The Issue The issue to be determined in this case is whether the Administrative Order issued by DEP on December 23, 2014, is a reasonable exercise of its enforcement authority.
Findings Of Fact Parties FPL is a subsidiary of NextEra Energy. It is a regulated Florida Utility providing electric service to 4.7 million customers in 35 counties. FPL owns and operates the Turkey Point Power Plant, which includes a cooling canal system (“CCS”) that is the subject of the AO at issue in this proceeding. DEP is the state agency charged with administering the Florida Electric Power Plant Siting Act (“PPSA”), chapter 403, Part II, Florida Statutes. DEP has the power and the duty to control and prohibit pollution of air and water in accordance with the law and rules adopted and promulgated by it. § 403.061, Fla. Stat. (2015). ACI is a Florida corporation and the owner of 2,598 acres of land in southeast Miami-Dade County approximately four miles west of the Turkey Point CCS. ACI is engaged in agriculture and limerock mining on the land. ACI withdraws and uses water from the Biscayne Aquifer pursuant to two SFWMD water use permits. ACI also has a Life- of-the-Mine Environmental Resource Permit issued by DEP for its mining activities. The Life-of-the-Mine permit requires that mining be terminated if monitoring data indicate the occurrence of chloride concentrations greater than 250 milligrams per liter (“mg/L”) in the mine pit. The City of Miami is a municipal corporation located about 25-miles north of Turkey Point. The City purchases water from Miami-Dade County, which withdraws the water from the Biscayne Aquifer. Turkey Point FPL’s Turkey Point property covers approximately 9,400 acres in unincorporated Miami-Dade County, along the coastline adjacent to Biscayne Bay. Five electrical generating units were built at Turkey Point. Units 1 and 2 were built in the 1960s. Unit 2 ceased operating in 2010. Units 3 and 4 are Florida’s first nuclear generating units, which FPL constructed in the 1970s. Unit 5 is a natural gas combined cycle generating unit brought into service in 2007. Units 1 through 4 pre-date the PPSA and were not certified when they were built. However, Units 3 and 4 were certified pursuant to the PPSA in 2008 when FPL applied to increase their power output, referred to as an “uprate.” Unit 5 was built after the PPSA and was certified under the Act. The CCS The Turkey Point CCS is a 5,900-acre network of canals, which provides a heat removal function for Units 1, 3, and 4, and receives cooling tower blowdown from Unit 5. FPL constructed the CCS pursuant to satisfy a 1971 consent judgment with the U.S. Department of Justice which required FPL to terminate its direct discharges of heated water into Biscayne Bay. The CCS is not a certified facility under the PPSA, but it is an “associated facility,” which means it directly supports the operation of the power plant. The CCS functions like a radiator, using evaporation, convective heat transfer, and radiated heat loss to lower the water temperature. When cooling water enters the plant, heat is transferred to the water by flow-through heat exchangers and then discharged to the “top” or northeast corner of the CCS. Circulating water pumps provide counter-clockwise flow of water from the discharge point, down (south) through the 32 westernmost canals, across the southern end of the CCS, and then back up the seven easternmost canals to the power plant intake. The full circuit through the CCS from discharge to intake takes about 48 hours and results in a reduction in water temperature of about 10 to 15 degrees Fahrenheit. The CCS canals are unlined, so they have a direct connection to the groundwater. Makeup water for the CCS to replace water lost by evaporation and seepage comes from process water, rainfall, stormwater runoff, and groundwater infiltration. When the CCS was first constructed, FPL and SFWMD’s predecessor, the Central and Southern Florida Flood Control District, entered into an agreement to address the operation and management of the CCS. The agreement has been updated from time to time. The original agreement and updates called for monitoring the potential impacts of the CCS. Operation of the CCS is also subject to a combined state industrial wastewater permit and National Pollution Discharge Elimination System (“NPDES”) permit administered by DEP. The industrial wastewater/NPDES permit is incorporated into the Conditions of Certification. Hypersaline Conditions The original salinity levels in the CCS were probably the same as Biscayne Bay. However, because the salt in saltwater is left behind when the water evaporates, and higher water temperature causes more evaporation, the water in the CCS becomes saltier. Salinity levels in the CCS are also affected by rainfall, air temperature, the volume of flow from the power plant, and the rate of water circulation. In 2008, when FPL applied for certification of the uprate of Units 3 and 4, it reported average salinity to be 50 to 60 Practical Salinity Units (“PSU”). This is a “hypersaline” condition, which means the salinity level is higher than is typical for seawater, which is about 35 PSU. Higher salinity makes water denser, so the hypersaline water in the CCS sinks beneath the canals and to the bottom of the Biscayne Aquifer, which is about 90 feet beneath the CCS. At this depth, there is a confining layer that separates the Biscayne Aquifer from the deeper Upper Floridan Aquifer. The confining layer stops the downward movement of the hypersaline “plume” and it spreads out in all directions. FPL estimated that the average daily loading of salt moving from the CCS into the Biscayne Aquifer is 600,000 pounds per day. In late 2013, salinity levels in the CCS began to spike, reaching a high of 92 PSU in the summer of 2014. FPL believes the salinity spikes in recent years are attributable in part to lower than normal rainfall and to higher turbidity in the CCS caused by algal blooms. Reductions in flow and circulation during this period associated with the retirement of Unit 2 and the uprate of Units 3 and 4 could also have contributed to increased temperatures in the CCS, more evaporation, and higher salinity. ACI presented evidence suggesting that the uprate of Units 3 and 4 could be the primary cause of recent, higher water temperatures and higher salinity. The analyses that have been conducted to date are not comprehensive or meticulous enough to eliminate reasonable disagreement about the relative influence of the factors that affect salinity in the CCS. FPL has taken action to reduce salinity within the CCS by adding stormwater from the L-31E Canal (pursuant to emergency orders), adding water from shallow saline water wells, and removing sediment build-up in the canals to improve flow. These actions, combined with more normal rainfall, have decreased salinity levels in the CCS to about 45 PSU at the time of the final hearing. Saltwater Intrusion Historical data show that when the CCS was constructed in the 1970s, saltwater had already intruded inland along the coast due to water withdrawals, drainage and flood control structures, and other human activities. The “front” or westernmost line of saltwater intrusion is referred to as the saline water interface. More specifically, the saline water interface is where groundwater with total dissolved solids (“TDS”) of 10,000 mg/L or greater meets groundwater with a lower chloride concentration. DEP classifies groundwater with a TDS concentration less than 10,000 mg/L as G-II groundwater, and groundwater with a TDS concentration equal to or greater than 10,000 mg/L as G-III groundwater, so the saline water interface can be described as the interface between Class G-II groundwater and Class G-III groundwater. In the 1980s, the saline water interface was just west of the interceptor ditch, which runs generally along the western boundary of the CCS. The interceptor ditch was installed when the CCS was first constructed as a means to prevent saline waters from the CCS from moving west of the ditch. Now, the saline water interface is four or five miles west of the CCS, and it is still moving west. The groundwater that comes from the CCS can be identified by its tritium content because tritium occurs in greater concentrations in CCS process water than occurs naturally in groundwater. CCS water has been detected four miles west of the CCS. Saline waters from the CCS have been detected northwest of the CCS, moving in the direction of Miami-Dade County’s public water supply wellfields. The hypersaline plume from the CCS is pushing the saline water interface further west. Respondents identified factors that contributed to the saltwater intrusion that occurred before the CCS was constructed. However, while saltwater intrusion has stabilized in other parts of Miami-Dade County, it continues to worsen in the area west of the CCS. Respondents made no effort to show how any factor other than the CCS is currently contributing to the continuing westward movement of the saline water interface in this area of the County. The preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saline water interface. Fresh groundwater in the Biscayne Aquifer in southeast Miami-Dade County is an important natural resource that supports marsh wetland communities and is utilized by numerous existing legal water uses including irrigation, domestic self-supply, and public water supply. The Biscayne Aquifer is the main source of potable water in Miami-Dade County and is designated by the federal government as a sole source aquifer under the Safe Drinking Water Act. Saltwater intrusion into the area west of the CCS is reducing the amount of fresh groundwater in the Biscayne Aquifer available for natural resources and water uses. Water Quality Violations At the final hearing, a DEP administrator testified that DEP was unable to identify a specific violation of state groundwater or surface water quality standards attributable to the CCS, but DEP’s position cannot be reconciled with the undisputed evidence that the CCS has a groundwater discharge of hypersaline water that is contributing to saltwater intrusion. Florida Administrative Code Rule 62-520.400, entitled “Minimum Criteria for Ground Water,” prohibits a discharge in concentrations that “impair the reasonable and beneficial use of adjacent waters.” Saltwater intrusion into the area west of the CCS is impairing the reasonable and beneficial use of adjacent G-II groundwater and, therefore, is a violation of the minimum criteria for groundwater in rule 62-520.400. In addition, sodium levels detected in monitoring wells west of the CCS and beyond FPL’s zone of discharge are many times greater than the applicable G-II groundwater standard for sodium. The preponderance of the evidence shows that the CCS is contributing to a violation of the sodium standard. Agency Response The 2008 Conditions of Certification included a Section X, entitled “Surface Water, Ground Water, Ecological Monitoring,” which, among other things, required FPL and SFWMD to execute a Fifth Supplemental Agreement regarding the operation and management of the CCS. New monitoring was required and FPL was to “detect changes in the quantity and quality of surface and ground water over time due to the cooling canal system.” Section X.D. of the Conditions of Certification provides in pertinent part: If the DEP in consultation with SFWMD and [Miami-Dade County Department of Environmental Resources Management] determines that the pre- and post-Uprate monitoring data: is insufficient to evaluate changes as a result of this project; indicates harm or potential harm to the waters of the State including ecological resources; exceeds State or County water quality standards; or is inconsistent with the goals and objectives of the CERP Biscayne Bay Coastal Wetlands Project, then additional measures, including enhanced monitoring and/or modeling, shall be required to evaluate or to abate such impacts. Additional measures include but are not limited to: * * * 3. operational changes in the cooling canal system to reduce any such impacts; DEP determined that the monitoring data indicates harm to waters of the State because of the contribution of CCS waters to westward movement of the saline water interface. Under the procedures established in the Conditions of Certification, this determination triggered the requirement for “additional measures” to require FPL to “evaluate or abate” the impacts. Pursuant to the Conditions of Certification, a Fifth Supplemental Agreement was executed by FPL and SFWMD, which, among other things, requires FPL to operate the interceptor ditch to restrict movement of saline water from the CCS westward of Levee 31E “to those amounts which would occur without the existence of the cooling canal system.” The agreement provides that if the District determines that the interceptor ditch is ineffective, FPL and the District shall consult to identify measures to “mitigate, abate or remediate” impacts from the CCS and to promptly implement those approved measures. SFWMD determined that the interceptor ditch is ineffective in preventing saline waters from the CCS in deeper zones of the Biscayne Aquifer from moving west of the ditch, which triggered the requirement of the Fifth Supplemental Agreement for FPL to mitigate, abate, or remediate the impacts. Following consultation between DEP and SFWMD, the agencies decided that, rather than both agencies responding to address the harm caused by the CCS, DEP would take action. DEP then issued the AO for that purpose. The AO The AO begins with 36 Findings of Fact, many of which are undisputed background facts about the history of Turkey Point and the CCS. Also undisputed is the statement in Finding of Fact 25 that “the CCS is one of the contributing factors in the western migration of CCS saline Water” and “the western migration of the saline water must be abated to prevent further harm to the waters of the state.” Findings of Fact 16-19 and 25 indicate there is insufficient information to identify the causes and relative contributions of factors affecting saltwater intrusion in the area west of the CCS. However, as found above, the preponderance of the record evidence indicates the CCS is the major contributing cause of the continuing westward movement of the saltwater interface. In the “Ordered” section of the AO, FPL is required to submit to DEP for approval a detailed CCS Salinity Management Plan. The AO explains that “[t]he primary goal of the Management Plan shall be to reduce the hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II (<10,000 mg/L TDS) groundwaters of the State.” The goal of reducing hypersalinity of the CCS to abate westward movement of CCS groundwater into class G-II groundwaters is to be demonstrated by two success criteria: (1) reducing and maintaining the average annual salinity of the CCS at a practical salinity of 34 within 4 years of the effective date of the Salinity Management Plan; and (2) decreasing salinity trends in four monitoring wells located near the CCS. Although the AO states that FPL’s proposal to withdraw 14 mgd from the Upper Florida Aquifer and discharge it into the CCS might accomplish the goal of the AO, the AO does not require implementation of this particular proposal. It is just one of the options that could be proposed by FPL in its Salinity Management Plan.1/ If the success criteria in the AO are achieved, hypersaline water will no longer sink beneath the CCS, the rate of saltwater intrusion will be slowed, and the existing hypersaline plume would begin to “freshen.” Petitioners’ Objections ACI and the City object to the AO because the success criteria do not prevent further harm to water resources. Maintaining salinity in the CCS to 34 PSU will not halt the western movement of the saline water interface. They also contend the AO is vague, forecloses salinity management options that could be effective, and authorizes FPL’s continued violation of water quality standards. For ACI, it doesn’t matter when the saline water interface will reach its property because, advancing in front of the saltwater interface (10,000 mg/L TDS) is a line of less salty water that is still “too salty” for ACI’s mining operations. Years before the saline water interface reaches ACI’s property, ACI’s mining operations will be disrupted by the arrival of groundwater with a chloride concentration at or above 250 mg/L.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department of Environmental Protection rescind the AO or amend it as described above. DONE AND ENTERED this 15th day of February, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2016.
Findings Of Fact The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ·9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
