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.
The Issue The issue for consideration in this hearing is whether the Respondent, W. B. Persico, should be issued a permit to construct a commercial marina as described in the Department's Intent to Issue, in Class III waters of the state in Charlotte County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Burnt Store Isles Association, Inc., was an association of property owners whose property is located in the Burnt Store Isles subdivision located in Charlotte County, Florida. The applicant, W. B. Persico, is the owner of a piece of property located adjacent to the subdivision and applicant for a permit to construct a marina on his property. The Department of Environmental Regulation is the state agency responsible for the regulation and permitting of dredge and fill activities in the waters of the state. Mr. Persico's property is located on a dead end basin canal in Charlotte County, Florida. The canal is a Class III water but is not classified as an Outstanding Florida Water. On July 31, 1989, Mr. Persico applied to the Department for a permit to construct a 75 slip, 5660 square foot commercial marina on his property within this artificial, dead end basin. Because of objections by the Department to several aspects of the proposed project, on February 27, 1990, Mr. Persico submitted a modification proposal in which he eliminated the use of pressure treated lumber for pilings, substituting concrete pilings; incorporated boat lifts in each slip; reduced the number of slips from 75 to 65; committed himself to installing a sewage pump-out facility at the site; committed to creating an inter-tidal littoral shelf planted with mangroves; agreed to face the existing vertical bulkhead seawall in the basin with rip-rap; and incorporated a commitment to include, as a part of his rental contract, long term agreements prohibiting vessel maintenance and liveaboards on boats at the site, and insuring the perpetual use of boat lifts and pump out facilities provided. He now proposes to market the marina as a condominium ownership operation. The basin in which the Persico project is proposed is 136 feet across at the entrance, (the narrowest point), and 326 feet across at the widest point. The length of the basin is more than 900 feet. The docking structure to be created will have fingers extending no more than 39 feet into the water from the existing vertical seawall. It will have a 4 foot wide walkway parallel to and 10 feet from the existing seawall from which the arms will extend 25 feet into the basin. The basin which is the proposed location for the marina is at the end of the easternmost canal in the Burnt Store Isles subdivision. It is located just west of and parallel to US Route 41, and at the entrance point, joins a perimeter waterway which meanders approximately 1 mile seaward toward a lock which joins that waterway to Alligator Creek which is an Outstanding Florida Water. The waterway from the basin through the lock into Alligator Creek and thereafter to the Gulf provides the only navigable access for most vessels moored in the Burnt Store canals and which would be moored in the proposed marina between Charlotte Harbor and the Gulf of Mexico. The lock which joints the Burnt Store canals to Alligator Creek consists of two hydraulically operated swinging gates which are operated by a boater entering or exiting the canal system. This lock was constructed as a part of a 1973 agreement between Punta Gorda Isles, Inc., a developer, and the state to prevent the construction and runoff polluted waters of the canal from freely mingling with the Outstanding Florida Water in Alligator Creek. The lock is now maintained in an open position from November 15 to May 15 because boaters complained of the inconvenience of having to operate the lock system. Available evidence indicates that a complete passage through the lock, one way when closed, takes 15 minutes. No more than 24 boats can complete a round trip in a 12 hour boating day. When the lock is open there is no appreciable delay. The residential lots which abut the Burnt Store canals are still mostly vacant. The City of Punta Gorda has assumed the responsibility of conducting a 5 year water quality monitoring program which was previously agreed to by Punt Gorda Isles, Inc. when the lock was built. The 1973 agreement was amended in 1984 to permit the operation of the lock in a closed position for an entire year if water quality monitoring should indicate a degradation of water quality in either Alligator Creek of the Burnt Store Isles canals. This has not been necessary. The Petitioners fear that pollution generated by the addition of 65 additional boats moored at and operating from the proposed marina will cause the Department to implement that clause and order the lock to operate from a closed position year round. This does not mean that the lock would not be opened for boats, but that it would be closed when not being used. Petitioners contend that the increased usage would create an intolerable traffic jam at the lock which would, for the most part, make their use of the waterway to the Gulf intolerable. Mr. Persico is a former road and bridge contractor. Though he has never owned a marina, at one time he rehabilitated one in the Chicago area. He has owned the property in question here for four years and now plans to develop a condominium ownership marina. When he decided to do so, he hired Mr. James M. Stilwell, an environmental consultant, to prepare and submit to the Department the application for the required dredge and fill permit. Initial discussions between Mr. Stilwell and the Department dealt with many environmental issues. Mr. Stilwell pointed out that the water in the canal might already be stale and avenues were explored to mitigate that problem. They did not discuss the type of docks to be installed or the potential for destruction of mangrove stands along the seawall, but even though the original plan called for the docks to be placed against the seawall, it was to be done in such a way as not to disturb the mangroves. The modified plan removing the docks to a point 10 feet off from the wall will obviate any damage to the mangroves. Admittedly, the original submittal prepared by Mr. Stilwell contained factors which were considered unacceptable to the Department. These included construction of the finger piers with pressure treated wood. To eliminate possible pollution from leaching, the pressure treated wood was replaced with a floating dock using concrete pilings. Liveaboards, and the potential contamination from that activity, have been prohibited. The provision and required use of a sewage pump-out facility should prevent any escape of polluting sewage into the waters of the basin. The use of power hoists at each slip should prevent pollution from bottom paint leaching, and boat maintenance at the marina is to be prohibited. Fueling of the vessels will not be permitted at the site thereby obviating the potential of polluting fuel spills. The construction of a 10 foot wide littoral shelf, planted with mangroves, between the dock and the sea wall will provide increased water filtration and improve water quality. It would also help the development of the fish and wildlife population and would reduce the flushing time. Air released into the water from the use of the boat lifts should add oxygen and contribute to improved water quality. At the present time, the ambient water quality in the basin, as it pertains to dissolved oxygen, is probably below standards in the lower depths of the basin, and of the outside channels as well, due to poor light penetration. The channel depth is anywhere from 20 to 25 feet. The oxygen level at the bottom is undoubtedly depleted. Mangroves are currently located along 300 feet of the 1,300 foot seawall. Mr. Stilwell's proposal, and that approved by the Department, does not call for removal of the mangroves, but they would be built around or possibly trimmed. Mr. Stilwell is of the opinion that provision for trimming of the mangroves is inherent in the granting of the permit though such permission was not specifically sought. There is no evidence to contradict this thesis. Water quality issues were raised subsequent to the filing of the original application, and the facility as now planned is designed to minimize impacts on the environment as best as can be done. Water quality would be improved, or at worst not adversely affected, by the prohibitions against liveaboards and fueling, the provision of boat lifts and a pump station, and the prohibition against other structures beyond the dock and slips. Flushing of the water is important considering the fact that the dissolved oxygen content in the water is already low. However, Mr. Stilwell is satisfied, and it would so appear, that water quality would be improved by the implementation of the proposals as included in the conditions to the permit. Mr. Stilwell, admittedly, did no dissolved oxygen tests because they were not considered as a part of the permit application. If the Department requests them, they are done, but they were not requested in this case. It is clear that the original application did not address all the environmental concerns that Petitioners feel are pertinent. Nonetheless, those items already discussed were treated, as were turbidity control during construction. As to others of concern to Petitioners, many are included in the state standards and need not be specifically addressed in the application. The Department considered the application in light of the state standards, and by the use of the conditions appended to the Intent to Issue, provided for the water quality and other environmental standards to be sufficiently addressed and met. In his February 22, 1990 letter to the Department, Mr. Stilwell directly addressed the public interest concerns including the mangroves and the construction of the littoral shelf. The Department was satisfied that the public interest criteria were met, and considered the plans to be environmentally sound. They appear to be so. Petitioners have raised some question as to the effect of the 39 foot long dock fingers interfering with navigation within the basin. Mr. Stilwell does not feel that the facility would create this problem, even at the narrowest point, and it is so found. The width of the canal there is 136 feet. The portion of the slip designed to accommodate vessels is no more than 25 feet long, and presumably, vessels of a length much greater than that would not visit the basin. Even subtracting 39 feet from the 136 feet narrow point, 97 feet of turning space remains, and this is almost four times the length of the normal vessel anticipated in the basin. Mr. Stilwell did not address the subject of the lock as it relates to navigation, but primarily as it relates to the impact on water quality and the environment. Nonetheless, he is of the opinion, and there is no evidence to the contrary, that keeping the lock open on a year round basis would not trigger a change to the ongoing program under the agreement between the state and Punta Gorda Isles and result in the lock being closed year round. Mr. Shultz, the environmental specialist with the Department, reviewed the application here initially for file completeness, and when all required information was in, made a site visit. He evaluated the application and the attachments for permitability. For Class III waters, the project must meet water quality standards outlined in the Department's rules. Only one of the water quality criteria, that of dissolved oxygen, was shown to be not met. Since the water was already below that standard, the test to be applied then is whether the project will create some improvement." In Mr. Shultz' opinion, planting the mangroves, as proposed by the applicant, does this, as does the use of the lifts. The existing mangroves will not be impacted by the project as it is proposed, and the use of rip-rap, as proposed, will provide additional surface area for organisms which will improve the water quality. When first reviewed, the Department had some concern about on-water storage of boats. These concerns were treated by the use of hoists to hold the boats out of the water when not in use, and as a result, pollutants will not be introduced by bottom paint leaching and, presumably, bilge pumping. Standard conditions included in all Department Intents to Issue, require the project to comply with applicable state water quality standards or to give assurances that such general standards for surface waters and Class III waters will be met. In this case, Mr. Shultz is satisfied that the applicant has demonstrated that water quality standards will be maintained, and there was no evidence presented by the Petitioners to contradict this. Once water quality standards are shown to be protected, then the project is balanced against the public interest criteria outlined in the statute. Here, the requirement is for a showing that the project is not contra to the public interest. It does not, because of its nature, require a positive showing that the project is in the public interest. In his opinion this project, as modified, will not adversely affect the health, safety and welfare of the public, (it will have no environmental effect on other property). It will not adversely affect the conservation of fish or wildlife in their habitats, (the planting of mangroves will provide a net improvement to species habitat in the area). The project will not adversely affect navigation, flow of water, or erosion, (the width and length of the dock system appear to pose no threat to navigation in the basin and there would appear to be no obstruction or potential therefor as a result of this project; the project is within a no-wake zone; and the size of vessels is limited by the slip size). The permit will not adversely affect marine productivity, (there is currently very little productivity in the area now since waters below 0 depth of 6 feet are already low in oxygen, and the project would, at least minimally, improve this condition). The project is permanent and would not adversely affect historical or archeological resources in the area, (there are no objects or known resources in the area, but a standard condition in the permit requires immediate notification if known resources or objects are found). The project would not adversely affect the current condition and relative value of functions being performed in the area since the area is currently a real estate development which is far from completely built. Based on his consideration of these criteria, Mr. Shultz concludes that the project is not contrary to the public interest and this appears to be a valid conclusion. There appears to be no evidence of sufficient weight, presented by the Petitioners, either through direct evidence or through cross examination of the applicant and Department witnesses that would tend to diminish the credibility of Mr. Shultz' analysis. If there are subsequent violations, the Department has enforcement action available. There is, consistent with the multiple use zoning category applied to the area across the basin from the marina, the potential for up to an additional 100 docks to be constructed in the basin beyond those treated here. Nonetheless, the Department does not consider 165 boats to be a problem either in the basin or at the lock. This is not necessarily a supportable conclusion, however. Those 100 additional docks do not currently exist and their potential should not be considered in determining whether to approve the permit under consideration here. In opposition to the applicant, Mr. Konover and Mr. Forsyth both indicated that the addition of 65 more boats would seriously overtax the operation of the lock and make it difficult, if not hazardous, to operate boats in that area between the Burnt Store Isles subdivision and Alligator Creek. Both individuals agree, and it is so found, that in general, motor boats pollute to some degree the waters on which that are operated as a result of oil leaks from engine operation, leakage of bilge oil, escape of sewage, and leaching of copper paint and other solvents. In addition, manatee have been seen in the area, and the increase of boating operations could present some hazard to the manatee population. There is, however, no indication that a manatee population is permanently in residence there or is even there frequently. It is also accepted that boat wake has an adverse effect on sea walls, and all of these factors should have been and, in fact were, considered in the analysis of the permitability of the project. The concerns of Mr. Konover and Mr. Forsyth were echoed by Mr. Gunderson who, over 30 years operating boats, has seen what he considers to be a definite lack of concern for the environment by many boaters who pump bilges directly into the water, throw debris overboard, and use detergents to wash their boats at marinas. He is of the opinion that renters of slips are generally less concerned about water quality than those who live on the water, and take a more cavalier approach to water quality standards. These sentiments are also held by Mr. Young who, over the years, has owned marinas in Connecticut and has observed the approach of nonowning slip users to the water at their disposal. His concerns could be met by the strict enforcement of standards at the marina. Mr. Powell, a nurseryman who owns the lot across the basin from the site of the proposed marina, fishes from his lot and has observed the an increase of pollution in the canal. He routinely sees floating dead fish, palm leaves, cocoanuts, bottles, slicks and other debris, and though he owns a multifamily lot, would have a difficult time putting in many slips since his lot, at the entrance to the basin at the narrow point, would be across from the slips proposed by applicant and their proximity would, he feels, hinder his ability to build out into the basin as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing Permit No. 081679445, to W. B. Persico as modified and outlined in the Intent to Issue dated March 16, 1990. RECOMMENDED this 9 day of November, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3093 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. Accepted but applicable only when the locks are closed. Accepted. - 9. Accepted and incorporated herein. Accepted. & 12. Accepted and incorporated in substance herein. 