Plan Amendments, support the designation of the Property as Density Reduction/Groundwater Resource, as well as Resource Protection Areas and Transition Zones. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the data supporting the Plan Amendments were not collected and applied in a professionally acceptable manner, that the Plan Amendments are not based on the best available data, and that special studies forming part of the data and analysis did not use appropriate, clearly described methodologies or did not meet professionally accepted standards. More data and more complex models can always yield more reliable results. But the evidence in this case establishes the validity of the data on which the County relied and the ensuing analysis in terms of the establishment of the Density Reduction/Groundwater Resource designation on the Property. The shortcomings of the Montgomery Study in particular were not material and, in any event, were far short of what Petitioners would have to show in order to determine that the study did not use appropriate methodologies or meet professionally acceptable standards or even that the Montgomery Study did not represent the best available existing data. Likewise, Lee County's use of the Four Studies was also appropriate. To the extent that the sufficiency of the data and analysis submitted to DCA even provides a basis for determining that a plan or plan amendment is not in compliance, Petitioners have failed to prove to the exclusion of fair debate that DCA did not have sufficient data and analysis to determine whether the Plan Amendments were in compliance. The relevant Data and Analysis accompanying the Plan Amendments were derived from Dr. Gomberg's summation of the data and analysis, especially the Four Studies. The Data and Analysis were a fair, suitably detailed representation of the relevant findings and conclusions in the Four Studies. As such, the Data and Analysis gave DCA a reasonable opportunity to conduct a review of the materials and reach an informed compliance determination concerning the Plan Amendments or, where appropriate, the Amended Plan. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that Lee County did not have available for public inspection during the adoption proceedings copies of all data and analysis or that Lee County did not comply with all requirements of notice and public participation. Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan lacks a policy addressing implementation activities for the protection of environmentally sensitive lands. In the context of the present case and the relief sought by Petitioners, the above-cited provisions of the Amended Plan adequately address the protection of environmentally sensitive lands. The data and analysis make it clear that any significant drawdown of adjacent wetlands will deplete the water table aquifer at the most critical time--during the winter dry months when seasonal demand is high. The provisions of the Amended Plan adequately address the threat to adjacent wetlands posed by the development of wellfields in the water table aquifer. Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments cause the FLUM not to reflect the operative provisions of the Amended Plan. The FLUM clearly reflects that the Property is designated exclusively Density Reduction/Groundwater Resource and Resource Protection Areas and Transition Zones. Petitioners have failed to prove to the exclusion of fair debate that the Amended Plan is internally inconsistent. Limiting residential densities to 1:10, FLUE Policy 1.4.3 also indicates, among other things, that "[l]and uses in [the Density Reduction/Groundwater Resource] areas must be compatible with maintaining surface and groundwater levels at their historic levels." Nothing in the policy implies that this requirement is suspended if and when the area is converted to potable water production. As a practical matter, the County cannot ignore the vital interrelationship between the water table aquifer and nearby wetlands without risking the destruction of the water table aquifer as a source of potable water. Acknowledging the interrelationship between the water table aquifer and nearby wetlands, Conservation Element Objective 84.3 requires that land development "protect the values and functions of wetlands, and, to the maximum extent possible, avoid the drainage, filling, isolation, and excavation of wetlands." Conservation Element Policy 84.3.3 discourages access roads and land development in Resource Protection Areas and Transition Zones. These provisions are not frustrated by a designation of surrounding areas at a density of 1:10 with the possibility of wellfield development. Again, the long-term viability of any wellfield on the Property is dependent upon the preservation of prevailing wetland water elevations, as well as the maintenance of adequate natural recharge areas. Community Facilities Element Objective 41.2 is for County staff to review technical data concerning groundwater recharge areas in Lee County and propose modifications to the FLUM as necessary to protect or improve areas of groundwater recharge. Community Facilities Element Policy 41.2.1 requires the County, based on the best available technical data, to designate areas for future potable water supply and to preclude incompatible land uses. Community Facilities Element Policy 41.2.2 merely identifies the new Density Reduction/Groundwater Resource designation, which shall be applied to "protect the county's groundwater resources and principal recharge areas." As discussed above, nothing in FLUE Policy 1.4.3 or the designation of the Property as Density Reduction/Groundwater Resource conflicts with the provisions of the Amended Plan set forth in this paragraph. The water table aquifer under the Property is the site of groundwater resources and the available recharge is relatively good given the undisturbed state of the land. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments, Amended Plan, or adoption process is inconsistent with Regional Plan Policies 8.B.3, 10.A.2, 10.A.3, 16.A.3.a, 16.A.3.c, 16.B.1.a, 25.C.2, 25.C.3, and 25.C.4. The cited provisions from the Regional Plan involve protecting various natural resources, such as wetlands and groundwater, planning for a mixture of land uses, and providing effective public participation in the planning process. For the reasons set forth above, Petitioners have failed to prove to the exclusion of fair debate that the Plan Amendments are inconsistent with the State comprehensive plan provisions, which involve the protection of wetlands and protection and restoration of wetland systems.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order dismissing the Amended Petition of Petitioners. ENTERED on December 16, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on December 16, 1992.
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.