Findings Of Fact This case involves the Department's attempt to purchase and utilize eight water quality data transmitter/display/logger units to measure parameters of pH, conductivity, DO (dissolved oxygen), temperature, depth, salinity, an option for oxygen reduction potential, and an option for ammonia measurement simultaneously in either fresh water or salt water for a period of up to 48 hours. The Department mailed ITB No. 93-03, entitled Water Quality Data Transmitter/Display/Data Logger Unit, on October 7, 1992. The term "parameter" refers to specific measurements such a pH, dissolved oxygen, conductivity, depth, and temperature, those measurements that were called for in the ITB. The term calibration refers to adjusting the measurements by a comparison to a standard. Calibration is performed to compensate for drift or shift in measurements, usually over a period of time. ITB No. 93-03 contained the following specifications for the desired equipment under "special Conditions and Specifications": Water Quality Data Transmitter/Sonde - for use in both fresh and saltwater with automatic temperature compensation. Include temperature, conductivity, dissolved oxygen, depth, and low ionic pH system. Must be able to calculate or determine salinity and DO percent saturation. Must have option of adding additional probes, e.g. ORP and Ammonia. - 8 units. Water Resistant Digital Display/Data Logger Must be programmable for unattended data measurements for all parameters in item no. 1 above at various intervals (e.g. every 15, 30, 60 minute) and have the capability of logging all such data. - 8 units. Calibration/Maintenance Kits - Calibration for all parameters in item 1 must be simple, requiring 5 minutes or less for each parameter. - 8 units. Stirrer Units (if needed) - 8 units. PC compatible Software and Cable for data down loading - 8 units. Sonde to Logger/Display Unit Cable - at least 50 feet. - 8 units. Unattended Monitoring - Must be able to log and maintain water quality data file for a sampling frequency of 15 minute intervals over at least a 48 hour period while in an unattended mode of operation - 8 units. Field Carrying Case for Sonde and Display/Logger Unit - 8 units. User Manuals - 8 Units. Probe weights (if needed) - 8 units. ITB No. 93-03 specified the following warranty and delivery requirement: Must carry 2-year warranty on Sonde, Display/Logger Units, Stirrers, and Cables. Warranty service must be provided within two weeks of notification or, if extended repair period is required, then loaner units must be made available at no cost to DER during the warranty period. Delivery must be within 45 days of bid award. Petitioner Solomat's bid of $50,086.32 was the lowest when bids were opened on October 23, 1992. The company's written equipment specifications provided by the Petitioner to the Department were similar or superior to the written specifications provided with the competing bid responses. They were submitted in compliance with "General Condition" No. 7, page 1 of the ITB, which required submission of full specifications. Dr. Wayne Magley, on behalf of the Department, requested that Petitioner demonstrate the equipment it was offering in its bid response because the Department was not familiar with the Petitioner nor its equipment. After the bid opening, and before award in November 1992, Petitioner demonstrated its existing MPM4803 production unit for the Department in Florida, along with the 803PS sonde. A sonde is a multiparameter probe. The 803PS sonde was capable of being plugged into the existing MPM4803, and the WP4007 and WP803 data logger units then under development by Solomat. Petitioner agreed to modify its software for the MPM4803 to add the ability to read out in milligrams per liter (MG/L), a capability not mentioned in the ITB specifications or in Solomat's company specifications. This software modification contributed to the Department's subsequent calibration troubles because, according to Mr. Stonier, the modification of the unit software rendered Solomat's "how to" manual less accurate, detailed, and specific than it would have been for the unmodified software. The Petitioner amended its bid offering by letter dated November 5, 1992, to include, in addition to its October 20, 1992 bid response, the following: Stainless Steel Relief Cables with each unit Display D.O. readings in MG/L. A day of On-Site training from a Solomat factory representative A day of training at each local site from Geometrics. The ITB had only called for a water resistent product, but during this same pre-contract award period, Department personnel expressed a need to hose off the equipment. Hosing off the equipment would require a waterproof unit, so Petitioner offered the option to upgrade to new instruments slated for development and sale in April or May of 1993. In so offering, Solomat's representative described to Department personnel a WP4007 unit then under development. Solomat also had its WP803 unit under development. The WP803 also was intended to be developed to be waterproof. The WP803 was not part of Petitioner's additional offers to the Department in November 1992. Although Mr. Stonier asserted at formal hearing that Solomat's November 1992 upgrade offer was not integral to the finalized November 1992 bid award, he conceded that the Solomat offer was, "something Solomat was obliged to provide." In fact, this offer was reduced to writing. In response to the Department's concerns about hosing off the units, the Petitioner also promised a latex boot to protect the probe on the MPM4803 unit. This offer also was reduced to writing. The Petitioner further amended its bid response by letter dated November 10, 1992, to include, in addition to its October 20, 1992 bid offering and its November 5, 1992 enlargement of that offer, the following: Both versions of the weighting bracket will be provided with each unit. Two year warranty will cover any damage due to immersion or intrusion by salt air. Bottom latex boot will be supplied in addition to latex cover which you saw displayed today. A wrist strap will accompany each unit. Any further software (CS4) or Eprom updates will be available at no charge. SOLOMAT will extend the option to upgrade any or all of the instruments, with our new, fully waterproof version WP4007, within the next year at no charge. We will ship demo MPM 4803, fully preprogrammed, to be received by D.E.R. prior to November 18, 1992. Petitioner knew via the original ITB specifications and by the further discussions that took place in November 1992 after the bid opening and prior to the final award and purchase order that the Department was concerned about the ruggedness, watertightness, and use of the eight instruments in the field for extended periods in various conditions and types of water. No. 1 and No. 7 of the ITB "Special Conditions" specifications clearly stated that the Department wanted to leave the units on site for 48 hours in varying types of water. At formal hearing, Mr. Stonier admitted he knew in November 1992 that was what the Department wanted to do even if the ITB were confusing. The Petitioner knew that the Department would be utilizing the water quality monitoring equipment under diverse conditions in the field because Mr. Stonier's November 12, 1992 letter to the Department provided as follows: The D.E.R.'s application includes the tough everyday use in varied environments that demands the ruggedness and reliability that the Solomat instruments have been designed and are each tested for. Mr. Stonier testified at formal hearing that it was understood in November 1992 . . that the units were going to be carried out on site into various types of measurement situations, . . . and that the probes would be -- the 803PS sonde would be submerged, and samples would be recorded. And these instruments are certainly designed to do that. in fact, they're designed where they can be left out on-site for longer periods of time. The Department accepted the Petitioner's October 20, 1992 bid as amended by its November 5 and 10, 1992 letters, and in reliance on those letters. Although the ITB contained no definition of "accuracy", the Department's acceptance of Petitioner's bid also included reliance on Solomat's equipment specifications regarding equipment accuracy submitted by Petitioner in its response to "General Condition" No. 7, page 1 of the ITB. The bid acceptance and subsequent purchase order occurred on or about November 20, 1992. The purchase order is not in evidence. In January 1993, Petitioner delivered eight MPM4803 units and eight 803PS sonde units to the Department in response to the bid award/purchase order. This model was equipped with a latex boot, but the Department complained about the waterproof ability of the boots, and Petitioner promised to provide wider latex boots. Petitioner's training representative provided one day of training in Tallahassee and one day of training in Orlando in early February, 1993. Petitioner's training representative encountered difficulty in demonstrating how to calibrate the equipment at the February 1993 Tallahassee training session which he was unable to resolve prior to calling Petitioner's U.S. headquarters for technical assistance. Beginning in early February 1993, Department personnel repeatedly encountered problems in calibrating the Petitioner's equipment. Calibration problems were encountered in trying to follow the manuals provided by the Petitioner despite some additional written instructions beyond the original faulty manual (see Finding of Fact 11) and despite oral instructions by telephone. There also were continuing problems with the pH sensor, with conductivity, and with DO (dissolved oxygen). Beginning in February 1993, Department personnel repeatedly encountered problems with Petitioner's equipment's inability to stay calibrated and to take accurate measurements resulting from excessive drift. Solomat employees perceived the Department users as unsophisticated and slow to understand how to use the Solomat equipment, and as preferring the earlier models of similar units with which they were more familiar and which had been developed by competitive vendors. Indeed, some documented user errors included Department personnel failing to remove probe guards on sensors. Some OC3 dissolved oxygen sensors in the 803PS sonde had to be replaced by Solomat due to user error in installing them without the 0-ring so that water could seep in and damage the equipment or with two 0-rings so that there was no contact between the electrode and the probe sonde. However, these types of human error did not significantly affect valid tests showing calibration drift and accuracy reading problems. It is noted that P-5 (Loxahatchee notes), an August 24, 1993 28 day "short informal report" relied upon by Petitioner to show that some persistant, open-minded Department users could learn to correctly calibrate the MPM4803 data loggers/803PS sondes and that good data could be gathered over more than 48 hours, contains on its first page the comment, "Stabilities were very good except DO; it is unclear whether this was due to probe response drift or improper calibration by Solomat representatives." Department personnel tracked their problems with the Petitioner's MPM4803 equipment's failure to take accurate measurements by sampling at field sites which have been consistently tested by Department personnel with other equipment over a period of years so that they had a background of data for comparison for any given parameter. When they were unable to account for significant drifts of calibration and even negative readings in some parameters on Petitioner's products, Department personnel then used other vendors' water quality monitoring equipment to confirm that the Petitioner's equipment was not giving consistently accurate measurements. Although Petitioner's witnesses testified concerning their perception that such methods of comparison lacked accuracy and fairness, they offered no better field tests as an alternative. Petitioner's concerns mostly centered around other vendor's meters also sometimes registering outside ITB or company specifications. However, in fact, the Department was making some of its assessments based upon calibration and post-calibration readings on the same Solomat meter each time. In light of the testimony of John Kent Edwards that in his District, he personally calibrated the Petitioner's units every morning in the laboratory before they went out in the field and that careful post calibration procedures on the same meters still demonstrated significant drift; the testimony of Mr. Edwards and Louis They that standard calibration solution or calibration solutions prepared fresh by a chemist were used in calibrating Petitioner's units to eliminate variables of that sort; the admission by Don Roos to Department personnel in July 1993 that it could take five minutes to stabilize DO on the low end and on the high end (see Finding of Fact 36); the acknowledgement by Peter Ebersold that it is possible that DO and pH drift would violate ITB specifications and Petitioner's own equipment specifications over more than 24 hours in dirty water; Dr. Saffel's uncontradicted testimony that the calibration on all Petitioner's units provided to the Department were written only for generic water, not water as bioactive as some of Florida's water, and that Petitioner's units' long term stability of calibration depends very strongly on the purity of the water being measured; and Wayne Magley's testimony that a subsequent Winkler Titration test in the laboratory verified the other vendors' scores but not Petitioner's scores while showing that Petitioner's units were working correctly, and that statistical correlations of all the meters were done, it is found that the Department's testing procedure is probative and persuasive that the MPM4803 units were not meeting certain specifications encompassed in the bid award/purchase order. The Petitioner's assertion that low ionization cables threw off all calculations is in the nature of a nonsequitur, since this type of cable was agreed upon in the amended bid responses, became part of the parties' contract, and Petitioner was required to provide workable units under that agreement. Petitioner's assertion that the conversion of readings to MG/L was the problem falls in the same category. During 1993, both parties made repeated good-faith attempts to resolve the calibration and instrument accuracy problems, with the Department informally telephoning Petitioner for assistance and sharing information among the Department's Tallahassee office and district personnel. By a June 9, 1993 letter, the Department provided Petitioner its data showing its employees were not able to get consistent, reasonable readings with the Solomat units. In June 1993, Wayne Magley, on behalf of the Department, asked the Petitioner to provide additional on-site assistance because Department personnel were still unable to resolve problems with calibrating and using Petitioner's equipment despite Petitioner rendering helpful technical advice when called by Department personnel. Dr. Magley specifically asked for Don Roos because of Mr. Roos' history of being extremely knowledgeable about the equipment and rendering helpful technical advice when called. In July 1993, Don Roos and Peter Ebersold came to Florida to provide assistance at the Department headquarters in Tallahassee and Orlando District office. During the Tallahassee visit, Mr. Roos admitted that it could take up to five minutes for DO to stabilize before it could be calibrated for low end and five minutes for DO to stabilize for high end, for a total time in excess of 10 minutes for one parameter. This calibration time violates the Department's bid specification that each parameter must be calculated in five minutes or less. Misters Roos and Ebersold observed Department staff calibrating the MPM4803 with the 803PS sonde during their July 1993 visit to Tallahassee and did not have any criticism of the Department staff's calibration process. Petitioner diagnosed a problem with its MPM4803 units as being that some Department users were inadvertently recalibrating temperature and misinterpreting "error" message prompts, thus throwing all the readings off. Therefore, Solomat made a change to eliminate "temperature" from the recalibration cycle and changed the Eproms on the Department's units to simplify the procedure. Despite trying to get the wider latex boots for the MPM4803 units until July 1993, Petitioner was unable to obtain wider latex boots and at that point gave up trying to get the required improved boots for the MPM4803 units, in anticipation of being able to upgrade the Department to newer units. The Petitioner reiterated in correspondence as late as August 3, 1993 that the Department would be receiving an upgrade from the MPM4803 to the WP4007 units, stating, "[t]he exchange of your MPM4803s with the new WP4007 waterproof dataloggers will occur near the end of the year." Dr. Saffell testified that the Department was promised an upgrade on his authority. By a November 15, 1993 letter, the Department reported to Petitioner that most of its employees still could not calibrate for each parameter within the five minutes or less as required by the ITB specifications and still had difficulty getting consistent readings. The Department wanted to return the units for refund. By a December 7, 1995 letter, the Department notified Petitioner that it intended to find Petitioner in default of the bid contract including failing to provide the promised upgraded units in any timely fashion despite Petitioner's promise to do so within a year of its November 10, 1992 bid amendment and because the Petitioner's equipment could not be consistently calibrated in five minutes or less for each parameter as required by the bid specifications. The Petitioner also had never supplied the latex boot as agreed. It is clear that