13. & 14. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. & 21. Unsupported by convincing evidence of record. Accepted as valid when the lock is operated from a closed position. However, the evidence indicates that currently the lock is left open from November 15 to May 15 of each year and this does not cause delay. Accepted if the lock is operated from a closed position. Unsupported by convincing evidence of record. FOR THE APPLICANT: 1. - 6. Accepted and incorporated herein. 7. - 15. Accepted and incorporated herein. Accepted and incorporated herein. & 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 32. Accepted and incorporated herein. FOR THE DEPARTMENT: Accepted. and incorporated herein. - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. 10. - 14. Accepted and incorporated herein. 15. - 18. Accepted and incorporated herein. COPIES FURNISHED: Joseph F. Lynch Burnt Store Isles Association, Inc. P.O. Box 956 Punta Gorda, Florida 33951-0956 Michael P. Haymans, Esquire P.O. Box 2159 Port Charlotte, Florida 33949 Cecile I. Ross, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner represents the owner of the property here involved, St. John's Riverside Estates, and was authorized by the owner to prosecute this appeal (Exhibit 19). Some years ago, circa 1960, the owner of the property dredged canals in each of the two parcels here involved, but the plug between the canals and the St. Johns River was not removed. Petitioner now proposes to remove these plugs and maintenance dredge a channel from the location of the removed plug to the St. Johns River. Spoil from the maintenance dredging will be deposited on lands owned by Petitioner. The existing canals are typical dead-end canals which are stagnant at present. By removing the plugs and opening the canals to the St. Johns River, Petitioner will improve the water quality of these canals. Developing the property along the canals as residential homesites will result in additional nutrients and pollutants entering the canals from surface water runoff. Petitioner proposes to use surface water runoff as one method of flushing the canals. Other flushing action would come from tidal flow in the St. Johns River. Although there was some conflict in the testimony regarding the propriety of using the rainfall from a twenty-five year storm event in lieu of of a one-year storm event to calculate the flushing action of the canals by rainfall, use of surface water to flush the canal appears to violate the provisions of Chapter 403, Florida Statutes, respecting water quality. As a condition to the development of the property, Respondent could require Petitioner to hold the surface water runoff in retention ponds to reduce the entry of pollutants into the river. If this was done, percolation and evaporation would further create a substantial reduction in flushing from this source. The St. Johns River is a Class III water body of the state. The water quality of the canals here under consideration are below the state water quality standards with respect to dissolved oxygen levels even using the samples taken during the winter months when dissolved oxygen levels are high. (Exhibits 1, 2 and 3). Generally, dissolved oxygen levels are lower at the bottom of such canals than at the surface. If the samples taken at the surface and bottom during the winter months are averaged for dissolved oxygen content, the result will be above the state minimum water quality standards. However, the dissolved oxygen of samples taken from the canals on May 5 and October 4, 1978, are predominately below the level of 5 mg/l prescribed as the minimum state standard. Removing the plugs would not result in satisfactory flushing of these canals by tidal action. Under the best assumed conditions, it would require 18 tidal cycles or 9 bays to flush 90 percent of the water from these canals by tidal action. An acceptable flushing rate is 2 to 3 days. These canals contain water hyacinths and grasses which increase the biochemical oxygen demand (BOD) which reduces the dissolved oxygen level. Not only do these vegetations reduce photosynthesis by shading the water from sunlight, but also when they die and fall to the bottom, they create a high BOD. Considerable evidence was presented depicting the area, the flora and fauna of the area and the present condition of the water quality of these canals. No evidence was presented to the effect that removing the plugs and allowing interchange between the low quality waters of the canals and the higher quality waters of the St. Johns River would not degrade the water quality of the St. Johns River. Also, no evidence was presented that the residential development of the area as proposed would not increase the coliform count, detergent level, or heavy metals content of the waters of the canals which would further cause a degradation of the river water if the plugs are removed and the waters of the river and canals are interchanged.
The Issue This case concerns the entitlement of Petitioner to be granted a permit to operate a .0075 MGD wastewater treatment facility with reclaimed water applied through spray irrigation. See Chapter 403, Florida Statutes, and Chapter 17- 610, Florida Administrative Code.
Findings Of Fact The exceptions filed by Cordes are deficient either in lacking materiality or in failing to cite to any Support in the record. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the Hearing Officer are not supported by competent and Substantial evidence. See, e.g., Tuveson v. Florida Governors Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). A review of the record in this case shows that, with one exception, competent and substantial evidence does support each of the findings of fact to which Cordes takes exception. Exception 1 objects that contrary to the finding in paragraph 5 of the Recommended Order, Cordes submitted the information requested by the Department, on time. The exception also urges that the Department misled Cordes, because the additional information requested by the Department to complete the first application (the short form) for renewal differed from the bases ultimately relied on by the Department in denying the application. The Hearing Officer found that the Department had denied the first application for renewal because of a delay in providing the additional information. Cordes points to no evidence in support of his exception to the finding that there was a delay. The transcript of the hearing in this matter reveals that Cordes's own witness admitted that there was a delay in providing the requested information, leading to the denial of the short-form application and a request for submittal of the long-term application, instead. As for the charge that the Department misled Cordes, Exception 1 confuses the two permit proceedings. The request for information on the short-form application is irrelevant to the denial of the long-form application at issue. The alleged discrepancy between the additional information requested and the bases for ultimately denying the application is also immaterial. The Department cannot estop itself from denying an application on one ground (on which the information originally submitted with the application is adequate) merely by requesting additional information on another ground. See generally State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). I therefore reject all of Exception 1. Exception 2 attacks the findings in paragraphs 9-12 of the Recommended Order on pollution problems resulting from Cordes's Spray irrigation System. Cordes argues that because the Department (and a complaining neighbor) allegedly suggested that Cordes change his method of spray irrigation to a garden hose and sprinkler system, the Department should be estopped from denying the permit. The testimony on whether a Department representative suggested the use of a garden hose is conflicting. Likewise, although Cordes's engineer testified that no pollution problems had resulted from using the garden hose for Spray irrigation, the engineers from the Department testified that ponding and consequent nutrient-loading problems would result from that method and had actually been observed at the facility in question. Because competent Substantial evidence Supports the findings in paragraphs 9-12 of the Recommended Order, I will not disturb them. As for the estoppel argument, that is addressed below, in the rulings on the exceptions to conclusions of law. I therefore must reject Exception 2. I accept Exception 3, which challenges the Hearing Officer's finding in paragraphs 15-18 of the Recommended Order that Cordes' expert witness stated in the first application for permit renewal that the system had a storage capacity of three days, yet testified at the hearing that the Storage capacity was Sixteen hours. Neither the exception nor the finding, however, is material to the decision in this case, because other grounds form the basis for the decision, as explained below. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Cordes's exceptions to the conclusions of law fare no better. At the outset, I note that Cordes did not number his exceptions to the conclusions of law. I shall take them up in the order in which Cordes presented them. The first such exception to the conclusions of law conclusorily asserts that the decision in State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981), is distinguishable but fails to identify the specific basis for distinguishing it. See Fla. Admin. Code Rule 17-103.200(1) (requiring that the grounds for exceptions be bet forth with particularity). The Hearing Officer cited the Anderson case in support of his conclusion that the Department did nothing to estop it from denying the application at issue. The court in Anderson noted that estoppel will be applied only rarely to the state and only in exceptional circumstances. The court set forth the general test for finding such an estoppel, requiring (1) a representation of material fact contrary to a position asserted later by the person or entity to be estopped, (2) reasonable reliance on that representation by the person claiming the estoppel, and (3) detriment to that person as a result of relying on the representation. Id. at 398. The court specifically pointed out that the state cannot be estopped through mistaken statements of the law. Id. (citing Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d 345 (Fla. 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla. 1978)). Even assuming (contrary to the finding of the Hearing Officer supported by competent substantial evidence) that a representative of the Department told Cordes at some point that the use of a garden hose would satisfy the legal requirements for spray irrigation as asserted by Cordes, that mistaken statement of law would provide no basis for estoppel. Moreover, the inadequate storage capacity of the system and its proximity to a potable well provide other grounds that require disapproval of the application. In any event, the complaint that the Department misled Cordes is contrary to the Hearing Officer's well-supported findings of fact. I reject this exception. Cordes then attacks the Hearing Officer's conclusion of mixed fact and law that the evidence presented by Cordes at the hearing did not overcome the showing of the problems associated with the lack of sufficient capacity of the storage system and the proximity of the irrigation field to a potable well. Cordes argues that the Department allows an exemption from the storage capacity requirement in some circumstances and implicitly granted Cordes such an exemption by approving the permit for the facility in 1983. But the record does not show that Cordes ever requested an exemption or even addressed the issue at the hearing. Moreover, the provision of exemptions by rule for applicants in general (who comply with the requirements for the exemption) does not demonstrate the adequacy of the storage system at Cordes's facility. Nor does the granting of a permit for the facility in 1983 necessarily imply that the Department granted any exemption for the facility. Rather, the Department may well have made a mistake of law in issuing the permit then without addressing the question of an exemption. On the record before me, and in light of the well-settled law as explained above, I cannot conclude that Cordes has shown any basis for estopping the Department on this issue. The complaint by Cordes that the Department never advised him that it would require a larger storage tank until he received the permit denial letter overlooks the existence of the rule requiring three days storage capacity. See Fla. Admin. Code Rule 17- 610.414(2)(c). The complaint that the Department did not request additional information on this point is immaterial. The information submitted with the permit application and confirmed at the hearing showed clearly that the storage capacity (sixteen hours) failed to satisfy the rule, in the absence of an exemption. I reject the exception to the Hearing Officer's conclusion on the adequacy of the storage capacity of the facility. Likewise without merit is' Cordes's exception to the Hearing Officer's conclusion that the spray irrigation field is located too close to a potable well to meet the requirements of rule 17- 610.421(3) of the Florida Administrative Code. The evidence showed that the field is only 200 feet from a potable well. Cordes's complaint that the application form did not request information about the proximity of the field to potable wells but only to shallow water supply wells of any kind is immaterial. Regardless of the form of the application, an applicant must meet the requirements of the rules to show entitlement to a permit. The Department did not deny the application for lack of information but for lack of a sufficient buffer zone between the irrigation field and the potable well. The information submitted was sufficient for the Department to determine that the facility would not meet the buffer zone requirement. Without explication, Cordes quotes from a letter granting his nursing center an exemption from monitoring requirements in 1983. Cordes fails to show the relevance of that exemption from monitoring to the adequacy of the buffer zone in question, given the specific requirements of rule 17-610.421(3). I therefore reject this final exception.