as of the December 7, 1993 letter, Petitioner was in default on the foregoing three elements of its contract with the Department. By letter dated December 13, 1993, Petitioner notified the Department that it still wished to provide the instrument upgrade. In this letter, Petitioner unilaterally changed the model it was going to provide from the WP4007 to the WP803, on its own assessment that the WP4007 had too many options and a more user friendly unit would be less confusing to Department users. The WP4007 features which are not on the WP803s were not part of the original ITB specifications. The WP803, like the WP4007, was intended to be waterproof. Solomat's specifications for the WP803 were intended to exceed those of other vendors for comparable machinery. Despite Solomat's best intentions to have both the WP4007 and the WP803 models fully developed and ready for the market in April or May of 1993, neither the WP4007 nor the WP803 was released in the United States until February or March 1994. By letter dated December 21, 1993, the Department gave Petitioner until February 1, 1994, to correct its failed performance under the contract by supplying eight replacement units that met the specifications agreed upon back in November 1992. No mention was made of what model unit would be necessary, however the Petitioner was notified that the replacement units had to be provided to the Department for testing and that the units had to be acceptable to the Department after testing by February 1, 1994 in order for Petitioner to avoid being found in default of the bid contract. The Department did not, in this letter, or at any other time, specifically agree to accept the WP803 upgrade instead of the promised WP4007 upgrade, but specified that a failure to supply eight upgraded units and have them timely accepted by the agency would result in default. Petitioner responded that it would provide two prototypes or preproduction units to test in January and try to meet the Department's February 1, 1994 deadline for delivery of eight upgraded units. The Department allowed Solomat until February 15, 1994 to exchange eight satisfactory upgraded units for the eight MPM4803s originally supplied. Petitioner delivered two WP803 preproduction units and provided some training in January 1994. WP4007 preproduction units could have been provided but were not. Because development had lagged behind marketing, Petitioner had inventory of neither WP803 nor WP4007 production units. The Department conducted testing, some of which could be considered limited field use, on January 18-20, 1994 on the prototype or preproduction WP803 units with Petitioner's representatives present. Petitioner's representatives did not criticize Department personnel's calibration procedures. On January 28, 1994, the Department provided the Petitioner a written summary of its findings as a result of the testing which included a four-point conclusion that the new units did not meet bid specifications. Petitioner's witness conceded the following: The circuit boards on the preproduction WP803 units tested in January 1994 had been assembled by hand. The internal programming on the Eprom was not fully debugged. There were problems with the conductivity linearizations. Petitioner attempted to interface those instruments with the 803PS sondes the Department already possessed and the modifications did not work. Petitioner did not intend these prototype WP803s to be used in the field because, among the foregoing problems, they were not fully waterproof. Petitioner's review of the Department's test data in February 1994 on the prototypes convinced the company that there were problems that went beyond mere user problems. Some parameters were acceptable but results were not reliable for all parameters. The testimony of John Kent Edwards, Louis They, and Wayne Magley together with Petitioner's assessment is sufficient to establish that despite a fair test, calibration drift for Petitioner's preproduction WP803 units tested on January 18-20, 1994 failed quality assurance levels and did not meet certain specifications of the contract. The Department eventually extended the February 1, 1994 deadline until February 21, 1994. The Department conducted additional testing on the WP803 production units supplied by the Petitioner prior to February 21, 1994. Wayne Magley set up and calibrated three of the production units received. One machine had an immediate hardware failure. Over a week, he did a series of calibrations and post-calibrations in the laboratory and one field trip. Despite employing calibration methodology to give Petitioner the benefit of the doubt and even accounting for low ionic strengths, the "five minutes for calibration of each parameter" specification could not be met. Problems with accurate readings remained even when Petitioner's instruments were tested against each other. Department testing on the WP803 production units demonstrated that they also failed to meet either the ITB specifications or the company specifications provided by the Petitioner as part of its bid. By a March 3, 1994 letter, the Department notified Petitioner it was declaring a default, pursuant to Rule 60A-1.006 (3) F.A.C. By mid-February, Petitioner had not supplied more than four production level WP803s. The Department instructed Solomat not to ship any more units because Department tests on the first four made the Department not want to progress further. Petitioner did not send the additional WP803 production units. The Department ended up with four MPM4803 production units, four WP803 production units and four 803PS sondes. Solomat has four 803PS sondes at its Connecticut office marked, "DEP property." In August 1994, Petitioner provided its production level WP803 data logger and 803PS sonde to U.S. Testing Labs which performed an independent evaluation to determine if the problems that the Department had experienced were with the units or with the users. Daniel Cooke, Ph.D., was in charge of the test. He, like the Department, had some initial start up difficulty, including learning how to calibrate with oral instructions over the telephone beyond the printed December 1993 instruction manual; a loose connection that Petitioner had to repair; and conductivity adjustments that Solomat had to make. As a result, he aborted the first test on his own and aborted the second try at a test at the request of Solomat. He found he was able to calibrate with the June 1994 instruction manual Petitioner created after the Department had claimed a default. His test results also showed that: 1) high DO was outside of specification throughout the test; 2) conductivity was outside of specification throughout the test; 3) salinity was outside of specification throughout the test; and 4) all parameters were outside of Petitioner's specifications at times during the testing. Petitioner's witness conceded that there could be some drift over the period of a week in the field, some small drift over two hours even in the lab calibrations and DO and pH drift could violate the ITB's "48 hours" specification, dependent upon the pollution of the water in the field. A few months before formal hearing, Petitioner revised its own company specifications to define more realistic tolerances under actual field conditions as 24 hours and two weeks after calibration. The Department represented that it has not yet gone to the next bidder or established a timetable and assumed any costs of reletting the ITB, as contemplated by Rule 60A-1.006(3) F.A.C., because it has no money to do so. Accordingly, there is no evidence of cost of reprocurement which the Department seeks to assess against Solomat (TR-12-13)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order that (1) determines Petitioner to be in default of its contract; (2) orders Petitioner to reimburse the Department $50,086.32 as refunded contract monies, without any additional cover costs; (3) orders Petitioner to pay to the Department, on or before the date payment of the contract monies is made by Petitioner, an amount equal to the actual cost of contracting with the next lowest bidder or the cost of reprocurement or the costs attendant upon replacement purchase on the open market in an amount either stipulated between the parties or as estimated upon past agency experience in letting the original bid/contract; (4) provides for the return of all equipment to Petitioner upon satisfaction of the requirements of paragraphs 2-3; and (5) provides for the removal of the agency decertification upon the satisfaction of the requirements of paragraphs 2-3. RECOMMENDED this 2nd day of August, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1995. APPENDIX TO RECOMMENDED ORDER 94-1682 The following constitute specific rulings, pursuant to 5120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1, 9, 12-14, 16-18, 21-25, 29-31, 48, 50, 53, 64, 68, 71-72, 80-81, 83-87, 89-90, 93, 94, 96, 101-102, 123, 127-128, 130, 133, 136, 146, 148, 149, and 153 Substantially accepted except for unnecessary, subordinate, and/or cumulative material which has been interspersed therein and except for legal argument and proposed conclusions of law for which a ruling under s. 120.59(2) F.S. is not required. 2 Covered in the preliminary statement. 3-8, 10, 27, 61, 82, 91-92 99-100, 112, 115, 117, 121-122, 125, 139-140, 142-143 Rejected as immaterial or non-dispositive of any material issue of fact. 11, 19-20, 28, 51-52, 54-55, 63, 73-78, 107-108, 124, 134-135, 137 Rejected as subordinate to the facts as found. 62, 65-67, 88, 98, 103-106, 113-114, 116, 118, 126, 129, 131-132, 138, 141, 144-145, 147 Rejected as out of context, misleading, and/or as they are stated, these proposals are not supported by the greater weight of the credible competent evidence of record. 15, 26, 49, 56-60, 69-70, 79, 95, 97, 119-120, 150-152 Rejected as stated because not proven as stated. Same material substantially covered in the recommended order 32-47 Rejected in part as misleading and/or not supported by the greater weight of the credible competent record evidence; otherwise rejected because it is non-dispositive in that it is selectively culled opinion testimony. There were two aborted tries to do the test before the final data was run; all raw data (including the aborted tries) had been turned over to Solomat, so that additional inquiry of Daniel Cooke, the witness, was limited. Rejected further because it does not reach the dispositive material facts that Solomat did not supply the items called for in their negotiated/modified contract. This was ultimately a laboratory test with a new manual, not a field test with the old manual and the specifications were ultimately modified. Same material substantially covered in the recommended order. 109-111, 154 Substantially rejected as mere legal argument or as a conclusion of law not requiring a ruling pursuant to s. 120.59(2) F.S. Otherwise covered in the Conclusions of Law. Respondent' s PFOF: 1-6, 9-17, 19-29, 31-39, 41-43 Substantially accepted except for unnecessary, subordinate, and/or cumulative material which has been interspersed therein and except for legal argument and proposed conclusions of law for which a ruling under s. 120.59(2) F.S. is not required. 18, Rejected as subordinate to the facts as found 7-8, 30, Rejected as immaterial or non-dispositive of any material issue of fact. 40, 45 Substantially rejected as mere legal argument or as a conclusion of law not requiring a ruling pursuant to s. 120. 59(2) F.S. Otherwise covered in the Conclusions of Law. 44 Covered in the preliminary statement. COPIES FURNISHED: Robert S. Cohen, Esquire Pennington and Haben, P.A. Post Office Box 10095 Tallahassee, Florida 32301 Candi E. Culbreath, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399 Kenneth Plante Department of Environmental Protection General Counsel 3900 Commonwealth Blvd. Tallahassee, Florida 32399
Findings Of Fact Tavernier Harbor, Inc. (Tavernier, Applicant) has applied for a dredge and fill permit seeking to install seven 40' X 18' boat slips and one 25' X 3' finger pier and to construct a total of 3,024 square feet of perimeter boardwalk, with the eleven six foot wide access walkways over a "mangrove fringe" at a boat basin in an unnamed canal lying at Section 4, Township 63 South, Range 38 East in the municipality of Tavernier, Monroe County, Florida. The site plan and permit application provides that the slips are to accommodate sport fishing boats There would be 564 linial feet of boardwalk waterward of the mangrove fringe surrounding the boat basin and 160 feet of boardwalk landward of that mangrove fringe, with one finger pier of the above dimensions. The landward side of Tavernier's development will contain a restaurant and bar with an adjacent parking area, a storm water drainage system as well as a sewage treatment plant. There will be a six foot high wall screening the parking area from the surrounding non-owned property and public roadways. Tavernier intends to use the property as a sport fishing harbor to moor seven boats as well as to provide transient dockage for users of its upland restaurant or for boat owners or users who travel by car to the upland facilities and parking area. Various environmental impact abatement or mitigation facilities and procedures are proposed to be incorporated in the project in its construction and operation as delineated more fully below. Tavernier owns the entire upland property surrounding and upon which the proposed project will be constructed and operated. Tavernier does not own the submerged land in which the proposed pilings for the boardwalk, slips and pier will be placed, but has received authority from the State of Florida Department of Natural Resources to proceed with the project. The proposed project will be located in a rectangular basin approximately 120 feet wide by 414 feet long, lying at the end of a "dead end" canal which connects with Tavernier Creek, some 2,000 feet away. The canal and basin are box cut (straight sides) into the bedrock with an average depth of approximately 10 feet. The waters of Tavernier Creek and the adjacent Atlantic Ocean lie in the Florida Keys Outstanding Florida Waters as designated in Rule 17-3.041(4)(i), Florida Administrative Code. Artificial water bodies, including canals, within the Florida Keys are excluded from the Outstanding Florida Water (OFW) designation by this rule. Artificial water bodies include canals which have been dredged, as this one has historically, as well as water bodies which existed naturally in whole or in part whose banks or boundaries have been artificially altered by filling. Such is also the case here. In this connection, an aerial photograph in evidence dating from the late 1940s indicates that natural surface waters may have existed at one time in certain portions of the area presently encompassed by the above described boat basin and canal, however, it was not established by competent testimony that the waters depicted in the aerial photograph were actually natural waters or what the depth of those waters might have been as opposed to the above found present average depth of the canal and boat basin at issue. There was credible testimony by persons experienced with the naturally occurring waters of the Florida Keys, which established that the natural waters shown in the 1940s aerial photograph in the vicinity of the boat basin were so-called "floc ponds," which characteristically have a depth of no more than one or two feet. Additionally, the boundaries of the water bodies depicted in the 1940s photograph are not coincidental with the present boundaries of the boat basin or canal system where the project is proposed to be constructed and operated. The basin in which the proposed project is to be placed and the canal connecting it to Tavernier Creek are not natural bodies of water and are instead artificial water bodies created by dredging, excavating and filling of the original boundaries. Therefore, the proposed project is not located in designated Outstanding Florida Waters. The land surrounding the canal and boat basin and owned by Tavernier is historically filled land with a relatively young growth of native vegetation surrounding the basin area. The majority of the boat basin perimeter is vegetated with red, black and white mangroves. White mangroves occur predominately on the upland, near-shore slope of the basin. The surrounding area off the project site is occupied by docks, boats and seawalls owned by non- parties. The boat basin area is non-bulkheaded, although there is a remnant bulkhead which is now largely vegetated. The Tavernier property is surrounded by three roads, the Overseas Highway, the Old Overseas Highway, as well as side streets on the other two sides of the property. The biota present in the basin and canal area involved consists primarily of small fish such as snappers and grunts and occasional small barracuda. Within the mangrove system itself there are algae colonies on the mangrove roots as well as gastropod mollusk systems, with some periwinkus snails on the water bottoms and numerous types of analids, jellyfish, cassipia and tulip snails, as well as various types of minnows and other small fish. Most of the aquatic life in the basin canal system is associated with the vegetative mangrove fringe which provides some structural relief in the water and thus a beneficial marine habitat system for these types of aquatic life. There are no seagrasses associated with the project site or the nearby areas in the artificial canal. There will be no adverse impact on seagrasses. There is presently a healthy biological diversity of life forms in the canal and basin system. Water Quality The Water Quality Rules germane to this proceeding dictate that water quality impact of the proposed project in the basin and canal system must be examined with regard to short term and long term water quality impacts. Short term water quality impacts of the proposed project only involve potential turbidity generated by construction, that is, by the driving of pilings into the bottom substrate to support the finger piers, boardwalks and to create the boat slips. The Applicant agreed at hearing to alleviate such a potential impact by the installation and use of turbidity curtains around the entire construction area during installation of the pilings and decking for the boardwalk, deck and finger pier. In view of the established fact that the driving of the pilings will not cause the suspension of a significant amount of turbidity, reasonable assurances have been provided that this pile driving activity, coupled with the use of turbidity curtains, will result in no violation of state water quality standards as to this pollution parameter. This method of construction and the use of turbidity curtains should be incorporated in the permit as a mandatory condition. The long term water quality impacts which must be examined here are associated with the use of the basin, and to some extent the canal, by boats with the attendant potential for pollution associated with boating activities, as well as the long term pollution effect of storm water runoff from adjacent upland areas into the basin. In this regard, storm water now entering the basin carries with it an indeterminate amount of pollutants associated with surrounding, inhabited upland areas and surrounding automobile roadways. The project as now proposed will alleviate much or all of the present storm water runoff pollutant effect and will prevent any additional such effect occasioned by the installation and operation of the project with regard to upland- originated pollutants. This is because the Applicant has proposed to install, pursuant to its storm water drainage plan, a reverse gradient configuration around the perimeter of the basin on the upland which will divert storm water back on to the upland and prevent it from entering the subject basin. The storm water would be directed into approved storm water filtration basins. Thus, to the extent that storm water may be exerting a pollutant effect on the basin and canal at the present time, the project as proposed represents a marked improvement. The only other potential long-term source of water quality degradation from the proposed project, concerns the pollution that may emanate from the use of boats in the basin, canal and dockage facilities. This potential source will be offset by the diversion of similar type oil, grease and other pollutants already entering the basin from the upland by the storm water diversion and filtration system as well as by the preservation of the present mangrove fringe. The mangrove fringe is quite important to alleviating water quality impacts due to present pollution or due to increased boat traffic as a result of the installation of the project. Mangroves provide an important function in this regard in that their root systems serve to up- take excessive nutrients, heavy metals and other pollutants from the water into the mangroves, thus serving as an important natural filtration system. Additional methods of alleviating the water quality impacts due to pollution from boats and associated activities consist of establishing certain permit conditions, described below, which will prevent boat operation and related activities from lowering ambient water quality and requiring a continuous, long-term operation permit by which those conditions may be enforced, associated with requiring an extensive, water quality monitoring program. That program will require site modification and ultimately even removal of the project if water quality parameters are not met in the long term. Increased boat operation in the basin can result in discharges of hydrocarbons, toxic metals (chiefly from boat bottom paint), organic debris (chiefly associated with disposal in the water of fish cleaning offal) as well as the deposition of detergent material in the waters involved. Additionally and importantly, the presence of boats with heads can result in sewage spills or discharges. It was established, however, that boat use in the canal and associated pollution will not be solely due to the Applicant's proposed project. The canal margin is already almost entirely developed with approximately forty developed lots, most of which have boats associated with them with attendant docking facilities. Many of the same water quality contaminants such as hydrocarbons and greases, heavy metals, nutrients and organic material that would be expected from boat operations and fish cleaning are already present in the canal and in untreated storm water entering the canal and basin system from adjacent roads and parking areas. These contaminants will be reduced somewhat by the installation of the storm water diversion and filtration system at the basin. Additionally, as mentioned above, the proposed project will retain the vast majority of the present mangrove fringe filtration system surrounding the basin. The mangrove fringe will continue to serve its function of filtering and absorbing nutrients and other contaminants related to both storm water runoff and boat operation, which are now or will be entering the system. The Applicant has agreed to the imposition of several permit conditions which will control boat operation pollutants. These include the prohibition of any boat fueling facilities and boat fueling by private owners, the prohibition of "live aboard" boats which require frequent sewage pumpout and pose a substantial risk of illegal sewage discharge, the prohibition of boat hull cleaning and major boat maintenance (other than minor engine adjustments), and the mandatory requirement of an oil spill containment and removal apparatus which must be kept and maintained on the site. An extensive pre-construction and post-construction water quality monitoring plan will be required because of the paucity of background data available concerning existing water quality in the basin and canal. Such monitoring is necessary to determine the effectiveness of the storm water management plan and structures, as well as all the other permit conditions. The applicant has agreed to the implementation of such a long term water quality monitoring plan. Additionally, the Applicant will be required to obtain a long term operating permit in addition to the construction permit, which will allow for continuous Department review of the project and its operation. If water quality standards are not consistently maintained, the permittee will be required to change the marina design, management or operation to correct the problems. These changes can include the reducing of the size and number of boat slips and dockage facilities and ultimately even the physical removal of the proposed project and the non-renewal of the operating permit. In this connection, the evidence of record reveals that the ambient water at the site occasionally is violative of state water quality standards for dissolved oxygen. This is characteristic of such dead end canal and basin systems which are characterized by a very low flushing rate. This canal system flushes such that approximately 90 per cent of the waters therein are exchanged in approximately 5 1/4 days. This is quite a low flushing rate which tends to concentrate pollutants over time. This, however, is an ambient or natural condition in the canal as it presently exists and is not a water quality problem occasioned by the proposed project. The Department has heretofore followed a policy of granting permits where such a parameter is sometimes not in accordance with state water quality standards and indeed, with regard to the instant project, the permit conditions which will be implemented and enforced, especially including the upland sewage and waste disposal system and storm water management and disposal filtration system have been reasonably shown to assure an overall improvement in the water quality in the basin area involved. In addition to prohibiting live aboard boats as a means to protect water quality in the face of boat traffic in the basin area, the Applicant will construct an upland, approved and permitted sewage treatment and disposal facility. Approved and properly maintained pump-out facilities for boat- generated sewage are also proposed and must be required. The Applicant also proposes dockside fish cleaning facilities to help ensure that fish cleaning debris is not deposited in the waters of the basin and canal. In view of the evidence of record which establishes that any other disposal area, such as the open ocean, for fish remains is a substantial distance from the project site, dockside fish cleaning facilities will not ensure that fish debris is not deposited in the waters of the basin because dockside fish cleaning facilities are too proximate to the waters sought to be protected. Accordingly, the evidence of record reveals that, for reasonable assurances to be provided that fish cleaning debris will not be deposited as an organic, nutrient pollutant in the waters of the basin, any fish cleaning facility should be placed a significant, reasonable distance from the dockage facilities on the upland with discharge of the waste into an appropriate waste disposal system, which the Applicant proposes to install. Such should be an additional condition to granting a permit. In addition to the above, there were no other water quality issues presented in this proceeding. In view of the fact that water quality may be enhanced by installation of the project with the above conditions and proposals by the Applicant, the project as presently proposed will reasonably assure that state water quality standards are not violated by the fact of the installation and operation of the proposed project and attendant boating activities. Public Interest Standards Section 403.918(2), Florida Statutes It was not established that the proposed project will adversely affect the public health, safety or welfare or the property of others in a significant way. The main concern regarding the "public welfare" or "property of others" was feared adverse impacts of increased boat usage in the canal with attendant wakes and erosion of shoreline property. These concerns are alleviated by two factors. First, almost all the canal front property involved is presently seawalled, thereby substantially reducing the impact of waves from boats. Secondly, the Applicant has agreed and the Department will require, that the Applicant post "idle speed--no wake" signs at both the entrance to the canal and at the end of the canal at the basin within the Applicant's own property. Additionally, the canal boundaries are largely developed with approximately 40 developed lots with approximately as many attendant boats already using the canal. The relatively small number of additional boats that the proposed project will entail will not significantly add to any erosion problem due to boat wakes, which will be alleviated in any event because of the fortified shorelines already existing and because of the use of the signs with attendant citizen reporting of excessive boat speeds to the Applicant's management as well as to the Department of Natural Resources Marine Patrol. In conjunction with the above-discussed monitoring plan to be imposed as a condition to the permit consideration should be given by the Department and the Applicant to obtaining necessary authority (i.e. from the Department of Natural Resources and the U.S. Army Corps of Engineers) for posting buoys or other similar partial obstruction devices at strategic locations in the canal channel to prevent boats from having the ability to operate on a straight course at high throttle levels when traversing the channel. This, too, should be a condition incorporated in the permit. The project will not adversely affect the conservation of fish and wildlife, including endangered, threatened species or their habitats. The evidence reflects that on rare occasions manatees have been seen in or in the vicinity of the canal, although the evidence does not reveal that this is truly a manatee habitat area. In conjunction with the posting of idle speed--no wake signs, the Applicant should be required to post signs indicating that it is an area frequented by manatees and urging attendant caution in boat operation. Although there will be some net loss of existing mangroves at the basin, at least 90 percent of the extant mangroves will remain. The record reveals that for unknown reasons, and at a time prior to the institution of this proceeding, the Applicant removed or cut some of the existing mangrove growth at the basin site. The permit should be conditioned upon the Applicant replanting or allowing regrowth of the mangroves so removed or altered. Additionally, it having been shown that the walkways between the landward deck and the boardwalk supported by pilings in the water of the basin are for pedestrian use, it was not established as necessary that the walkways should be six feet wide and of the total number depicted in the Applicant's design and plans. The presence of the boardwalks connecting the landward deck and the waterward boardwalk are the direct cause of ten percent removal of the existing mangroves due to the mangroves beneath the walkways being shaded from the sunlight. Accordingly, the Applicant, as a condition to the permit, should be required to either redesign the walkways so that they are significantly narrower than those proposed or reduce the number of these bridges over the mangroves by 50 percent so that only a maximum of approximately five percent of the extant mangroves will be ultimately removed or destroyed. Despite the fact that manatees have been seen in the canal, the habitat in the canal and basin is not favorable for attracting manatees and, additionally placement of the marina away from a pristine natural area as is the situation here will generally tend to have much less of an adverse impact on fish and wildlife than if the marina were placed in a pristine natural area often frequented by manatees and other endangered species. The proposed project will not adversely affect navigation or cause harmful erosion or shoaling. The evidence establishes that the small numbers of additional boats using the canal as a result of the project will not cause additional navigation problems of any significance. The possible erosion caused by boat wakes already is an existing condition and the small number of boats which would be added to present traffic in the canal as a result of the project will not substantially exacerbate any problem that exists, especially in view of the conditions which will be imposed and are discussed above. The proposed project will not adversely affect fishing, recreational values or marine productivity in the vicinity of the project. For the reasons referenced above, there will be no water quality problems occasioned as a result of this project provided the conditions found to be necessary herein are imposed on the permit, the project construction and the project operation. If these are accomplished, there will be no adverse effect on fish and wildlife. Fishing, recreation and marine productivity in the area in turn will not be adversely affected from a water quality standpoint. Additionally, the proposed project will have the positive impact of enhancing the public recreational value of the area since it will offer public facilities for people seeking to navigate the state waters in the vicinity of the project by the provision of a small amount of additional dockage space. Maintenance of the mangroves in the manner depicted above will maintain and indeed, to a small degree, enhance marine productivity. The members of the public presently using the canal and basin area to fish, swim or perform similar activities will be able to continue doing so. In short, the project will not adversely affect marine productivity. There is no evidence of record to indicate that the project will adversely affect historical or archaeological resources. Concerning the "permanence" criteria under the above-cited statutory subsection, the project will indeed be of a permanent nature. The operating permit which the Department will require, will determine, with the conditions incorporated in it, whether or not the project remains a permanent structure. That is, if the various water quality parameters and the various considerations in the above-cited public interest provisions are not complied with, alteration of the project or even ultimate removal of the project may be required. Concerning the public interest criteria regarding current conditions and relative value of the functions being performed by the area involved, the project as proposed to be constructed and operated will not cause any adverse impact on