Recommendation Upon the consideration of the facts and the conclusions of law, it is, recommended that a Final Order be entered which denies the permit to operate a .0075 MGD wastewater treatment facility with reclaimed water applied by spray irrigation. RECOMMENDED this 19th day of June, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4461 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts All sentences in Paragraph 1 save the second sentence are not necessary to the resolution of the facts. The second sentence is subordinate to facts found. Paragraph 2 is subordinate to facts found. In Paragraph 3 the suggestion by Dr. Nayak that he does not believe that the treatment plant is polluting at present begs the question. What is incumbent upon Petitioner is a requirement that the facility meet the rules. It does not. Likewise, remarks attributable to Mr. Reining to the effect that he saw no problems at the time of his visit does not supply an adequate answer to address reasonable assurances. Paragraph 4 in discussing the opinion held by Mr. Morrissette about whether he would have permitted operation in 1983 is not relevant. What is relevant is whether the most recent application should be granted. It should not. Paragraph 5 is subordinate to facts found except to the extent that it suggests that reasonable assurance has been given. In that respect, it is contrary to facts found. Paragraph 6 is recitation of testimony. It is not fact-finding. Paragraph 7 is unacceptable in that it does not address inclement conditions. It also fails to recognize that the present disposition of the effluent is not uniform. Paragraph 8 has been addressed by consideration of the testimony de novo. This clarified that the purposes of the final hearing was to consider the case de novo as opposed to appellate review of the agency's preliminary response to the application. Likewise, in Paragraph 9 although it would have been advantageous to have the wetted area better described in the attached map, that was clarified at hearing and has been reported in the fact-finding set forth in the Recommended Order. As to Paragraph 10 the explanation of the use of Rule 610.423, Florida Administrative Code, is set out in the fact-finding and conclusions of law in the Recommended Order and puts to question the applicant's response to the requirements in that rule. As to Paragraph 11 the reference to Rule 610.423, Florida Administrative Code, is not the critical rule that pertains to potable water wells. That requirement is announced at Rule 17-610.421(3), Florida Administrative Code. Concerning Paragraph 12 in the same way that it would have been helpful for the applicant to designate the wetted area, it would have been helpful for the [agency to remind the applicant to make that designation. That failing does not preclude consideration of those matters at hearing and that was done. Paragraph 13 is subordinate to facts found with the exception of reference to Mr. Morrissette in his lack of licensing in Florida. That lack of license does not preclude his testimony. Paragraph 14 is subordinate to facts found with the exception that suggestion by Dr. Nayak that there is an even distribution by the use of a hose is rejected. Paragraph 15 as described in the fact-finding the resort to the above- ground spray heads can be had absent problems with the sizing in the reclaimed water storage system. Paragraph 16 is addressed in the Recommended Order. Paragraph 17 is addressed in the Recommended Order as is Paragraph 18. Paragraph 19 is subordinate to fact found. The reference at Paragraph 20 to the exemption set out in Rule 17- 610.414(1), Florida Administrative Code, was not spoken to at hearing. The project does not contemplate the use of an alternative system which discharges surface water through deep wells. Paragraph 21 is contrary to facts found. The requirements in the rules are not site specific. Concerning Paragraph 22, while DER issued a permit under similar conditions in 1983 that does not preclude them refusing to issue the permit in 1988. Concerning Paragraph 23. The issuance of the permit in 1983 is seen as not being an exemption. It is seen as an oversight. Paragraph 24 is not necessary to the resolution of the dispute. Paragraph 25 is subordinate to facts found as is Paragraph 26. Paragraph 27 has been spoken to in the Recommended Order as has Paragraph 28. Concerning Paragraph 29, while the application does not indicate that the buffer zone must be drawn per se, it could be fairly inferred that the designation is contemplated by the rule which requires the establishment of the buffer zone. Concerning Paragraph 30 see discussion of Paragraph 29. Paragraph 31 is subordinate to facts found. Concerning Paragraph 32, whatever the application form may say the requirements of Rule 17-610.421, Florida Administrative Code, must be complied with. The same response pertains to Paragraph 33. The suggestion that the exemption from monitoring that was granted on September 2, 1983, relieves the applicant of the requirements of Rule 17-610.421, Florida Administrative Code, is rejected. Respondent`s Facts Paragraphs 1-27 are subordinate to facts found, with the exception that any suggestion that the applicant is limited in its proof to those matters set forth in the application is rejected. The applicant is allowed to present necessary evidence in furthering the request for permit at final hearing. Paragraph 28 is not accepted in that the evidence indicated that the soaker hose was the principle method but not the sole method of effluent distribution. In Paragraph 29 it is acknowledged that the Petitioner claims that the change in the method of distribution was at the instigation of a neighbor's complaint. It is also acknowledged that there was no reference to a written communication from the Respondent to the Petitioner concerning the use of the alternative means of distribution. The problems associated with this communication are spoken to in the Recommended Order and they would attend the suggestions made in Paragraph 31. As set forth in Paragraph 32 it is acknowledged that the employees cannot create the authority for changes. Nonetheless, they may mislead an applicant into a course of conduct in pursuing the application. Any problems of that sort associated with this project have addressed in the Recommended Order. Paragraphs 33-56 are subordinate to facts found with the exception that suggestion to the effect that the application constitutes the sole basis for considering the entitlement to permit is rejected in favor of a consideration of evidence presented at the hearing de novo. The discussion in Paragraphs 57-59 as to the nature of the potable water well is acknowledged. The exemption from monitoring in 1983 does not preclude the agency's ability to examine the issue in the 1989 application. It is found that the potable well is a deep well. In Paragraph 60, while it is acknowledged that the preliminary intent to deny was based upon an examination of the permit in association with applicable statutes and rules, the decision reached in this Recommended Order was based upon the evidence presented at hearing. That decision is not reached in an attempt to appease concerns by neighbors as alluded to in Paragraph 61. Paragraph 62 is considered to be argument. COPIES FURNISHED: Steven K. Hall, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Baya Harrison, Esquire 400 North Meridian Street Tallahassee, FL 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the applicant, Craig Watson, has provided reasonable assurances in justification of the grant of an Industrial Waste Water Facility permit for a rotational grazing dairy to be located in Gilchrist County, Florida, in accordance with Section 403.087, Florida Statutes, and the applicable rules and policies of the Department of Environmental Protection. Specifically, it must be determined whether the applicant has provided reasonable assurances that the operation of the industrial waste water facility at issue will comply with the Department's ground water quality standards and minimum criteria embodied in its rules and relevant policy, including draft permit conditions governing the proposed zone of discharge for the project. It must be determined whether the ground water beyond the proposed zone of discharge will be contaminated in excess of relevant state standards and criteria and whether the water quality of the G-II aquifer beneath the site will be degraded. Concomitantly it must be decided whether the applicant has provided reasonable assurances that the proposed project will comply with the Department's effluent guidelines and policy for dairy operations as industrial waste water facilities, pursuant to the Department's policy enacted and implemented pursuant to its rules for granting and implementing industrial waste water facility permits, as they relate to dairy operations.
Findings Of Fact The Respondent Craig Watson has applied for an Industrial Waste Water Facility permit to authorize the construction and operation of an 850-cow, rotational grazing dairy, with accompanying dairy waste management system, to be located in Gilchrist County, Florida. The system would be characterized by ultimate spray application of waste effluent to pastures or "paddocks" located on a portion of the 511-acre farm owned by Mr. Watson. The rotational grazing method of dairy operation is designed to prevent the ground water quality violations frequently associated with traditional dairy operations. Traditional dairy operations are often characterized by intensive livestock use areas, which result in denuding of vegetation and consequent compacting of the soil, which prevents the effective plant root zone uptake method of treating dairy waste and waste water for prevention of ground water quality violations. Such intensive use areas are typically areas around central milking barns, central feeding and watering troughs, and other aspects of such operations which tend to concentrate cows in relatively small areas. The rotational grazing dairy attempts to avoid such problems by dividing a dairy farm's surface area into numerous pastures which cows can graze upon with constant and frequent rotation of cows between such pastures. This avoids overgrazing or denuding of the cover crop upon which cows graze, which is so necessary to proper treatment of wastes through root zone uptake. A rotational grazing dairy is designed to re-cycle cow manure for use as fertilizer to grow and re-grow the forage established on the site in the paddocks or pastures. The rotational grazing method is based on the theory that nutrients from cow manure can be captured in the root zone and uptaken as fertilizer for the plant upon which the cattle graze. The waste from the barn area is collected in a waste storage pond or lagoon and sprayed as liquid effluent on the grassy cover crops established in the various pastures, as is the sludge or more solid waste removed periodically from the waste storage lagoon. The applicant, the 511 acres and the project itself would use approximately 440 acres of that tract. The site is approximately 6 miles south of the Santa Fe River. The majority of the soil on the site consists of fine sand and clay-sand type soils. The dairy would contain approximately 850 cows. Lactating cows (cows being milked) would be grazed in some 36 pastures divided by fencing. They would be grazed in the pastures approximately 85 percent of the time and lactating cows would be in the milk and feed barn located in the center of the lactating cow pastures approximately 15 percent of the time. The manure from the barn, approximately 15 percent of the total animal waste, would be collected and placed in the collection lagoon for spray irrigation on the forage crops grown in the pastures. The remaining 85 percent of the waste would result from direct deposition on the pastures by the cows. The rotational grazing dairy would contain permanent watering troughs in each of the 36 pastures. This creates the possibility of numerous "high intensity areas" or areas characterized by a high level of cattle traffic. This circumstance can result in denuding the cover crop or grasses around such water trough areas which would result in a failure, for that area, of the root-zone-uptake means of waste treatment of nitrates. In order to minimize that eventuality, the cattle would be rotated on a frequent basis from paddock to paddock in an effort to maintain nitrate balance and maintain the sanctity of the cover crop, as would the option of employing movable watering troughs so that areas of denudment of the grass or forage cover can be avoided. Manure would be flushed from the milking and feeding barn with approximately 2,000 to 5,000 gallons of water after each milking and at the end of each shift. Wastewater would then flow into a sand trap or filter and thence through an underground pipeline into an 80 foot x 84 foot concrete-lined storage lagoon. The final site of the storage lagoon has not been firmly determined. The site proposed in the application is located in part over a depression which is a suspected karst feature or area that may be subject to sink hole formation. Therefore, consideration should be given locating the waste lagoon so as to avoid that depression and the permit should be conditioned on installation of the lagoon so as to avoid known karst features. Effluent from the storage lagoon would be applied to 245 acres of pasture with a movable spray gun. The settled sludge from the lagoon would be spread on the same land periodically. The primary grass crop on the site intended for cattle forage would be Coastal Bermuda grass. Coastal Bermuda grows through a large part of the year and is normally dormant, in the climate prevailing in the Gilchrist and Alachua County area, from mid-October until early March. There would thus be little nutrient uptake during that time but to off-set that dormant state rye, wheat, rye grass, sorghum and other small grains could be grown on the site during the winter months in order to continue the waste treatment function of the cover crops. MANAGEMENT PLAN The Department currently does not have in effect a specific rule requiring dairies in north Florida to obtain permits to construct and operate per se, although such a rule does prevail for dairies in the Okeechobee Basin in south Florida. Since 1990, however, the Department has, by policy, required permits for new dairy facilities in the Suwannee River Water Management District as industrial waste water facilities. This policy is derived from the general regulatory authority contained in Section 403.087, Florida Statutes, and Chapter 62-670, Florida Administrative Code.1 The Department policy is described in a letter in evidence from the Department to applicant Watson containing the required conditions on any grant of the permit, to which the applicant has agreed. Those requirements are as follows: Management Plan A site-specific plan, with design calculations, providing for collection, storage and disposal of all wastewater from milking parlor and of runoff from the 25-year 24-hour storm event from all "high intensity" areas within the dairy farm. The calculations should include stormwater computer model SCS TR-55 or similar. Supporting documentation for the plan shall include but not be limited to the following: Water budget and balance, detailed and itemized. Nutrient budget, including wastewater and solids management. Crop management plan with projected crop nutrient uptake rates. Herd management plan, including locations of barns, travel lanes, feed areas, pastures, and management of dry cows and heifers. Treatment and disposal system details, construction details and methods, pumping systems and capacities, irrigation system details, lagoon design and capacity, and site plans. Ground Water Monitoring Plan Determination of ground water depth, variability and direction(s) of flow. Topographic site plan which includes the location of facility property boundaries, sinkholes and cooling ponds. Ground penetrating radar (GPR) if located within Suwannee River Water Management District. Site borings for determination of soil properties, depth and extent of low permeability zones, and confirmation of GPR results. Proposed locations, construction, and development criteria for monitor wells. Inventory of potable wells within 1/2 mile of site. Determination of current ground water quality and compliance. Such plan shall be prepared in accordance with the standards of the USDA NRCS, at a minimum, and shall include detailed instructions for construction, operation, and maintenance of wastewater/runoff collection, storage and disposal systems. DEP Exhibit 1. The various expert and fact witnesses for the Respondents described in their testimony the constituency of that Management Plan and the reasons, within their various scientific discipline areas and their personal factual knowledge concerning why it should be required for the site and project at issue. The 850-cow herd which would be contained on the proposed dairy consists of 550 lactating cows which are milked on a daily basis but also contains 80 dry cows and 220 heifers. Thus some 300 cattle on the dairy will not be milked at any given time and consequently will not contribute to use of the high intensity barn area and the waste collected in the anaerobic lagoon to the extent that those non-milking cattle are not fed and watered in the central barn area. Their waste would more typically be deposited directly on the pastures by those cattle themselves. 10 The project is proposed to provide for on-site containment of all wastes generated by the dairy. There will be no discharge of effluent or other pollutants from the dairy to "waters of the state." The proposed permit requires that no surface water runoff be permitted from the dairy site. The anaerobic or waste collection lagoon is designed to contain all effluent from the milking barn and other high intensity cattle areas in the event of a 25-year, 24-hour storm occurrence. Additionally, a safety factor of one-foot of "free-board" or additional wall height on the anaerobic lagoon is to be provided as an additional safety factor over and above the level expected to be achieved by the above-referenced storm event. The adequacy of the design capacity of the lagoon system is not in dispute. The proposed project and design calls for four monitoring wells to be located along the northern boundary of the property, which is essentially co-extensive with the boundary of the discharge zone at issue. There would be three compliance wells and one background sampling well. The Department's expert geologist, Mr. Davis, was of the belief that an intermediate monitoring well would not be necessary since the four wells would in his view be sufficient to enforce water quality standards. Those wells are located down-gradient according to the known direction of the ground water flow underneath the site, as required by Rule 62-522.600(6), Florida Administrative Code. Although no intermediate wells are provided for by the plan, they have been required at the other two rotational grazing dairies already permitted by the Department in the Suwannee River Water Management Region at least one of which was within a mile of the outstanding Florida water of the Suwannee River. Intermediate monitoring wells at other dairies have shown increased levels of nitrate, although there is no evidence to show that nitrate levels have exceeded state standards at the boundaries of those dairies or their discharge zones. In any event, however, the totality of the expert testimony demonstrates that intermediate wells would provide an efficacious early warning system to predict increases in nitrate contamination. Thus adjustments in the waste and commercial fertilizer nitrate application could be made so that prevention of violation of nitrate standards, by the time waste water migrated to compliance wells around the boundary of the site, could be effected. This would have a substantial predictive value to avoid future nitrate contaminant violations before they occur and they should be installed as a condition on permitting. The proposed dairy design and operation involving rotational grazing is undisputed to be more beneficial to environmental water quality considerations than a traditional cattle confinement type of dairy. The rotational grazing dairy is characterized by cattle spending minimal time in high intensity milking, feeding, and watering areas. Additionally, there will be a significantly lower level of nutrient loading on the pastures with little accumulation of effluent on the land surface. In fact, the deposition of waste through spray irrigation and through the urination and defecation of the cattle directly will still result in a deficit in nitrates needed for adequate plant growth of the grass, and other crop, ground cover necessary for feeding the cattle and making the operation succeed in a waste treatment sense as well. Consequently, it will have to be supplemented by the addition of some commercial fertilizer, the costs of which will result in a natural incentive for the farmer/applicant to ensure that the nutrient loading on the pastures is at a low, environmentally acceptable level in terms of potential contamination of ground water. The proposed dairy has been demonstrated to be consistent with the Natural Resources Conservation Services' requirements and policies concerning dairies and rotational grazing dairies. It is also undisputed that phosphorus is not of an environmental concern with this application and project. There is sufficient iron and aluminum coating on the soils involved so that excess phosphorus will be retained on the site and it is undisputed that nitrogen is the only limiting factor in the design of the dairy. NITROGEN BALANCE The specific concern with regard to the application and the dairy operation is nitrate leaching below the root zone of the crops grown on the surface of the dairy. The dairy is designed to use nitrogen and nitrates by growing crops in the pastures which will then be eaten by the dairy cows, so that the nitrogen is re-cycled with the resulting animal wastes being used as fertilizer for the same grass or crops which the cattle continuously graze. It is anticipated that the amount of nitrogen produced by the dairy cows will be insufficient to optimize that plant growth. Therefore, additional fertilizer will be required to be applied to the land surface in the pastures at times. The additional nitrogen fertilizer will only be applied when testing of soil, and particularly plant tissue analysis, which will be done a regular basis, shows that application of commercial fertilizer is needed to supplement the natural cattle-waste nitrogen. Nitrogen is a concern because if too much of it is applied to the land surface, it may leach below the plant root zone and eventually migrate to ground water. Nitrogen in high concentrations can be potentially harmful to human health, so state drinking water standards have been established for nitrogen with regard to the issuance of industrial waste water permits. The state drinking water standard for nitrate is ten parts per million at the zone of discharge, that is, the zone of discharge into the ground water aquifer. The dairy is designed in such a way that nitrate levels will not exceed water quality standards. The design is determined by reviewing nitrogen balances and making sure that excess nitrogen will not leach past the root zone. The engineers evaluating and designing the project for the applicant, and testifying concerning it, arrived at a "mass balance" to estimate the nitrogen amounts on the site. This mass balancing is required by the Department in the required estimating of the pounds of nitrate leachate. Nitrogen can be removed from the dairy operating system through atmospheric losses or "volatilization" particularly from the urine component of nitrogen application. It can be removed through milk losses, whereby nitrogen is removed from the digestive system of the cattle through its being bound up to some extent in the milk produced by the cattle and sold off the dairy site, as well as some minimal leaching of nitrate through the soil. The nitrogen that is not removed by volatilization to the atmosphere (excluding the small amount re-deposited by rainfall) will be cycled through the cows and the crops along with any supplemental nitrogen applied from time to time in order ensure optimal plant growth. The mass balance, or amount of pounds of nitrate in the leachate, was determined by considering the amount of water flowing through the system. The re-charge rate was established by the applicant's engineer Mr. Holloway to be 17 inches. This means that there will be 17 inches of rainfall leaching below the root zone of the cover crops to reach ground water. The re-charge rate can be determined by computing the average of the evapo-transpiration and average rainfall and subtracting the difference. It can also be calculated by employing computer models such as the "GLEAMS" model. Mr. Holloway, the applicants engineer, used both sources or methods and reached the figure 17 inches. The GLEAMS model is a computer model that uses local data to determine water budgeting and recharge rates. Mr. Holloway also used a 50 percent volatilization rate for the nitrate losses when determining his mass balance. The applicant's experts also considered the plant uptake rates and concluded that the uptake rate would be between 500 and 700 pounds of nitrogen uptaken per year, per acre, by the plant cover. In order to be conservative and to install a sufficient safety factor in the system to avoid overloading it with nitrates and endangering ground water quality, they employed a lower uptake rate in their calculations