current conditions and relative value of the resources of the project area as a functioning habitat for marine life. The functions and value of the area as a habitat for fish and wildlife and as an area of marine productivity will be unaltered in its post-development state, provided the conditions referenced herein are imposed, especially those related to protecting water quality from the impacts of boat operation, human wastes and waste attendant to fish cleaning operations. Cumulative Impact There have been no similar permit applications submitted to the Department in the past five years for projects in this canal and basin system. In fact, there have been only three or four shoreline dockage facilities permitted by the Department within a four square mile area in the vicinity of the proposed project. There are approximately 40 lots along the canal leading up to the Tavernier Harbor basin. The majority of these lots have already been developed with single family residences and the majority of them already have seawalls with dockage capability. The development of the few remaining undeveloped lots along the canal, coupled with the installation of the proposed project, should not significantly add to the cumulative effect upon water quality and the public interest parameters discussed above. There is only one other pending dock permit application received by the Department for any area near the proposed project. Thus, there will not be any cumulative adverse effect causing violation of any of the water quality or public interest standards at issue if the proposed project is built and operated and exists with other proposed or existing facilities In addition to the above conditions, Tavernier Harbor, Inc. has agreed to devise a contingency plan concerning oil spill containment and removal to be utilized in the event of a spill, which shall be submitted to the Department for review and changes as necessary prior to the commencement of the project's construction. The Applicant has agreed that all perimeter docking areas will be aligned waterward of the mangroves, whereas the restaurant deck will be placed landward of the mangroves. The Applicant has agreed to conduct water quality monitoring of the canal to include a minimum of one year pre- construction data and a minimum of two years of data collected after the project has been constructed and is operating. The Applicant will apply for a long-term operating permit for the mooring facilities and agrees to continue - monitoring and to implement necessary changes to marina design or management as directed by the Department in order to maintain water quality standards on a permanent basis. Tavernier Harbor, Inc. will also institute, prior to issuance of the operation permit, a maintenance program to permanently ensure removal of floating debris from the basin and project site. The Applicant has agreed and should be required to provide sewage pump out and treatment facilities capable of providing upland disposal and treatment of sewage and will provide an upland area well removed from the basin waters and the mangrove fringe for the conducting of fish cleaning operations and disposal of related waste material. The Applicant has agreed, and the permit should be conditioned upon, the allowance of only seven permanently moored sport fishing boats at the site and restriction of the use of the boardwalk waterward of the mangroves to only be used by "transient boats," with no permanently moored boats docked thereto. In summary, it has been established that the project will not degrade state water quality standards or the public interest criteria referenced above. The basin at the project site presently meets state water quality standards with the minor exception of occasional deficient levels of dissolved oxygen which naturally occur at the site.
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, therefore RECOMMENDED that the application of Tavernier Harbor, Inc. for the dredge and fill permit sub judice be granted, provided that the terms and conditions enumerated in the above Findings of Fact are incorporated in the permit as mandatory conditions. DONE and ORDERED this 29th of June, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2057 Petitioner's Proposed Findings of Fact: 1-3. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted as to the first two sentences but not as dispositive of the material issues presented. Accepted except for the first and last sentences which are contrary to the preponderant evidence. Rejected as to its material import. Rejected as contrary to the preponderant evidence and as subordinate to the Hearing Officer's finding on this subject matter. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Rejected as contrary to the greater weight of the evidence. Rejected as not dispositive of the material issues presented. Respondent Tavernier Harbor, Inc.'s Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as subordinate to Hearing Officer's findings. 7-13. Accepted. 14. Rejected as subordinate to Hearing Officer's findings. 15-20. Accepted. 21. Rejected as subordinate to Hearing Officer's findings. 22-23. Accepted. Respondent Department's Proposed Findings of Fact: 1. Rejected as subordinate to Hearing Officer's findings. 2-30. Accepted. COPIES FURNISHED: James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. 317 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issues set forth in DOAH Case No. 84-3810 concern the question of whether the State of Florida, Department of Environmental Regulation (DER) should issue a permit to Homer Smith d/b/a Homer Smith Seafood (Homer Smith) to construct a wastewater treatment facility which is constituted of a screening mechanism, dissolved air flotation treatment system, sludge drying bed, pumping station and subaqueous pipeline. In the related action, DOAH Case No. 84-3811, the question is raised whether DER should issue a dredge and fill permit to Homer Smith for the installation of the aforementioned pipeline along submerged lands in Trout Creek, Palmo Cove and the St. Johns River.
Findings Of Fact Introduction and Background In 1982, Homer Smith, under the name of Homer Smith Seafood, established a calico scallop processing facility in the vicinity of the intersection of State Road 13 and Trout Creek in St. Johns County, Florida. From that point forward, Smith has owned and operated the processing plant. His plant adjoins Trout Creek, which is a tributary to the St. Johns River. Both Trout Creek and the St. Johns River are tidally influenced waters that are classified as Class III surface waters under Rule 17-3.161, Florida Administrative Code. The processing undertaken by Smith's operation at Trout Creek contemplates the preparation of the scallops for human consumption. In particular, it involves the purchase of calico scallops from Port Canaveral, Florida, after which the scallops are transported by refrigerated trucks to the processing plant. They are then unloaded into metal hoppers and directed into rotating tumblers which separate out the scallops from sand, mud and other extraneous material. The scallops are placed in a steam tumbler that removes the shells and then passed through a flow tank that washes away sand, grit and shell particles. The scallops are next passed through eviscerators. These eviscerators are long tubes of aluminum with roughened surfaces that pull the viscera off of the scallops. The detached scallops are then sent along a conveyor belt, with scallops in need of further cleaning being picked out and sent to a second eviscerator. The eviscerated scallops are then chilled and packed for marketing. It is the viscera and wastewater associated with this material that is the subject of permitting. Homer Smith is one of about six automated scallop processing plants located in Florida. Two other plants are within St. Johns County, on the San Sebastian River in St. Augustine, Florida. Three other plants are located in Port Canaveral, Florida. When Smith commenced his operation of the scallop processing plant in the summer of 1982, he discharged the scallop processing wastewater into an area described as a swamp with an associated canal which connected to Trout Creek. By the fall of 1982, Smith had been told by representatives of the Department of Environmental Regulation that to operate his facility with the discharge would require a permit(s) from DER. At the time of this discussion, automatic scallop processing was an industry for which appropriate wastewater treatment alternatives had not been specifically identified by the Department of Environmental Regulation or the United States Environmental Protection Agency. This was and continues to be the case as it relates to the promulgation of technology-based effluent limitations designed for calico scallop processors. This circumstance is unlike the situation for most other industries for which DER has established technology-based effluent limitations. To rectify this situation, Florida Laws 85-231 at Section 403.0861, Florida Statutes, requires DER to promulgate technology-based effluent limitations for calico scallop processors by December 1986. In the interim, consideration of any permits that might be afforded the calico scallop processors by the exercise of DER's regulatory authority must be done on a case-by-case basis, when examining the question of technology-based effluent limitations. DER sent a warning letter to Smith on April 20, 1983, informing the processor that discarding its wastewater into Trout Creek without a DER permit constituted a violation of state law. After the warning letter, scallop harvesting declined to the point that by mid-June of 1983 the plant had closed down, and it did not reopen until the middle part of September 1983. Upon the recommencement of operations, DER issued a cease and desist notice and ordered Smith to quit the discharge of wastewater from the facility into Trout Creek. On the topic of the cease and desist, through litigation, Smith has been allowed the right to conduct interim operation of his business which involves direct discharge of wastewater into Trout Creek, pending assessment of wastewater treatment alternatives and pursuit of appropriate DER permits. 1/ When Smith filed for permits on April 10, 1984, he asked for permission to dredge and fill and for construction rights pertaining to industrial wastewater discharge into the St. Johns River. The application of April 10, 1984, involved the installation of a wastewater treatment system and an associated outfall pipeline to transport treated wastewater to the St. Johns River from the plant location. This system would utilize a series of settling tanks and a shell-filter lagoon as the principal wastewater treatment. DER, following evaluation, gave notice in October 1984 of its intent to issue permits related to dredge and fill and the construction of the wastewater treatment facility. In the face of that notification, the present Petitioners offered a timely challenge to the issuance of any DER permits. In considering treatment alternatives, Homer Smith had employed various consultants and discovered that treatment beyond coarse screening had not been attempted in processing calico scallop wastewater. Those consultants were of the opinion that conventional treatment methods such as clarification, sand filtration, vortex separation, breakpoint chlorination, polymers and spray irrigation were of limited viability due to the inability to remove key constituents within the waste stream or based upon certain operational difficulties that they thought would be experienced in attempting those methods of treatment. As envisioned by the April 10, 1984, application for permit, interim treatment of the wastewater was provided by the use of a series of settling tanks and a shell-filter lagoon, within which system adjustments were made to the delivery of wastewater treatment. The April 10, 1984, permit application by Smith did not envision any chemical treatment of the wastewater aside from that which might occur in association with the settling and filtration through the shell-filter lagoon. Following DER's statement of intent to issue a permit for construction of the wastewater treatment facility as described in the April 10, 1984, application by Smith, DER became concerned about the potential toxicity of calico scallop wastewater, based upon its own studies. As a consequence, Smith amended the application for wastewater treatment facility to include use of chemical coagulation and flotation. This amendment occurred in March 1985, and the wastewater treatment process in that application envisioned the use of an electroflotation wastewater system. In view of toxicity problems experienced with the testing related to the use of an electroflotation wastewater treatment system, this treatment alternative was discarded in favor of a dissolved air flotation (DAF) system. This system was pursuant to an amendment to the application effective May 31, 1985. This amendment of May 1985 was in furtherance of the order of the hearing officer setting a deadline for amendments to the application. DER issued an amended intent to grant permits for the DAF unit and the associated pipeline and that action dates from June 28, 1985. The Petitioners oppose the grant of these permits for the DAF unit and pipeline, and under the auspices of their initial petition have made a timely challenge to the grant of a permit for the installation of the DAF wastewater treatment unit and associated pipeline. It is the DAF unit and pipeline that will be considered in substance in the course of this recommended order. On July 6, 1984, Smith sought an easement from the State of Florida, Department of Natural Resources (DNR) for the installation of the pipeline. This was necessary in view of the fact that the pipeline would traverse sovereignty lands which were located beneath Trout Creek, Palmo Cove and the St. Johns River. On December 17, 1984, DNR issued a notice of intent to submit that application to the Board of Trustees of the Internal Improvement Trust Fund with a recommendation of approval. This action was challenged by the Petitioners on January 7, 1985, in a petition for formal hearing challenging the grant of the easement. DOAH Case No. 85-0277 concerns this challenge to grant of an easement. Originally, by action of January 28, 1985, the easement case was consolidated with the present DER permit actions. At the instigation of DNR, the easement case was severed from consideration with the present action. The order of severance was entered on July 31, 1985. The DNR case will be heard on a future date yet to be established. The DNR case was severed because that agency preferred to see test results of treatment efficiencies following the construction of the DAF unit. By contrast, the present DER cases contemplate a decision being reached on the acceptability of the construction of the DAF unit and attendant features, together with the pipeline on the basis of theoretical viability of this entire system. This arrangement would be in phases in which the construction of the upland treatment system would occur within 90 days of the receipt of any construction permit from DER, followed by a second phase within which Smith would construct the pipeline within 60 days of receipt of any other necessary governmental approval, such as the DNR easement approval. Furthermore, DER would wish to see the results of an integrated treatment system involving the upland treatment by the DAF unit and its attendant features and the use of the pipeline and the availability of a mixing zone, that is to say the end of pipe discharge, before deciding on the ultimate question of the grant of an operating permit for the wastewater treatment system. The quandary presented by these arrangements concerns the fact that discharge from the DAF treatment unit would be temporarily introduced into Trout Creek, pending the decision by DNR to grant an easement for the pipeline and the necessary time to install that pipeline. Given the difficult circumstances of these actions, there is raised the question of the propriety of discharging wastewater into Trout Creek pending resolution of the question of whether DNR wishes to grant an easement to place the pipeline over sovereignty submerged lands. This is a perplexing question in view of the fact that DNR requested severance from the present action, thereby promoting further delay in the time between any installation of the upland treatment system and the pipeline. Finally, Trout Creek is an ecosystem which has undergone considerable stress in the past, and it is more susceptible to the influences of pollution than the St. Johns River would be as a point of ultimate discharge from the pipeline. This dilemma is addressed in greater detail in subsequent sections within the recommended order. Petitioner River Systems Preservation, Inc., is a nonprofit organization comprised of approximately seven hundred persons. The focus of the organization is to protect and enhance the environment of northeast Florida. The individual Petitioners, Pinkham E. Pacetti, Robert D. Maley, Ruth M. Whitman and others, are members of the corporation who own property or live near the scallop processing plant of Respondent Smith. In addition, Pacetti owns a marina and recreational fishing camp that is located across Trout Creek