and recommendations to the applicant, and thus to the Department, as to the amount of nitrogen applied per acre, per year, from all sources to only be 400 pounds. The conditions imposed by the Department in the "free-form" consideration process and draft permit thus limits the total pounds of nitrogen permissibly applied to this site to 400 pounds per acre, per year. Those 400 pounds of nitrogen are represented by 260 pounds applied from manure from the livestock and no more than 140 pounds applied from commercial fertilizers purchased by the farmer, Mr. Watson. The 400 pounds of nitrogen per acre, per year, as a condition on the permit is less than that allowed at the other rotational grazing dairies previously designed by Mr. Holloway and approved. Additionally, Mr. Cordova of the Department established that there are no rotational grazing dairies that have a higher nitrogen deficit than the Watson dairy. This further provides a significant safety factor not present in other approved dairies. Atmospheric losses of nitrogen up to 80 percent have been documented with similar dairy operations. Atmospheric losses can occur through both volatilization and de-nitrification. Volatilization is the process where nitrogen is removed from the system by the ammonia in the waste products, changing into a gaseous state and migrating into the atmosphere as a volatile gas. De-nitrification is the process where microbes, principally in the absence of oxygen (anaerobic) reduce nitrates to nitrogen gas and to possibly N2O, which is a volatile, and then allow it to escape into the atmosphere. The applicant has agreed, as a condition to the permit, to apply soil testing and crop tissue analysis as well as quarterly reviewing of the monitoring wells before he determines to supplement the natural fertilizer deposited from the animals with additional commercially purchased fertilizer. The commercially purchased fertilizer would represent a substantial investment in purchase costs and in labor costs for its application. This is an additional safety factor because the applicant clearly would not have an interest in applying any more fertilizer than was absolutely needed to secure optimum plant growth for grazing purposes and nitrogen uptake or waste treatment purposes. This is a further method which will prevent excessive nitrate nutrients from being deposited on the site and possibly into the ground water. Dr. Bottcher, an expert witness for the applicant, testified that he expected nitrate levels at the zone of discharge within the boundaries and beneath the surface of the dairy farm to be between 4 and 6 parts per million. Mr. Holloway expected within a reasonable degree of certainty that on a long term average, with about 4,000 pounds of nitrate leaching below the root zone system, that the concentration directly below the farm beneath the root zone would be between 2 and 3 parts per million. Indeed, the proposed operation would be similar to the existing condition at the Watson farm involving grazing beef cattle on a system of pastures, with row crop operations. Row crops typically have a higher impact of nitrates than the proposed dairy operation would have and beef cow grazing would have a similar impact, although it would be slightly less. Thus the proposed operation is similar in its nitrate impact to the existing conditions at the site. Moreover, the applicant is limited by the permit conditions already agreed to, to spray manure on the spray field area at the rate of less than one half of an inch. The spraying to that limitation would probably take from two to five hours per week. One of the important safety mechanisms in achieving a nutrient balance on the dairy site and in its operation, so as to ensure that ground water quality violations do not occur, is the application rate of nitrate to the land surface. As shown by Dr. Bottcher's testimony, the farmer may increase crop production by applying more fertilizer during seasons of heavy growth of the plant cover. The application rate can then be decreased when there is less growth and, therefore, less need for nutrients to grow the cover crops. A smaller application rate will increase the volatilization rate by avoidance of the infiltration of the nitrate bearing effluent into the soil through hydraulic action and through the saturation mechanism, since a smaller amount of application would tend to leave more of the effluent within less than one inch of the land surface, or on the land surface, thereby allowing it to be volatilized more readily. This circumstance will decrease the amount of nutrient leaching below the root zone and thus prevent the nitrates from being transmitted to the ground water. A number of crops can be grown successfully and appropriately on the site in order to provide the grazing forage needed for the operation of the dairy. Examples, depending upon the season of the year, are rye, wheat, grain sorghum, and various grasses, including Coastal Bermuda grass. Coastal Bermuda is a perennial grass, high in protein available for livestock and is already established on the site. The various other crops can be grown as well and some that grow in the winter months, such as rye, will be grown by Mr. Watson. The growing of the various cover forage crops are limited by the limitation in the permit which is conditioned on maintaining a cover crop growth situation where the average annual uptake is at least 400 pounds per acre (the evidence reveals that in reality it would be more on the order of 500 to 700 pounds per acre, per year). Dr. Pollman and Dr. Upchurch, expert witnesses for the Petitioners, question the nitrogen balancing and leachate predictions arrived at by the applicant's expert witnesses, as well as those of the Department. Neither Drs. Pollman nor Upchurch had any prior experience or expertise with testing for a nitrogen balancing on rotational grazing dairies. Instead they utilized various models to attempt to predict leachate amounts. Dr. Pollman's modeling utilized formulas prepared by the applicant's experts. His modeling showed a high percentage of the predicted outcomes to be actually within regulatory standards for nitrates, even though all of his estimates failed to take into account the variable inclusion or application rate for nitrogen through commercial fertilizer which will only be applied on an as needed basis after appropriate plant tissue and soil tests show that commercial fertilizer should be applied. Likewise, Dr. Upchurch's modeling results were also mostly within acceptable standards for nitrate concentrations unless one assumes that the nitrogen application rates exceed the amounts allowed under the permit, which will not be the case in reality because obviously the permit limits must be complied with. Dr. Upchurch also utilized a model, "NLEAP," which was neither designed nor calibrated to be used for predictive capabilities and is still considered experimental by the NRCS. WASTE LAGOON The applicant proposes to construct a waste storage lagoon designed to hold seven days' waste water generation capacity or 26,000 gallons per day. In addition to that required storage for a 25-year, 24-hour storm event, an additional safety factor of one foot of free board has been designed into the lagoon system. The lagoon will be constructed with 6 inch thick, fiber-reinforced concrete. No evidence was offered by the Petitioners that the lagoon design itself was faulty or inappropriate, rather the Petitioners contend that there is a chance that a surface failure beneath the lagoon, by the result of a sink hole developing, particularly in the present preliminary location proposed for the lagoon, could cause the lagoon to crack. The applicant will, however, in order to ensure that the area is suitable for the lagoon have the appropriate engineer "over-excavate" the site in order to minimize the change of a sink hole developing. Additionally, soil borings will be done beneath the surface to provide additional assurance that the lagoon will not fail due to voids or sink holes being present beneath it. Because the lagoon is presently preliminarily located in an area that appears to embody an old, inactive karst depression, consideration should be given to altering the site of the lagoon slightly so as to avoid this area, after soil borings and other investigation is done to ascertain whether the area poses a risk of lagoon failure. Additionally it must be pointed out that because the applicant would need to expend a substantial investment to rebuild the lagoon in the event of such a failure, he has a strong incentive to locate the most suitable geological placement for the lagoon in any event. GEOLOGIC SITE CHARACTERISTICS It is undisputed that the geology underlying the surface of the dairy site is karst in nature: that is, it is characterized by a sub-strate of limestone which can, through the dissolution process caused by percolating water, be susceptible to fissures, voids, underground conduits and sink holes. This, however, is true for essentially all areas used for agriculture in the Suwannee River Area Water Management District, the area to which the subject above- referenced policy concerning installation and permitting of dairies applies. Because of the karst nature of the area, sink holes and other potential surface openings to the ground water could occur at the site. It is most significant, however, that both Mr. Holloway's and Dr. Kwader's testimony established that the soil layer at the site was more than sufficient to protect the ground water. In fact, the soil layer averages from 45 to 50-feet thick over the underlying limestone sub-strate of the Ocala Formation. Further, the proposed permit and its conditions would require a management plan which, with the conditions already placed on the permit and recommended herein, will adequately deal with the possibility of sink holes, "pipes" or "chimneys" developing on the site. The dairy design success is derived essentially from the sufficient nutrient uptake in the root zone of the plant cover, balanced with careful control of the application rates of both the natural fertilizer from the cows and the commercial fertilizer which will supplement it from time to time. Any possibility that the treatment zone for nitrates associated with the plant root zone would be by-passed by the effluent as a result of sink holes or other types of fissures developing can be resolved by proper management practices, which the conditions proposed for the permit and those recommended herein will insure are implemented. For instance, if sink holes, other depressions or holes develop in the site, they will be filled with soil to a depth of five feet, with an impervious clay cap on top of that and then a layer of top soil to allow for re-establishment of the root zone on the surface. The permit should be so conditioned. Moreover, if sink holes or other voids develop that are too large to be so filled and pose a risk of migration of effluent below the root zone to rapidly to the ground water, they will be fenced off and cows will not be allowed in the area. The area will be removed from the irrigation application process until repairs are made, under the presently proposed conditions on the permit. An additional condition should be imposed whereby any sink holes or other voids or similar breaks in the ground surface which pose a risk of effluent rapidly migrating to ground water should be bermed around the circumference to prevent effluent or stormwater laden with nitrates from the land surface from entering the fault or cavity. The applicant is required under the proposed conditions on the permit to report to DEP any sink holes which develop within a certain period of time in the barn area. Cows are not to be permitted to enter into any of the sink hole areas by additional fencing, if necessary. If sink holes develop in the spray field there can be no discharges of fertilizer or irrigation on those areas until the sink holes have been repaired in the manner referenced above. The phosphate pits on the site will also be fenced to prevent discharges past the root zone potentially caused by cattle entering the pits. Additionally, berms are required to be constructed around the phosphate pits to prevent surface water from storm events or other means by which nitrates from the ground surface can be transported into the pits and then possibly to ground water. Any holes which may develop, also called "piping failures," around the periphery of the phosphate pits should be treated in a similar manner to prevent the migration of surface water into those holes whether or not they communicate with the phosphate pits themselves by fencing and berming. These arrangements coupled with the fact that the phosphate pits are characterized by a sufficient soil layer in the bottom of the pits between the bottom surface of the pits and the water table or aquifer will constitute reasonable assurance that the pits will not result in a conduit or path for nitrate-laden, surface water to migrate past the root zone directly into the ground water aquifer. Mr. Holloway, an engineer, testifying for the applicant conducted soil borings on the site to verify the Natural Resources Conservation Service (NRCS) surveys as accurate and to ensure that an adequate root zone for treatment purposes existed. Additionally, the NRCS did a ground penetrating radar survey or study on the property. The Petitioners also did a separate ground penetrating radar study performed by Mr. Windschauer. The Petitioners study identified a number of karst-type "anomalies" on the property. The number of anomalies located by Windschauer was not unusual for a such a karst geologic area, but, in any event, all of them had adequate soil depth to support the crops necessary to establish the root zone and maintain the nitrogen balancing. Soil borings were conducted, as well on four of the anomalies, under Dr. Upchurch's supervision. They confirmed that there was adequate soil depth to support crops and protect groundwater. The conditions already imposed on the permit to which the applicant has agreed, require a minimum of five feet of soil depth to ensure adequate treatment including the soil below the root zone and that soil depth and plant cover will have to be maintained even if repairs are necessary to karst anomalies or "sink holes," or the dairy will have to cease operation. The soil depth on the dairy is approximately 45-50 feet and the water table is approximately 55 feet below the ground surface. While the Department's expert, Mr. Davis, is satisfied that the location of the monitoring wells and the number of wells are adequate to monitor compliance with water quality standards for groundwater at the site, the draft permit conditions allow for a change in the number and the location of the monitoring wells. The evidence in the case, including that which shows that an intermediate well at another similar dairy site has shown elevated nitrate levels (although it has not been shown that other conditions are similar to those proposed in this permit application and in the evidence) would indicate that it would be prudent to install intermediate monitoring wells, upgradient, within the dairy site to serve as an early warning, predictive mechanism to avoid water quality violations at the boundary of the zone of discharge. This will allow time for steps to be taken, through various adjustments in the operation, to prevent any violations of the ten parts per million nitrate groundwater standard. The permit is recommended to be so conditioned. Dr. Kwader performed a photolinear trace analysis. He indicated that he did not find any particular linear features such as fractures. A fracture in the limestone stratum is significant in that it can provide a conduit or preferential pathway through the sub-surface rock and thus transfer contaminants from one point to another at a more rapid rate than simple percolation through soil and pores in the rocks. This could result in excessive nitrates being deposited in the groundwater aquifer before an adequate treatment time and mechanism has had its effect on the nitrates. A fracture or conduit flow will, however, cause dilution and Mr. Davis, for the Department, testified that he did not expect a higher concentration of nutrients in a fracture than in the surrounding rock. Additionally, there will be substantial dilution once the nutrients reach the aquifer and begin moving laterally. The dilution will be proportional to the water moving through the conduit, meaning that if the fracture is relatively large, then the concentration of nutrients will be proportionately smaller because of the higher volume of water. Such linear features or fractures are difficult to observe through 50 or more feet of soil existing at the site above the rock stratum and the top surface of the aquifer. Dr. Upchurch, for the Petitioners, also performed a photolinear trace analysis and identified two areas as being highly probable, in his belief, for linear fracture features beneath the farm and surrounding area. He believes there is a possibility of a number of other fractures beneath the Watson property, although the evidence does not definitely identify such nor the measures or precise locations of any such postulated fractures. The Watson property, however, is not unlike any of the surrounding karst terrain with respect to such potential linear fracture features and, in fact, much of north Florida can be so characterized. Moreover, Dr. Upchurch himself agreed that only a limited area of the Watson farm would be impacted by such features, and further, if they are present, they will not impact the nutrient balance aspect of the dairy design because it will perform above many feet of soils separating it from the fractures, if they exist. Limestone pinnacles protruding to the land surface can provide preferential pathways for water to migrate downward to the groundwater aquifer in a manner similar to that posed by a sink hole. They can also function as a break in the soil and plant root zone covering the spray effluent treatment area if allowed to remain exposed. Limestone was observed within one of the mine pits and in a sink hole. It is not clear whether it is a pinnacle which leads down to the sub-strate containing the aquifer or is merely a remnant boulder. In any event, these pinnacles or limestone outcroppings or boulders, whatever they prove to be, will not result in a preferential pathway for water to migrate to the aquifer because the management plan conditioning the permit requires that any limestone protruding to the surface be sheared off and replaced with top soil and vegetation. The permit conditions require that at least five feet of soil overlaid by vegetation must be present for all areas in the spray field. No exposed groundwater was observed in any of the sink holes. In fact the aquifer water level would be at least ten to twenty feet below the bottom of any pit or sink hole observed on the property. An additional 50-foot buffer from the property boundary surrounds all of the paddocks, providing an additional safety factor before the outside boundary of the zone of discharge is reached. The proposed dairy is located approximately six miles south of the Sante Fe River at its nearest point. The Sante Fe River is an outstanding Florida waterway in accordance with Rule 62-302.700(9)(i)27, Florida Administrative Code. The dairy site is not within the flood plain of the river and there will be no surface water discharged from the dairy, including none to the Sante Fe River. Any impact the dairy might have on a water quality in the Sante Fe River would come from groundwater flowing from the site to river. Groundwater beneath the dairy site flows first in a northeasterly direction thence apparently swinging more northerly in the direction of the river, more or less in a "banana shape" flow pattern and direction. Current permitting requirements for such a dairy require that the groundwater leaving or flowing from the zone of discharge must meet "drinking water standards." Those standards are codified in Rules 62-520.400 and 62-522.400, Florida Administrative Code. Those standards require that nitrates not exceed the standard or level of ten parts per million. Dr. Bottcher's expert opinion, which is accepted, is that the dairy design and operation will provide adequate protection to the Sante Fe River with that perameter in mind. He also established that reasonable assurances exist that the river will be adequately protected and not significantly be degraded alone or in combination with other stationary installations in addition to the dairy in question. The dairy waste management system has been established by preponderant evidence to abate and prevent pollution of the groundwater to the extent required by the applicable statutes, rules and policies, in that water or pollution will not be discharged from the dairy in violation of the above-referenced standard. Especially because of the great thickness of soil cover and because of the conditions and protective measures designed into the draft permit, and the project and recommended as conditions herein, in order to prevent effluent from bypassing the root zone treatment area due to karst features the preponderant, credible geological and hydro- geological evidence, including that of Mr. Davis, shows, within a reasonable degree of professional certainty, that there are not conditions concerning the hydro-geology or geology in the area of the site as to make it unsuitable for the proposed dairy operation in the manner conditioned and recommended herein. SECTION 120.57(1)(E) - FINDINGS The specific permitting requirements for the rotational grazing dairy at issue are embodied in a policy followed by the Department as far back as 1990. Those requirements are not contained in a Department rule. Rather, the policy is presumably enacted pursuant to the statute referenced by the parties, including the Department, in this case as the general pollution abatement statute, Section 403.087, Florida Statutes. The action of the Department in announcing its intent to grant the permit may be deemed an agency action "that determines the substantial interest of a party and that it is based on an un-adopted rule . . ." to the extent that one might deem this policy, consistently followed in a substantial area of the state since 1990, an un-adopted rule for purposes of Section 120.57(e)(1), Florida Statutes. In that context, the agency must demonstrate that the un-adopted rule comports with the statutory definitional of characteristics of a valid rule. Thus the agency must present proof that its un-adopted rule or "policy" would be valid as a rule. In that context the evidence adduced by the Department and indeed by both Respondents, since they presented a joint case, shows that the policy at issue is within the powers, functions and duties delegated by the legislature in Section 403.087,Florida Statutes, which is a generalized grant of authority designed to give the Department the power to regulate in a way to abate the pollution of waters of the state, including groundwater. It has also been adequately shown that the policy or un- adopted rule does not enlarge, modify or contravene the specific provisions of that law being implemented but rather provides sufficient regulatory details so that the general principals, stated in that statute, can be carried out in terms of the installation, regulation and operation of the subject dairy project. It has been adequately proven that the rule is not vague and that it establishes adequate standards for agency decisions on whether or not to permit such a rotational grazing dairy. It does not vest unbridled discretion in the agency nor constitute an arbitrary or capricious act or policy imposition, because the standards and requirements advanced by the Department as being necessary under this policy or un-adopted rule, for a permit to be granted, must, of legal and factual necessity, be predicated on competent, scientific expert and factual evidence. That has been shown, which likewise meets the requirement that the un-adopted rule be supported by competent and substantial evidence. Likewise, the evidence shows that under the circumstances, given the great public necessity in protection of the groundwater and the Floridian aquifer, that the requirements placed upon a grant of a permit for this project and the conditions placed upon its construction and operation do not impose, under the circumstances, excessive regulatory costs on the regulated person, Mr. Watson, or the governmental entity where the project is located, in other words, Gilchrist County.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered granting the permit requested by Craig Watson to construct and operate the proposed dairy waste management system in accordance with the draft permit proposed by the Department, including the general and specific conditions attached and incorporated therein and also including the general and specific conditions recommended to be adopted and implemented for the proposed system in this Recommended Order, based upon the preponderant, persuasive, credible evidence. DONE AND ENTERED this 23rd day of February, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of February, 1999.
The Issue The issue in this case is whether the Department of Environmental Regulation (Department) should issue permit number 1C53-154132 to the applicant, IMC Fertilizer, Inc. (IMCF), for the modification of an existing industrial wastewater management system by constructing additional phosphogypsum storage capacity, or whether the permit should be denied as maintained by Manasota- 88 (Petitioner).
Findings Of Fact The Parties IMCF is a Delaware Corporation properly registered to conduct business in the State of Florida, which owns real property known as the New Wales Chemical Complex located in western Polk County, Florida, approximately 5 miles southwest of Mulberry, l mile south of State Road 640, and east of the Hillsborough-Polk County line. The New Wales Chemical Complex began operations in April, 1975, and consists of approximately 1600 acres which are located within a 17,000 acre tract owned by IMCF known as the "Kingsford Mine". Generally, the distance from the New Wales Complex boundary to the Kings ford Mine property boundary is from one to two miles. IMCF produces phosphoric acid and other phosphate-related products, including animal feed ingredients, and stores the by-product called phosphogypsum within a gypsum stack or pile. The Department is the administrative agency of the State of Florida having the power and duty to control and prohibit pollution of air and water in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. The Department has the authority to consider and act upon the permit application at issue in this case. Petitioner is a public interest environmental protection organization incorporated under the laws of the State of Florida as a not-for-profit corporation, is headquartered in Palmetto, Florida, and is a citizen of the State of Florida for purposes of Section 403.412(5), Florida Statutes. Petitioner has standing to maintain this action. The Application Process On or about August 31, 1988, IMCF filed with the Department an application for a permit to modify its industrial wastewater management system at the New Wales Complex by constructing additional phosphogypsum storage capacity. This permit application was assigned file number 1C53-154132. The Department requested additional information from IMCF concerning this initial application on or about September 29, 1988 and December 16, 1988, and IMCF timely responded on each occasion. On or about July 3, 1989, IMCF submitted an application supplement to the Department which substantially changed the nature and scope of its original application. The project proposed by IMCF for which it has sought the permit at issue in this proceeding is described and set forth in this supplement to IMCF's original application. The Department requested additional information concerning this application supplement on or about August 2, 1989, to which IMCF timely responded. On or about November 6, 1989, the Department filed its Intent to Issue permit number 1C53-154132, and thereafter, Petitioner timely instituted this action to challenge the issuance of this permit to IMCF. The Existing Operation At its New Wales Chemical Complex, IMCF operates sulfuric acid and phosphoric acid plants, granulated triple superphosphate and granulated ammonium phosphate plants, and a uranium recovery plant. The primary raw materials used at the New Wales Complex are sulfur and phosphate rock. Sulfur is used to produce sulfuric acid, which is then used to react with phosphate rock that has been mined by IMCF. This reaction produces phosphoric acid which is then further processed into fertilizer products and animal feed ingredients. Phosphogypsum or gypsum is a byproduct from the production of phosphoric acid. Approximately five tons of gypsum are produced for every ton of phosphoric acid which is produced. Gypsum is slurried and transported to an existing gypsum stack where it is allowed to settle in settling compartments. IMCF's existing gypsum stack is approximately 132 feet high, and it is reasonably estimated that it will reach its maximum useful height of 200 feet by May, 1992, at IMCF's current phosphoric acid production rate of 1.7 million tons per year, which results in approximately 8.5 million tons of gypsum per year. As the gypsum stack grows in height, the surface area on top of the stack that is available for gypsum deposition and management decreases, and at approximately 200 feet above ground surface there will be insufficient retention time for the slurried gypsum to settle out and to be used in continued construction of the stack. Therefore, when IMCF's existing stack reaches 200 feet in height, operations at the New Wales Complex will have to cease unless an alternative gypsum storage location is authorized through the issuance of the permit sought in this proceeding. The existing gypsum stack is unlined. In addition to the storage and management of gypsum, the existing gypsum stack at the New Wales Complex is also used to store rainfall that may fall on the stack and cooling pond. This storage capability allows IMCF to avoid discharging pond water to the surface waters of the State during heavy or extended rainfalls. During low rainfall periods, stored rainwater can be used to supplement pond water, and thereby reduce IMCF's need to pump fresh water from the aquifer to meet its cooling and scrubbing needs. Additionally, during the hot summer months, the area on top of the stack is also used for cooling purposes. A cooling pond approximately 247 acres in size is located to the immediate south of the existing stack, with additional cooling channels encircling the stack on its remaining three sides. This existing, unlined cooling system encompasses a total of approximately 281 acres, and recirculates approximately 150,000 to 170,000 gallons of water per minute through this entire cooling system and back to IMCF's production plants for reuse. Approximately twelve uncapped recharge wells, each eight inches in diameter, were drilled in the area under the cooling pond during mining operations. These recharge wells were broken off during mining operations, and it is estimated that these wells have been filled to the top of the confining layer above the Floridan aquifer by sand and debris. The production of fertilizers generates heat which must be dissipated through cooling, and gasses which must be cleaned by "scrubbing" them with water. IMCF's cooling system at the New Wales Complex carries out these cooling and scrubbing functions. Pond water is used to transport gypsum in slurry from the phosphoric acid plant to the top of the gypsum stack, where it is directed to one of three settling compartments on the top of the stack. Settled gypsum is periodically dredged out, and used to build up the diked area around the edges of the stack. The slurry water is then decanted to the perimeter ditch and returned to circulation. Waters collected at the New Wales Complex which do not come in contact with fertilizer products or raw materials are collected on the site and directed to an impoundment area referred to as "A-11" for recirculation and reuse in the plant. Excess noncontact water may be periodically released to the Kings ford Mine recirculating system during heavy or extended rainfall, and is managed separately from pond water. A 90 acre emergency holding pond is located to the west of the cooling pond and to the south of the production facility. However, IMCF has never had to discharge excess pond water into this emergency area. This emergency holding pond is unlined. IMCF's existing facility is a zero discharge to surface water facility. Other phosphate companies discharge pond waters to surface waters after treatment with calcium oxide or calcium carbonate. This existing facility can also store, without surface water discharge, rainfall and other waters in excess of Departmental and federal effluent guidelines Because IMCF's existing, unlined gypsum stack and cooling pond system release some seepage to the ground water, on or about September 8, 1989, IMCF and the Department executed a Consent Agreement in OGC Case Number 89-0657 pertaining to the operation of the existing gypsum stack and cooling pond, which states in pertinent part: Cooling pond water on the Site contains concen- trations of various constituents in excess of primary drinking water standards. (Finding 4) Contaminant concentrations in groundwater samples collected from the surficial aquifer and the uppermost segment of the intermediate aquifer system at certain locations on the Site are elevated with respect to unaffected