from Smith's plant. Pacetti's fish camp dates from 1929. On the occasion of the opportunity for the public to offer their comments about this project, a significant number of persons made presentations at the public hearing on August 29, 1985. Some members of the public favored the project and others were opposed to the grant of any permits. St. Johns County Board of County Commissioners, in the person of Commissioner Sarah Bailey, indicated opposition to the project, together with Bill Basford, President of the Jacksonville City Council. Warren Moody, the vice-chairman of the Jacksonville Waterways Authority spoke in opposition to the project. The Florida Wildlife Federation and the Jacksonville Audubon Society expressed opposition to the project. The officials related the fact of the expenditure of considerable amounts of public tax dollars to improve water quality in the St. Johns River and their concern that those expenditures not be squandered with the advent of some damage to the St. Johns River by allowing the permits in question to be issued. These officials considered the St. Johns River to be a significant resource which they are committed to protecting. The City of Jacksonville, Clay County, Green Cove Springs, the Jacksonville Waterways Authority, the Northeast Florida Regional Planning Council and St. Johns County expressed opposition to the project contemplated by the present permit application, through the adoption of certain resolutions. These broad-based statements of opposition were not spoken to in the course of the hearing by members of any technical staffs to these governmental institutions. Private members of the public, some of whom are affiliated with River Systems Preservation, Inc., expressed concern about water quality violations, harm to fish and other environmental degradations that have been caused by the Homer Smith operation in the past and their belief that these problems will persist if the permits at issue are granted. Those persons who favored the project, in terms of public discussion, primarily centered on the idea that, in the estimation of those witnesses, fairness demanded that Smith be afforded an opportunity to demonstrate that this proposed system of treatment was sound and the quality of the water being discharged from the Homer Smith plant was not as bothersome as had been portrayed by the persons who opposed the grant of environmental permits. Industrial Wastewater Construction Permit Treatment System Description of Homer Smith's Plant and Its Operation. The source of water used for the processing of the scallops at the Homer Smith plant is a well which is located on that property. Homer Smith is allowed to withdraw 300,000 gallons of water per day in accordance with a consumptive use permit that has been issued by the St. Johns River Water Management District. To ensure Smith's compliance with this permit, a metering device is located on the well. Typically, the plant operates an eighteen-hour day, five days a week, using water at a rate of 200 gallons per minute. This would equate to 215,000 gallons per day over an eighteen-hour day. Prior to the imposition of restrictions by the Department of Environmental Regulation through the consent order, this facility had processed as much as 40,000 pounds of scallops each day, for a total of 36,000 gallons each week, at a gross revenue figure of $225,000 per week. Characteristics and Frequency of Effluent Discharge The wastewater generated by the scallop processing that is done at the Homer Smith plant is principally constituted of the well water used to clean the scallops, proteinaceous organic materials, and metals. The metals are introduced into the wastewater stream from the scallop tissue. The wastewater stream also has a certain amount of sand and grit, together with shell fragments. The concentrations of organic materials within the wastewater stream are at high levels. There is also an amount of fecal coliform bacteria and suspended solids. The pollution sources within the wastewater stream include total suspended solids (TSS), biochemical oxygen demand (BOD), nutrients (nitrogen and phosphorus) and the coliform bacteria. In the neighborhood of 30 percent of the BOD in the wastewater is soluble. The balance of the BOD is associated with the suspended solids. With time the organic materials in the wastewater stream will decompose and with the decomposition present certain organic decomposition products, which would include ammonia, amines and sulfides. Heavy metals in the wastewater have been in the scallop tissue and are released with the cleaning of the scallops. These metals include cadmium, copper, zinc, iron, manganese, silver and arsenic. The presence of these metals within the tissues of the scallops are there in view of the fact that the scallops are "filter-feeders" which have taken in these elements or metals that naturally occur in the ocean water. The permit application contemplates an average of five days a week of operation for eighteen hours a day. Notwithstanding the fact that in the past the Homer Smith Seafood operation had processed scallops seven day week, twenty- four hours per day, Smith does not desire to operate more than five and a half days a week in the future. That is perceived to mean five eighteen-hour days and a twelve-hour day on the sixth day. The treatment system contemplated here is for a flow volume of around 200 gallons per minute during normal operation. The system can operate as high as 300 gallons per minute. That latter figure approaches the design capabilities of the treatment system proposed. Wastewater is discharged only when scallops are being processed. There is basically 1:1 ratio between the volume of well water used to process the scallops and the amount of wastewater discharged. Proposed Treatment System and Alternatives As already stated, there is no specific industry standard set forth in the DER rules which would describe technology-based standards for the treatment of calico scallop wastewater. In those instances where the agency is confronted with an industry for which technology-based standards have not been established, DER examines the question of whether that effluent is amenable to biological treatment as contemplated in Rule 17-6.300(1)(n)1., Florida Administrative Code, as an alternative. Biological treatment is a treatment form normally associated with domestic waste and the imposition of this treatment technique is in furtherance of achieving a secondary treatment standard found in Chapter 17-6, Florida Administrative Code, which results in 20 mg/L of BOD and TSS, or 90 percent removal of those constituents, whichever is the greater performance in removal efficiency. In the absence of specific standards related to the calico scallop industry, and in the face of the interpretation of its rules in which DER calls for an examination of the possibility of biological treatment as an alternative to treatment specifically described for a given industry, it was incumbent upon this Applicant to examine the viability of biological treatment of the scallop wastewater product. The Applicant has considered biological treatment as an alternative and rejected that treatment form, in that Smith's consultants believe the wastewater is not amenable to biological treatment. By contrast, Petitioners' consultants believe that biological treatment should be the principal focus in treating the scallop wastewater and contend that biological treatment is a more viable choice when contrasted with the option chosen by the Applicant. If this waste is not amenable to biological treatment, Rule 17-6.300(1)(n)1., Florida Administrative Code, envisions an acceptable or minimum level of secondary treatment shall be determined on a case-by-case basis. In the instance where biological treatment is not a reasonable choice, the Applicant is expected to achieve treatment results which are comparable to those arrived at in treating domestic waste by the use of biological treatment techniques. On this occasion, DER had not established what they believe to be a comparable degree of treatment for calico scallop waste, assuming the unavailability of biological treatment. The present case is a matter of first impression. As a result, the idea of a comparable degree of treatment shall be defined in this hearing process, assuming the inefficacy of biological treatment. In that event, DER must be assured that the proposed treatment plan has an efficiency that rivals the success which biological treatment promotes with domestic waste, taking into account the quality of the effluent prior to treatment, available technology, other permitting criteria and the ambient conditions where the waste stream is being discharged. In arguing in favor of biological treatment, Petitioners pose the possibility of an integrated system in which primary settling tanks or clarifiers would be used together with a biological treatment step, which is referred to as a trickling filter, followed by final settling by the use of tanks or clarifiers in an effort to achieve BOD concentrations in the range of 200 mg/L to 400 mg/L. In this connection, the dissolved air flotation system is seen in the role of alternative to the initial stage of settling of the constituents within the wastewater stream. It is not regarded as the principal means of treatment of the waste. The trickling filter system as a biological treatment medium involves the use of a bacterial culture for the purpose of consuming the oxygen-demanding constituents, BOD. The trickling filter technique, if a viable choice, has the ability to remove 70 to 75 percent of BOD and TSS. Petitioners suggest further treatment of the waste beyond primary and final settling and trickling filter can be afforded by involving activated sludge, which according to their experts would end up with a biological oxygen demand in the 20 mg/L range. Although the constituents of the Smith plant's waste are of a highly organic nature, and, at first blush a candidate for biological treatment by use of the trickling filter, the problem with this form of treatment has to do with the intermittent flow in the Smith operation. This intermittent flow is caused by the fact that the plant does not operate throughout the year. The plant operations are seasonal, depending on calico scallop harvesting which does not occur on a routine basis. Therefore, the problem is presented of trying to keep the biological treatment system "alive" and operating at levels of efficiency which can be expected to maintain the percentage of removal of BOD and TSS that a healthy system can deliver. The bacteria colonies which are vital to the success of the biological treatment system must be fed on a continuous basis to maintain balance in the population of the colony. This would be a difficult undertaking with the Smith operation, given the interruptions in operations which could lead to the decline in the bacterial population and a poorer quality of treatment once the operations were resumed. This finding takes into account the fact that the colony can survive for a week or two by simply recirculating water over the filter. Obviously, in order to maintain necessary efficiencies within this biological treatment, the bacteria must do more than survive. The further suggestion that has been offered that the bacteria could be sustained for longer periods of time by feeding them seafood waste or dog food are not found to achieve the level of efficiency in the operation that would be necessary in posing biological treatment as an alternative. Again, it is more of an intervening measure designed to assure the survival of bacteria pending the continuation of the operations of the plant, as contrasted with a system which is continual and taking into account the uniformity of the waste product more efficient. Another problem with feeding the bacteria when the plant is not operating is that of disposing of the waste produced when this auxiliary feeding is occurring. Just as importantly, biological treatment is questionable given the long retention times necessary for that process and the build-up of toxic levels or concentrations of ammonia. The Applicant had employed an aerated lagoon in attempting to treat the waste and experienced problems with ammonia build up. Although this system did not call for the degree of treatment of the waste prior to the introduction into the lagoon that is contemplated by the present proposal of the Applicant, it does point to the fact of the problems with ammonia in the biological treatment system. Dr. Grantham, a witness whose testimony was presented by the Petitioner, conceded the difficulty of removing ammonia from the trickling filter. Moreover, the biological treatment system is not especially efficient in removing metals and phosphorus from the wastewater. Alternative treatment would be necessary to gain better efficiency in removals of those constituents. The trickling filter is expected to gain 50 percent metals removal, which is inadequate given the concentrations of heavy metals found in the scallop wastewater. Phosphorus could be removed after treatment by the trickling filter by the use of lime or alum. Assuming optimum conditions in the use of biological treatment after primary and final settling, thereby arriving at a BOD level of 200 mg/L, it would then be necessary to make further treatment by the use of activated sludge to see 20 mg/L BOD. The problem with activated sludge is related to the fact that this form of treatment is particularly sensitive to interruptions in flow, which are to be expected in this wastewater treatment setting. On balance, biological treatment does not present a viable choice in treating scallop waste. That leaves for consideration the question of whether the Applicant's proposal would afford a comparable degree of treatment to that expected in the use of biological treatment of domestic waste. The manufacturer of the dissolved air flotation unit or DAF system proposed, known as the Krofta "Supracell," offers another piece of equipment known as the "Sandcell" which in addition to the provision for dissolved air flotation provides sand filtration. The Sandcell might arrive at BOD levels of 400 mg/L. However, the testimony of the witness Lawrence K. Wang, who is intimately familiar with the Krofta products, in responding to questions about the use of the Sandcell system and suggestion that the system would arrive at 400 mg/L BOD responded "could be." This answer does not verify improvement through the contribution of sand filtration. For that reason inclusion of a Sandcell for filtration of BOD is not suggested in this fact finding and the system as proposed must be sufficient in its own right. Having realized the need to provide greater treatment than screening or filtering the waste stream, the Applicant attempted to design a treatment system using flotation technology together with chemical precipitation and coagulation. At first the Applicant examined the possibility of the use of electroflotation (EF). This involved the collection of wastewater in a retention tank and the generation of an electric current to create a series of bubbles to float insoluble flocs. Those flocs are caused by the use of ferric chloride, sodium hydroxide and various polymers which are added to the waste stream. The flocs are then pushed to the top of the chamber by the air bubbles, and this particulate matter is skimmed off by the use of a paddle. Pilot testing was done of the electroflotation technology and showed promising results, so promising that a full-scale electroflotation unit was installed and tested. The full-scale electroflotation showed reasonable removal of BOD, TSS, nutrients, coliform and trace metals. This technique was discarded, however, when bioassay testing of the treated effluent was not successful. In examining the explanation for the failure, the experts of the Applicant were of the opinion that certain chemical reactions were occurring as a result of the passage of the electrical current through the wastewater stream. When this problem with acute toxicity could not be overcome through a series of adjustments to the process, the Applicant decided to test another form of flotation, which is referred to as dissolved air flotation (DAF). This system employs the use of chemicals to create insoluble flocs. Unlike the electroflotation unit, though, it does not utilize electrical currents to create the air bubbles employed in the flotation. The dissolved air flotation thereby avoids problems of toxicity which might be attributed to the passage of electrical current through the water column. The present system as proposed by the Applicant has a number of components. The first component of treatment involves the passage of raw wastewater through a mechanical screening device, which is designed to remove a certain number of particulates by catching those materials on the screen. That material is then removed from the plant and disposed of off site. The balance of the wastewater after this first stage of treatment passes into a sump area and from there into a primary mix/ aeration tank. This water is then chemically treated to facilitate the formation of insoluble flocs. The chemically treated wastewater then enters a premanufactured Krofta Supracell 15 DAF unit which is designed to form bubbles by the use of pressurized air, with those bubbles floating the waste materials within the floc to the surface. Again, this method does not use electrolysis. The floated solid materials are then skimmed from the surface and directed to a holding tank and subsequently pumped to sludge drying beds. Some of the treated wastewater is recycled through the DAF unit after pressurization and in furtherance of forming the necessary bubbles for the DAF unit. The balance of the water is directed to a force main lift station. This water would then be transported through the eight-inch PVC pipe some 13,000 feet into the main channel of the St. Johns River where it is distributed through a five port diffuser. The screening mechanism spoken of had been installed in mid-December 1984 and has been used since that time to filter the wastewater. The screening mechanism is in substitution of settling tanks and shell pits. The shell pits which had been used before presented problems with odors as well as the ammonia build up which has been addressed in a prior paragraph. The removal efficiency of the screening mechanism is 30 percent of particulates associated with pollution parameters, as example BOD, total Kjeldahl nitrogen, total phosphorus and TSS. The frequency of the transport of these screened materials to the off site disposal is four to six times a day and the screen is decontaminated at the end of each day when the operations are closed. The application contemplates the same operating procedures of disposal and maintenance with the advent of any construction permit. The primary mix/aeration tank aerates the wastewater and through that process and the retention time contemplated, equalizes the flow regime and promotes a more balanced concentration of waste materials prior to the introduction of that wastewater for chemical coagulation and flotation. This step in the treatment process enhances the treatment efficiency. Some question was raised by the Petitioners on the size of the primary mix-aeration tank as to whether that tank was sufficient to equalize the flow, and conversely, the impacts of having too much retention time built into that tank, which would promote the build-up of toxic concentrations of ammonia in the wastewater. The retention time within the sump and the primary mix-aeration tank approximates one and one-half hours. The retention time and size of the primary mix-aeration tank are found to be acceptable. This design appropriately addresses concerns about the build-up of decomposition products and toxicity, to include ammonia. The sludge which collects in the primary mix-aeration tank will be pumped back to the sump pit by return flow. The sump pit itself will be pumped out in the fashion of cleaning a septic tank on the basis of once a week. The sump pit also receives the return flow of leachate from the sludge drying bed. Once equalization of flow is achieved in the primary mix-aeration tank, that wastewater is then treated by the use of alum, sodium aluminate and polymers. The purpose of this treatment is to convert soluble and insoluble organic matter such as TSS and BOD, trace elements and phosphorus into insoluble flocs that can be removed by flotation. These combinations of chemicals and dosage rates have been tested in electroflotation and dissolved air flotation bench and pilot scales for use associated with this project and a list of appropriate chemicals and ranges of dosage rates has been determined. It will be necessary for these chemicals and general dosages to be adjusted in the full- scale operation under terms of the construction permit. This facet of the treatment process must be closely monitored. Once the wastewater stream has received the chemical treatment, it is introduced into the Krofta Supracell 15 DAF unit. This unit is 15 feet in diameter, and within this cylinder bubbles are generated by pressurizing some of the chemically treated wastewater and potentially clean tap water. The use of clean tap water promotes dilution of the wastewater stream as well as greater efficiency in the production of the bubbles. Chemically treated wastewater is brought into the cylinder through the back of a revolving arm that moves around a center column of the DAF unit at the speed of the effluent flow. The purpose of this mechanical arrangement is to eliminate horizontal water velocity, to protect the integrity of the flocs that are being formed by the use of the chemicals. Those flocs float to the surface in a few minutes' time, given the normal turbulence and shallow depth of the DAF unit. This limited retention time also avoids ammonia build up. The floating material is then scooped and poured into a stationary center section and is discharged by gravity to the sludge holding tank. Wiper blades which are attached to the revolving arm scrape the bottom and sides of the tank and discharge any settled sludge to a built-in sump in the DAF unit. These materials which are settled in the bottom of the DAF cylinder are transported through the sludge holding tank and eventually placed in the sludge drying beds. The treated wastewater is removed by an extraction pipe associated with the center section of the DAF unit. It is then discharged. The use of clean tap water from the well and the ability to recycle the waste stream can promote greater treatment efficiency in terms of removal of undesirable constituents of the waste stream and the reduction of concentrations of those materials. As a measurement, approximately 8 percent of the wastewater flow will be removed as sludge. This sludge is sufficiently aerated to be reduced in volume by about one-half over a period of ten to thirty minutes in the sludge holding tank. It is then sent to the sludge drying beds. The sludge drying beds are designed to accommodate 30,000 gallons of sludge. They are 60 feet long, 25 feet wide and 4 feet deep. Those drying beds are of greater size than is necessary to accommodate the volume of sludge. The sludge drying beds have a sand and gravel bottom. The water drains from the sludge as leachate and returns to the sump pit in the treatment system at a rate of five to ten gallons a minute. Some concern has been expressed that the "gelatinous" nature of the sludge will make it very difficult to dewater or dry. This opinion is held by experts of the Petitioners, notwithstanding the fact that polymers are used in the treatment process. One expert in particular did not believe that the sludge would adequately dry. Having Considered the evidence, the opinion that the sludge will not dry sufficiently is rejected. Nonetheless, it is incumbent upon the Applicant to monitor drying conditions of the sludge very carefully and, if need be, to add some chemical such as calcium hydroxide to enhance the drying capacity of the sludge material. It is anticipated that the sludge will be removed once a day and this arrangement should be adhered to. With adequate drying, the sludge material can be removed with the use of shovels, rakes and a front-end loader as proposed by the Applicant. With frequent removal and adequate drying, problems with odors can be overcome, and problems with ammonia build up and the generation of unreasonable levels of bacteria can be avoided. Should problems with odors, ammonia and bacteria occur, it would be necessary for the Applicant to purge the drying beds, to include the sand and gravel which had been invested with the sludge materials that had caused the problems. Although Smith has not tested the drying bed leachate as to specific nature, the treatment process can be expected to deal with problems of any build-up of ammonia concentrations, fecal coliform bacteria and other organic decomposition products. This pertains to the ability to remove these offending substances from the site in terms of removal of the residual solids and the ability to treat those parameters within the leachate as the wastewater is cycled through the system. The treated wastewater will be transported to a pumping station by gravity flow and then pumped via the pipeline to the proposed point of discharge in the main channel of the St. Johns River. This pipeline is constituted of fabricated sections of pipe 20 feet in length, connected with bell and spigot joints, rubber gaskets and solvent welding. The treated wastewater is released into the river through a five point diffuser which has three-quarter inch openings angled at ten degrees from the horizontal bottom. The pipeline is anchored with prefilled 80-pound concrete bags attached with polypropelene straps which are placed at 8-foot intervals. These are placed to keep the pipe from floating. The diffuser is supported by four piles driven into the river bottom and surrounded by a series of concrete bags. The purpose of this arrangement is to hold the diffuser in place and to protect it against potential damage from anchors or other possible impact. The Applicant acquiesces in the choice to have the pipeline tested for leaks once a month in the period June through September and every other month during other parts of the year. If leaks are found, the Applicant would be responsible for repairing those leaks. As stated before, it is necessary for the Applicant to receive permission from the State of Florida to be granted an easement before the pipe can be installed. Prior to that permission being granted, the treated wastewater would be placed in Trout Creek, which is adjacent to the processing plant. Predicted End of Pipeline Quality of the Effluent In trying to predict the quality of effluent at the end of the pipeline, bench scale and pilot scale testing was done related to the DAF technology. This testing was done related to screened wastewater that was collected from the plant in April 1985. In this connection two series of DAF bench scale tests were performed. They related to samples collected on April 18 and 19, 1985, which were packed in ice and shipped directly to a research laboratory in Lenox, Massachusetts, where they were treated with chemicals and a laboratory size DAF unit. The concentration of the wastewater parameters were measured and recorded before and after treatment, and the results of those tests are set forth in the Applicant's Exhibit A-4(B)(3), at Table 2-1. The pilot scale testing that was done in this case related to a 4-foot diameter DAF unit which had been installed at the Homer Smith plant. This testing occurred in April 1985. The basis of the testing was samples taken on April 15 and 19, 1985. Again, wastewater parameters were measured before and after treatment and the results are set forth in Applicant's Exhibit A-4(B)(3), at Table 2-1. When the initial testing was done with the DAF, results for total coliform bacteria uniformly fell below a range of 35 organisms/100 ml. Subsequent pilot tests yielded higher bacterial counts which would indicate that there was a build-up of bacteria within the DAF unit. This verifies the need to require that the DAF unit contemplated by the application be routinely cleaned or sanitized to avoid the build-up problem. TSS in the pilot unit effluent was reduced to 40 mg/L and lower. The capacity for metals removal in the pilot scale testing was good pertaining to copper and zinc. The ability to remove cadmium showed a result of 0.013 and 0.015 mg/L. The best performance in the pilot scale testing related to BOD removal showed a value of 510 mg/L. It should be noted that the bench scale testing and pilot scale testing were in the face of significant variations in the amount of BOD presented by the screened wastewater. This identifies the need to pay close attention to the removal efficiency of the system related to the BOD parameter in order to achieve consistent levels of BOD following treatment. The system under review is referred to as full-scale treatment. This treatment can be expected to exceed the levels achieved in the DAF bench and pilot scale testing because: (a) As a general proposition, treatment efficiency improves as the scale of machinery increases from bench to pilot to full-scale; (b) The bench and pilot scale tests were run without the benefit of the primary mix-aeration tank and the benefits derived from that part of the treatment apparatus, that is to say, uniformity of the flow and better dispersion of the constituents of the wastewater stream, prior to chemical treatment; (c) The pilot DAF unit used exclusively recycled wastewater to undergo pressurization for the creation of the air bubbles. In the course of the hearing it was established that approximately 50 gallons per minute of clean tap water could be brought in to the treatment process resulting in the formation of more bubbles and the facilitation of up to 10 percent greater treatment efficiency based upon that change. The other contribution made by the use of clean tap water was the possibility of as much as a 20 percent dilution of the wastewater stream, in terms of concentration of constituents within the wastewater stream; (d) In a full-scale operation, the opportunity is presented to routinely adjust the chemical dosages as well as select among a range of chemicals in order to achieve the greatest treatment efficiency; (e) In employing routine sanitization of the DAF unit by use of a mild chlorine compound, the tendency to accumulate coliform bacteria can be overcome. Removal of this adverse influence improves the water quality. In traveling through the pipeline, the transit time is in the range of two to three hours. At a normal rate of 250 gallons per minute of discharge, the transit time in the pipeline is 2.25 hours. Given the constituents of the wastewater, bacterial populations can be expected and could conceivably consume sufficient amounts of oxygen to affect the dissolved oxygen levels within the wastewater as it exits the pipe at the diffuser ports. In addition, there is some possibility of ammonia build up within the pipeline. To avoid the build up of bacteria at harmful levels, sanitation of the DAF unit must be accomplished. In addition, the pipeline itself should be flushed with clean water at the close of operations each day and treated with small amounts of chlorine to address bacteria which may form within the pipeline. This avoids the increasing concentrations of ammonia and protects against lowered dissolved oxygen concentrations and the possibility of increased levels of toxic substances in the effluent which might be attributable to the proliferation of bacteria and the build-up of ammonia during the transport through the pipeline. Taking into the account the nature of this wastewater and the velocity associated with the transport and the sanitization of the pipeline, sedimentation associated with organic solids or other materials will not present a problem. The pollution parameters associated with the treated effluent at the point of discharge from the pipeline can be expected to meet Class III orders, excepting unionized ammonia, specific conductance, copper, cadmium, pH and zinc. In order to achieve satisfactory compliance with regulatory requirements related to those parameters, the Applicant has requested a two-meter mixing zone. The purpose of that mixing zone would be to afford an opportunity for dispersion and mixing in the ambient water before imposition of water quality standards. The implications of that mixing zone are discussed in a subsequent section to the fact finding within the Recommended Order. In effect use of the mixing zone will promote compliance with standards pertaining to the subject parameters. Petitioners point out the fact that the Applicant has based its assumptions on the results of treatment on the availability of four sets of data which were obtained from DAF effluent--two sets of data coming from the bench tests and two sets of data from the pilot plant. Further, there is an indication of the variation in quality of the effluent from one test to the next and the need to employ different dosage rates of chemicals in the face of those variations. The full-scale system utilizes a number of techniques to gain some uniformity in the quality of the effluent prior to chemical treatment and thereby some uniformity in the amount of chemicals necessary to treat the effluent. This overall system can then be expected to produce treated wastewater that is basically uniform in its constituents. Petitioners point out the limited amount of data in the testing related to BOD. There were, in fact, only two data points: one related to the bench system and one related to the pilot system pertaining to BOD, both of these the product of different chemical dosages for treatment. Again, the system that is at issue in this proceeding can be expected to arrive at a more consistent level of BOD than is depicted in the results pertaining to bench scale and pilot scale testing. In fact, those results were not remarkably disparate in that the bench sale test produced 560 mg/L and the pilot scale test produced 510 mg/L. While the data related to BOD is limited, it still gives sufficient insight as to the probability of successful full-scale treatment and the test data is found to be a reliable indication of success in achieving the goal of 510 mg/L BOD. Contrary to the Petitioners' perceptions, the treatment efficiency is improved with the system that is under review. Petitioners believe that the bench and pilot scale testing not only is unrepresentative of the full-size DAF system, they