groundwater quality. Monitoring well SA-4 . . . is located approximately 400 feet from the cooling pond channel and has indicated concentration levels of certain constituents in excess of primary and secondary drinking water standards . . . Analyses from monitoring well SA-6, located 1600 feet downgradient from well SA-4, have recently indicated sulfate and TDS concentra- tion levels slightly exceeding secondary drinking water standards. Therefore, the vertical and horizontal extent of groundwater contamination and the rate and direction of contaminant transport in groundwater require additional evaluation. (Finding 5) Some evidence indicates elevated contaminant concentrations above background levels in groundwater samples collected from one of seven monitoring wells that draw water from the lower segment of the intermediate aquifer system in a location adjacent to and down- gradient from the cooling pond. Therefore, additional evaluation of the potential impact of abandoned recharge wells underlying the cooling pond is required. (Finding 6) IMCF has collected ground water quality data pursuant to the requirements of Ground Water Monitoring Plan Permit No. MP53-75181, currently in effect, as well as data in connection with this expansion project. This data indicates that two monitoring wells have been impacted by seepage from the existing gypsum stack. Well No. NWC-2-S2A, located approximately 400 feet to the west of the edge of the gypsum stack, contains ground water with elevated levels of sodium in excess of concentrations set forth in applicable ground water quality rules, and has recorded sulfate levels which exceed standards. Well No. SA-4, located approximately 700 feet west of the existing stack, reflects concentrations of sodium, gross alpha, and radium-226 in excess of concentration limits set forth in applicable rules, and has also recorded exceedences for sulfate, total dissolved solids and iron. These two wells are located within the New Wales Complex, and draw water from the upper portion of the intermediate aquifer, probably being impacted by seepage from the stack westward through this zone. In addition, data collected from IMCF monitoring well NWC-5-I4A, located immediately west of, and adjacent to, the cooling pond, show elevated levels of temporary dissolved solids, arsenic, sulfate and sodium above background levels, although the sodium concentrations do not exceed the maximum concentration limits set forth in applicable Departmental ground water quality standards. This well draws water from the major producing zone of the intermediate aquifer system. Finally, water quality impacts are shown as a result of analysis of ground water samples taken from three other wells at the New Wales Complex, wells NWC-2-S1 and NWC-2-SIA which draw water from the surficial aquifer, and well SA-6 which draws water from the uppermost portion of the intermediate aquifer system. However, based upon the evidence and analysis presented by Dr. John Garlanger, who was accepted as an expert in ground water quality impact assessment, and notwithstanding the contrary opinion expressed by Steven R. Boyes, who was accepted as an expert in hydrogeology, it is likely that these impacts come from a source other than the gypsum stack. Based in part upon the findings set forth above, the Consent Agreement provides that IMCF will implement a series of stated corrective actions, including additional monitoring activities, and that IMCF will evaluate pertinent primary and secondary drinking water standard constituents in all potentially affected aquifers within, and/or beyond, its zone of discharge. Once this is done, IMCF may be required to evaluate various remedial action alternatives, and to ultimately implement a remedial action plan. The Consent Agreement also authorizes IMCF to install a slurry wall to the north and northeast of the existing stack to limit any seepage in that area. IMCF has committed to the Department that if ground water quality monitoring indicates significant contamination is approaching the limits of the IMCF production plant, it will also install a slurry wall along the western edge of the plant in order to intercept any such contamination in the surficial and upper intermediate aquifer systems and contain it within IMCF's property. Dr. Garlanger performed a modeling analysis concerning the impact of the existing cooling pond and stack upon the water quality of the major producing zone of the intermediate or Floridan aquifer, given that these existing facilities will not be closed, but will remain in use in connection with the new stack for an additional twenty years beyond 1992. Based upon that analysis, it is found that any seepage through the upper confining unit from either the existing stack or pond would not cause a violation of primary or secondary drinking water quality standards. In addition, even if the twelve recharge wells underlying the cooling pond area were each leaking at the rate of one gallon per minute, which was shown to be an overestimate of any reasonable leakage rate, Dr. Garlanger concluded that insignificant impacts would result in the major producing zone of the intermediate and Floridan aquifer systems. The precise vertical or downward extent of the zone of discharge has not yet been determined for the New Wales Complex, although a zone of discharge horizontally to the IMCF property line has been established. However, the Department has reasonably concluded that the water quality impacts at the site resulting from the existing stack and cooling pond, referred to above, are not violations of IMCF's current permit, or of applicable rules and standards. The Department does not currently have sufficient information to determine what, if any, remedial action would be appropriate for impacts resulting from the existing stack and cooling pond, but this information will be developed pursuant to the Consent Agreement. The Department has not ruled out any eventual remedial action alternative, including closure of the existing gypsum stack. The Proposed Project IMCF proposes to construct an additional 415 acres of gypsum storage capacity, including permimeter ditching, in a total project area of 520 acres which will be located immediately south of, and adjacent to, the existing cooling pond that is used in connection with the existing gypsum stack or pile. It is reasonably estimated that this new stack will be in operation for twenty years. A 60-mil high density polyethylene liner is to be installed over the entire base area, and the upstream slope of the perimeter dikes. The proposed liner will be chemically and physically compatible with conditions that will be encountered in the expanded gypsum stack area, and will be of sufficient strength to prevent failure during installation and operation. Textured liner material will be used around the outer edges of the stack area underlying the projected stack slope, while smooth material will be used under the remainder of the stack. The textured material provides an additional safety factor to prevent slope stability failure. IMCF's proposed gypsum stack is designed with a factor of safety significantly greater than that which is provided in other stack projects. The liner material will be delivered to the site in sheets which will be rolled out on site, overlapped, and bonded with adjacent sheets using an extrusion-fusion welding process. IMCF will follow an extensive quality assurance and control program to insure that the contractor installing the liner follows all required procedures, including inspections and evaluations, random destructive testing, and vacuum testing of every inch of liner welds. Three concentric rings of perimeter gravel drains with polyethyline collector pipes will be installed over the liner and beneath the projected slope of the gypsum stack in order to reduce the hydraulic head on the liner and improve the stability of the stack. The materials used in the drain system will be compatible with the environment which they will encounter in the gypsum stack. IMCF proposes to separate the existing cooling pond and the proposed new gypsum stack with a 2.5 foot thick soil-bentonite slurry wall constructed along and within the entire length of the northern perimeter dike of the expansion area, and keyed approximately 30 feet into the underlying bedrock- bedclay complex. This slurry wall will provide a barrier to lateral seepage from the existing cooling pond into the expansion area, and will effectively function as a vertical liner. Materials used to construct the slurry wall will not be adversely impacted by seepage from the cooling pond. Two culverts for routing the seepage, runoff and decant water from the gypsum stack perimeter collection ditch into the existing cooling pond are to be installed. An additional syphon spillway is to be constructed at the southwest corner of the existing cooling pond and directed into the emergency holding pond. There is no proposal to cap the twelve uncapped recharge wells located under the existing cooling pond. The existing cooling and emergency holding pond will remain in operation with the new proposed gypsum stack. Gypsum will be slurried by pipeline from the phosphoric acid plant to the proposed new stack after its completion, where it will be managed in a manner similar to that practiced on the currently operating stack. The transport water will be returned to the cooling pond system for recirculation. IMCF proposes to use the top of the existing stack for the storage of rainfall and for cooling purposes during times of excessive heat. The geology of the gypsum stack expansion project site is appropriate and suitable for this proposed use, as established through an evaluation of regional and site-specific information, including prospecting data collected by IMCF prior to mining this area and geophysical logging information from wells that have been installed in the area. Site-specific geological tests performed by IMCF included the drilling and evaluation of five core holes around the area of the expansion project, and evaluation of the geological conditions encountered during the drilling of thirty-one ground water monitoring-wells installed in the vicinity of the proposed project area, and an evaluation of soil borings taken from within the project site. Surface depressions and lineaments shown on pre-mining aerial photographs of the area were also evaluated. The physical evaluation and examination of the former locations of surface depressions was conducted, as was a sinkhole probability assessment. The hydrogeology underlying the site of the proposed expansion area does not contain any features which would adversely affect the siting of the expanded stack in this proposed location. There are three major aquifer systems underlying the proposed project area, including the surficial, intermediate and Floridan aquifer system. The surficial aquifer, extending from the top of the water table to a depth of approximately 60 feet, contains overburden and sands that have replaced the original "matrix" formation of phosphate ore which has been mined. The intermediate aquifer system underlies the surficial aquifer, with its upper portion having very low permeability, extending approximately 125 feet in thickness, and containing some water bearing zones which are not laterally continuous in the project area. The major producing zone, consisting of sandy limestone material, is located in the lower portion of the intermediate aquifer. There is a confining unit approximately ten feet in thickness, known as the "Tampa clay", at the very bottom of the intermediate aquifer, separating it from the Floridan aquifer. The Floridan aquifer system is a highly productive limestone aquifer, several hundred feet in thickness, that is the primary source of municipal drinking water and industrial water supplies in the area. The preparation of the site will begin with the removal of various materials deposited in the area during mining operations which have already taken place, and the diversion of surface water from the area. The site will be dewatered by allowing water to flow from the site into other mined-out portions of the Kingsford Mine further to the south. This dewatering process will not discharge any water to the waters of the State. After dewatering, the site will be graded to remove any materials that could potentially puncture the liner. The presence of existing wells in the project site will also be addressed by IMCF as part of its site preparation activities. Thirty-eight wells were previously installed in the project area, thirty-three of which were recharge wells that were used to drain water from the surficial aquifer system down to lower aquifer systems prior to mining. Twenty of these wells have been physically located, and IMCF will insure that these wells are abandoned and plugged in accordance with currently applicable regulatory requirements. The remaining eighteen wells in the project area cannot be physically located and plugged because they have been destroyed or otherwise impacted by mining operations. IMCF will install circular concrete caps, three feet in thickness and of varying diameters, over the former locations of these wells which have been determined using an analysis and evaluation of historical surveys and aerial photography, as well as computer modeling. It was established through the testimony of Richard Fountain and Dr. Nadim Fuleihan, who were accepted as experts in geological evaluation and consultation, and civil and geotechnical engineering, respectively, that these caps will reliably encompass the locations of these eighteen former wells, and will, further, maintain the structural integrity and stability of the lined gypsum stack. IMCF has provided reasonable assurances to the Department that the construction and operation of the proposed additional gypsum stack will not result in discharges that will cause pollution in violation of statutory provisions or Departmental rules or standards designed to protect surface and ground water quality. As discussed elsewhere herein, IMCF will include an extensive groundwater quality containment/protection system in this project, the essential elements of which include the slurry wall, synthetic liner and underdrain system. Surface waters will not be adversely affected by dewatering of the project area prior to construction, nor by rainfall that strikes disturbed areas during construction due to the diversion of such waters into the Kings ford Mine water recirculation system, thereby preventing direct discharge to surface waters of the State. Construction of the new gypsum stack will increase the area at the New Wales Complex that will catch rainfall and direct it towards the pond water recirculation system. However, based on the evidence presented by Dr. Fuleihan, even under extreme rainfall conditions there is a very low probability that IMCF would have to discharge pond water from the emergency holding pond, and even under this unlikely condition, IMCF has the capability of implementing a program to treat and reuse pond water in its production processes, and will not have to discharge pond water to surface waters of the State. The proposed one layer synthetic liner which IMCF will install with the new stack can reasonably be expected to prevent pollution of the ground water which would violate applicable statutory provisions, rules or standards. It was established through the testimony and evidence presented on behalf of IMCF, and particularly the evidence presented by Dr. Fuleihan, that the proposed liner to be used by IMCF is at least five times more protective (less permeable) than clay liners, and eight times more protective (less permeable) than the design liner which would be required by the Department's policy statement concerning the lining of gypsum stack expansion projects. This project will essentially involve zero discharge to ground water due to the extremely low permeability of the liner material. Based upon the testimony of Dr. Garlanger, any impacts reasonably expected to occur through liner seepage and defects would not result in an exceedence of applicable primary drinking water quality standards at the base of the surficial aquifer underlying the gypsum stack expansion area. No impacts at all were projected at any point lateral to the edge of the gypsum stack expansion area. In accordance with the terms of the permit the Department proposes to issue, IMCF will be required to monitor ground water quality in order to demonstrate compliance with all applicable standards. IMCF has provided reasonable assurance that it can locate and cap all uncapped recharge wells in the project area, and has proposed a method for capping such wells which is appropriate, and which can reasonably be expected to be effective in preventing the intrusion of pollutants into the ground water through these presently uncapped recharge wells.
Recommendation Based upon the foregoing, it is recommended that Department enter a Final Order approving IMCF's permit application and issuing permit number 1C53-154132. DONE AND ENTERED this 23rd day of May, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's Proposed Findings of Fact: 1-5 Preliminary matters which are not proposed findings. Adopted in Findings 4, 6, 8, 24-28. Adopted in Findings 3, 8. Statement of issues and not a proposed finding. 9-10 Adopted in Finding 11, but otherwise Rejected as unnecessary and immaterial. Adopted in Finding 15. Rejected as immaterial and unnecessary. 14-15 Adopted in Finding 16. Adopted in Findings 1, 11. Adopted in Finding 11, but otherwise Rejected as immaterial and unnecessary. Adopted in Findings 13, 34. Adopted in Finding 13. Rejected in Finding 22 and otherwise as not based on competent substantial evidence. Adopted in Finding 29. 22-23 Adopted and Rejected in part in Findings 34, 37. 24-31 Adopted and Rejected in part in Findings 18-20, and otherwise Rejected as immaterial and unnecessary. 32 Rejected as not based on competent substantial evidence. 33-34 Adopted in Finding 23, but otherwise Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Finding 19, but Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Findings 24, 29, 30. Rejected as irrelevant. 38-39 Adopted in Finding 11. Adopted in Finding 24, but otherwise Rejected as immaterial and unnecessary. Adopted in Finding 29, but otherwise Rejected as speculative and not based on competent substantial evidence. Rejected in Finding 36, and otherwise as immaterial. Adopted in Finding 36, but otherwise Rejected as immaterial and as a conclusion of law. Rejected in Finding 35. Rejected as not based on competent substantial evidence, and without citation to the record as required by Rule 221-6.031(3). Rejected in Findings 21-23 and 35-37. Rejected as not based on competent substantial evidence and as a conclusion of law. Adopted in Finding 17. Adopted in Findings 21 and 23, but otherwise Rejected as without citation to the record. Rejected as not based on competent substantial evidence and without citation to the record. Rejected as a conclusion of law. 52-53 Rejected as immaterial since the circumstances of the Gardinier permit differ significantly from the facts in this case. 54 Rejected as not based on competent substantial evidence and as immaterial. There was no explication of any nonrule policy which requires closure of an existing stack. 55-56 Rejected as immaterial. 57-58 Rejected as not based on competent substantial evidence and as a conclusion of law. 59-60 Rejected as a conclusion of law and without citation to the record. Rejected as immaterial and not based on competent substantial evidence. Rejected as simply argument rather than a finding of fact. Rejected as an incorrect conclusion of law. 64-68 Rejected as immaterial, not based on competent substantial evidence, and without citation to the record. Rulings on the Department's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4-5 Adopted in Findings 13, 14. 6-7 Adopted in Finding 12. 8 Adopted in Findings 24, 30. 9 Adopted in Finding 31. 10 Adopted in Finding 32. 11 Adopted in Finding 33. 12-13 Adopted in Finding 34. 14 Adopted in Finding 35. 15 Adopted in Finding 28. 16-17 Adopted in Finding 25. 18 Adopted in Finding 26. 19 Adopted in Finding 27. 20-22 Adopted in Finding 36. Adopted in Findings 14, 35. Adopted in Findings 1, 11, 13, 17. Adopted in Finding 18. Adopted in Finding 19. Adopted in Finding 20. 28-29 Adopted in Finding 21. 30 Adopted in Finding 22. 31-32 Adopted in Finding 23. Rulings on IMCF's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4 Adopted in Finding 13, 14. 5-6 Adopted in Finding 12. 7 8 Adopted in immaterial. Adopted in Finding Finding 4, but otherwise 6. Rejected as 9 Adopted in Finding 8. 10 Adopted in Findings 24, 30. 11 Adopted in Finding 31. 12 Adopted in Finding 32. 13 Adopted in Finding 33. 14-18 Adopted in Finding 34. 19 Adopted in Finding 35. 20 Adopted in Finding 28. 21-22 Adopted in Finding 25. 23 Adopted in Finding 26. 24 Adopted in Finding 27. 25-27 Adopted in Finding 36. 28-29 Adopted in Findings 14, 35. 30 Adopted in Findings 35, 36. 31 Adopted in Findings 1, 11, 13, 17. 32 Adopted in Finding 18. 33 Adopted in Finding 19. 34 Adopted in Finding 20. 35-36 Adopted in Finding 21. 37 Adopted in Finding 22. 38-39 Adopted in Finding 23. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, FL 33701 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Robert L. Rhodes, Jr., Esquire Lynda L. Goodgame, Esquire P. O. Drawer 810 Tallahassee, FL 32302 Daniel H. Thompson, Esquire General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether a variance for a reduced setback of four feet from Petitioner's well to a building pad treated with pesticide should be denied by the Department of Health.
Findings Of Fact Petitioner resides on property consisting of 7.5 acres at 3665 Darby Road, New Smyrna Beach, Volusia County, Florida. Since Petitioner receives no public utility service at his home, he has a septic system and potable drinking water well on his property. However, Petitioner's family does not drink the water from the well. The family purchases bottled water for drinking purposes. The well water is used for other household purposes, such as cleaning and bathing. There are other locations on Petitioner's property for a well. The evidence demonstrated that Petitioner has or had alternative locations for the well. Petitioner built a 1681 square foot barn utilizing an old concrete foundation from a previous barn. Petitioner's well is located in the southwest corner of the old barn's foundation and four feet from the new barn's foundation. The building plans for the barn, submitted to Volusia County, clearly indicated the location of Petitioner's well within four feet of the new barn's foundation. Even with this information Volusia County issued a building permit for the new barn. There were other locations for the barn on Petitioner's property which Petitioner would have utilized had he known of the setback requirements when he first permitted his barn. Volusia County required the new barn's foundation to be elevated. In order to elevate the sub-floor for the new barn's foundation, Petitioner placed a layer of visqueen on the sub- floor, or old concrete floor of the old barn, then added a layer of sand and poured concrete on top of the sand layer. The sand layer is encased in concrete. The concrete encasement does not necessarily prevent leaks from above given the porous nature of concrete. Additionally, the condition of the old barn floor, i.e. whether it has cracks, is not known. The Volusia County building code requires that the soil under a foundation be treated for termites. After Petitioner's contractor added the sand layer, he spread one four-pound bag of 90 percent Sevin dust, a common garden pesticide, on top of the sand. The application rate was within normal application rates for the barn area. The Sevin dust was not applied with any pressure to force penetration into the soil. More than seven days later the contractor poured the new concrete foundation on the pesticide-treated sand layer. The label on the Sevin dust package indicates that 10 percent Sevin dust may be applied to vegetables up to the day of harvest and in some instances 3 to 7 days before harvest, depending on the type of crop. However, the package does not indicate that a treated crop is edible for human consumption without first washing the crop or other processing of the crop. Therefore, a lack of danger from contamination has not been shown. Indeed, the evidence did not show that health would not be adversely affected by use of Petitioner's well given this major deviation from the setback requirements and the soil in the area. A Volusia County building inspector informed Petitioner's contractor that the close proximity of Petitioner's potable well to the area treated with pesticide was a violation of state health codes and could not be approved because the well did not meet the requirement of having a 25-foot separation from soil treated with pesticide. The contractor informed Steve Baur, a Department of Health employee, about the violation. The deviation of 21 feet from the 25-foot setback requirement is a major deviation. Petitioner applied to DOH for a variance to allow him to utilize his potable drinking water well. Petitioner's variance application was denied by the variance committee and Dr. Sharon Heber, Department of Health Environmental Health Director, for the following reasons: Section 64E-8.009(2), F.A.C., allows the granting of variances to 'prevent excessive hardship only in cases involving a minor deviation from established standards when the hardship was not intentionally caused by the applicant, where no reasonable alternative exists, and where proper use of the system will not adversely affect public health.' According to information supplied by the Volusia County Health Department, the treated slab is located 4 feet from the existing well. This is a major deviation from the established standards. The well completion report for the existing well indicates coarse shell starting at 10 feet and continuing down to 60 feet. This material provides no filtration and/or confinement for the pesticide.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order denying Petitioner's request for a variance. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 14th day of June, 2000. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Edward N. Pollack 3665 Darby Road New Smyrna Beach, Florida 32168 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Langue, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