also believe that the full-size system represents a lesser quality of treatment. In this regard reference is made to features which would adversely affect the treatment efficiencies. The first of those pertains to leachate which drains from beneath the sludge drying beds and is recirculated to the existing sump pit and added to the waste stream. Sludge which sits in the drying bed does decompose and causes biochemical reactions to occur, as Petitioners suggest. Moreover, no specific testing has been done of the leachate to ascertain the ammonia concentrations, pH or other chemical characteristics. Nonetheless, given the intention to clean out the residual matter within the sump pit frequently, and the flexibility to make that cleanup more routinely, and the fact that this amount of leachate is comparatively small in its ratio to wastewater which is being sent through the system for treatment, the leachate is not found to be an unmanageable problem. Nor is the sludge a problem. Likewise, the amounts of heavy metals within the leachate can be accommodated. Concerns expressed by the Petitioners related to the organic materials in the primary mix-aeration tank that is being returned to the sump pit can also be dealt with by the evacuation of the materials in the bottom of the sump pit. This can be achieved more frequently than on a weekly basis if that becomes necessary, and in doing so avoid problems with concentrations of ammonia, bacteria, amines, sulfides and general organic decomposition products. These materials which are returned to the treatment process as wastewater reintroduced into the primary mix-aeration tank can be adequately addressed in the subsequent treatment that occurs by reaeration, the use of the chemicals and DAF flotation. The retention inherent in the sump pit, primary mix-aeration tank and sludge drying bed has a potential to cause problems with ammonia build-up; however, the problems can be satisfactorily addressed, as well as potential problems with other toxic substances in the effluent, by routinely taking the residual material in the sump pit and sludge drying bed out of the treatment system. While the specific chemicals and precise dosage rates to be used with a full-size DAF system remain open, the basic concept of chemical treatment has been identified sufficiently. The precaution that is necessary is to make certain that close monitoring is made of the results of changes in the chemicals and dosage rates. Likewise, special attention should be paid to the implications of adjustments in the pH of the effluent to make certain that compliance is achieved with the Class III water criterion related to changes in pH above background. Adjustments can be made without violating Class III water standards related to pH. In testing that was done pertaining to the electroflotation effluent, a number of other chemicals were observed, to include trimethylamine, dimethyl sulfide, chloroform and other hydrocarbons. There is some indication of the presence of dichleoroethane, ethylbenezene and other aromatics. The possibility exists that these substances may also be products within the DAF effluent. In that event, the critical question would be whether they have any adverse effect in the sense of influences on the ability of the effluent to pass bioassays and the ability of the effluent to comply with standards related to other parameters such as dissolved oxygen, BOD, and TSS. The routine testing which is called for by the draft permit, which is deemed to be appropriate, would create a satisfactory impression of the materials set forth in the paragraph in the sense of the implications of their presence and allow any necessary adjustments in treatment. While the effluent produced in the testing on the part of the Applicant is different, it is representative, and the treated effluent which will be produced in the full-scale system will be of a better quality and present less adverse impacts than shown in the past testing. Petitioners question whether the Applicant has given a conservative portrayal in analyzing the effluent. In particular, it is urged that the Applicant claimed to be vying for use of the bench scale testing as a conservative depiction of the results of treatment. In this connection, the impression given in the hearing was that of ascendancy in treatment efficiency beyond the use of bench scale, pilot scale and ending in full-scale treatment. As pointed out by Petitioners, in making his case the Applicant has used results of bench and pilot scale testing. As example, use was made of the results of testing in the pilot scale in describing the removal effioiencies related to cadmium, whereas in the measurements of nitrogen concentrations the bench scale result was better than that of the pilot testing and was utilized. The real question is whether the overall testing has given some reasonable indication of success in full-scale treatment. To that end, use of results from either the bench scale or pilot scale testing is appropriate, and those results point to success in the full-scale operation. The system that is proposed is designed to address fluctuations in flow and concentrations in the effluent, given the primary mix-aeration tank contribution and the ability to recycle flow within the DAF unit, with the use of clean tap water. This will allow the Applicant to deal with the remarkable differences in BOD that were seen in the test period, ranging from 900 to 3000 mg/L. COD data as well as BOD data is limited but is found to be an ample depiction of potential treatment efficiencies related to that former parameter. In addition to the aforementioned references to changes in chemicals in the treatment process, Petitioners characterize the use of clean tap water in the recycle flow as being "unsubstantiated speculation." While the use of tap water was discussed in a theoretical vein, that discussion is found to be an accurate assessment of the value of the contribution of clean tap water to the treatment system. Impacts on St. Johns River Ambient Water Quality and Conditions The St. Johns River and the area of the proposed discharge is a riverine estuary. It has a freshwater source flowing from the south and a tidal ocean boundary to the north. The confluence of freshwater flow and tidal influences causes the water movement within this area to be oscillatory. That is to say that at different times the water will flow downstream, to the north, and upstream, to the south. There are occasions in which the net flow over a given tidal cycle will be zero; however, the water is always moving. Conductivity and chloride data indicate that the freshwater flow is the dominant flow compared to tidal influences. The extrapolation of available flow data indicates that there is a net downstream flow of fresh water averaging approximately 6,000 CFS. The St. Johns River at the point of discharge is over one and a half miles wide and relatively shallow with maximum depth in the range of 3 to 3.5 meters. Given the fact of the width and depth in this segment of the river, and the imposition of wind conditions and tidal influence, the water is well mixed and flushed. There is no stratification in this portion of the river. The Applicant looked into the question of current bearing and velocity in depths between two to fourteen feet in the water column. Eleven sampling stations were utilized in arriving at information about current bearing. This observation was over an eleven-nautical-mile stretch of the main channel of the St. Johns River. These stations are depicted on Applicant's Exhibit 38. In this portion of the river the current at all measured depth was flowing up and down the main channel. Within these sections there is no indication of a pronounced subsurface water movement toward the east and west banks of the river. Current velocities within the three stations closest to the POD averaged in the range of 0.5 feet per second and velocities in the other stations found within the main channel were within that range of movement. By contrast current velocities within the embayment areas along the east bank of the river were substantially weaker. DER conducted two studies using tracing dyes poured into the St. Johns River at the approximate point of discharge and monitored the course of dispersement of that dye. During this observation the dye was constantly replenished while being carried on the currents. While the dye remained within the area of the main channel, it stayed on the east side of the river as it moved down river on the outgoing tide in the direction of Smith's Point and the Shands Bridge. As the tide was slowing before the change of tide, the dye drifted for approximately two hours in the immediate vicinity of the point of discharge. The DER dye study was a fairly gross measurement of the direction of water movement within the river beyond the point of discharge. It tended to confirm that the water flow was basically up and down river, depending on whether the tide is incoming or outgoing. The studies were not sufficiently refined to speak with any certainty on the possibility that some part of the flow regime would move toward the east or west bank of the river. Nonetheless, in examining the nature of the shallow embayment areas along the banks of the St. Johns River, they are not seen to be subject to the basic flow regime that is occurring in the main channel during tide events. The bathymetry in this area is such that if the main flow regime was having some influence on the embayment areas, the depths within those embayments would be more similar to the depths found in the main channel of the river. Petitioners have employed a number of dye and drogue measurements to try to give a more accurate depiction of the influence of flow within the main channel upon the dispersion of effluent upon discharge and the possibility of those pollutants reaching the embayment areas. While there is no dispute over the fact that Trout Creek is a tributary to the St. Johns River with some tidal influences being shown in that Creek and there is no dispute that water from the St. Johns River flows in and out of Palmo Cove and Trout Creek, there does not appear to be a significant flow of water from the St. John River into the cove and creek from the main channel, in particular from the area of the point of discharge. One of the witnesses of the Petitioners, Sandy Young, did a dye procedure in which a plume was allowed to develop over a distance of approximately 1,000 feet. Although some slight lateral variation was shown in the dye plume, it did not identify a basic flow pattern toward the embayment areas on the east side of the river. The DER dye study was over a distance of some eight thousand feet and also showed some minor lateral variation. Both of these dye studies tend to show a basic flow pattern within the main channel. The dye study run by the Petitioners' witness White gave the same basic depiction as seen in the studies by DER and Young and did not identify a flow pattern out of the main channel toward the embayment areas. In the drogue studies run by Young three Chlorox bottles were filled to 95 percent of volume with water and released at the point of discharge. They were followed for a period of five hours. They moved initially with the outgoing tide toward Jack Wright Island and then when the tide slowed, the drogues slowed. When the tide changed with the incoming tide, the drogues moved toward the center of Palmo Cove. The drogue studies by Young do tend to indicate that some water was exchanged from the main channel at the point of discharge and the embayment areas. It is not a very exact measurement as it only deals with the surface area of the water column, given the wind and wave conditions existing on that occasion. It is in no way representative of the flow direction of the rest of the water column. Therefore, although it may tend to identify that some of the pollutants leaving the point of discharge may find their way to Palmo Cove, it does not establish that quantity of that pollution dispersion and the significance of that dispersion. Based upon this evidence it cannot be seen to be so revealing that the assumptions made by the applicant in trying to identify the dispersion characteristics of the effluent at point of discharge are negated based upon the results of the drogue study. The drogue study which Young did and the observation of the movement from Smith's Point to Little Florence Cove are no more compelling than the dye studies done at the point of discharge. When the Petitioners suggest that there is some influence by centrifugal force pushing the water to the outside of the curve toward the eastern bank, they are correct. However, the contention by the Petitioners that the incoming and outgoing tides sweep to the eastern shoreline of the St. Johns River moving toward Pacetti Point, Palmo Cove, Florence Cove and Smith Point is not accepted. Again, the general flow regime is up and down the main channel of the river and not primarily to the eastern bank. Finally, the fact that the Tetratech data produced for the benefit of the Applicant showing the flow pattern within the overall water column, which indicated that the general direction is the same at the top or bottom of the water column, did not tend to identify the fact that pollutants throughout the water column will be dispersed into the embayment areas from the point of discharge. The data collected in the main channel seem to establish that the water was flowing up and down the channel at depths below the surface. The question becomes whether the amount of pollutants that are being brought into the embayment areas is in such concentrations that they tend to cause problems along the shoreline, especially as it pertains to dissolved oxygen levels. From the facts presented, this outcome is not expected. Levels of dissolved oxygen in the St. Johns River can vary in the natural condition as much as 2 to 3 mg daily. These variations are influenced by algal activity and are not uncommon in Florida waters. Dissolved oxygen is essential to aquatic life. Optimum levels of dissolved oxygen for the fish population of the river are in the neighborhood of 6 to 8 mg/L. DER has established a minimum DO standard of 5 mg/L for Class III waters such as Trout Creek, Palmo Cove and the St. Johns River. This standard is designed to achieve uniform compliance throughout water column at whatever time the measurement may be made. DER, by the employment of this rule, is attempting to deal with those instances in which, in view of the dissolved oxygen level, aquatic organisms are placed under greater stress. The lowest DO concentration expected is normally seen in the summer in July, August and September. DO concentrations in the water column are expected to be highest at the surface area and lowest near the bottom. Measurements near the bottom are significant in this instance because the discharge will occur approximately one foot off the bottom of the river. The Applicant took DO measurements of the area in question during the spring of 1984 over a period of three days. These measurements were taken at a time when a better quality of dissolved oxygen might be expected as contrasted with circumstances in the summer. With the amount of wind involved impressive levels of reaeration were also occurring. These measurements showed that in all stations DO levels were at least 5.0 mg/L at all depths. A study by Applicant's consultant Environmental Science Engineering related to a diurnal event for dissolved oxygen was taken approximately one kilometer downstream from the point of discharge in August 1985 and did not reveal any measurements below 5.0 mg/L. The river was choppy on that day and this would improve the quality of dissolved oxygen. Historical data by DER related to water quality at Picolata, which is south of the POD in the St. Johns River, reveals average DO levels of approximately 6 mg/L. Historical water quality data collected by the Florida Game and Freshwater Fish Commission near Green Cove Springs, which is several kilometers north of the point of discharge, indicated average DO levels in compliance with water quality standards. Diurnal data from near Green Cove Springs did not show any history of DO values below the state standards. There is other historical data, however, which indicates that DO concentrations in the general vicinity of the point of discharge do go below 5.0 mg/L. Game and Freshwater Fish Commission data indicate that the readings below 5.0 mg/L could occur as much as 10 percent of the time. This relates to the study done at Green Cove Springs. There does not appear to be any particular pattern to these events of low DO violations other than the expectation of their occurring in the summer months, occurring more frequently in the lower depths of the water column and in areas which are shallow with limited flow. The summer circumstance is one in which there is a possibility of very heavy rainfall followed by hot weather with overcast skies and no wind, and the DO values go down in that set of conditions. The DO values are, in addition to being lower near the bottom of the water column, likely to be lowest in the evening or early morning hours and persist in length of time from eight to ten hours. Some of the Florida Game and Freshwater Fish Commission data from Green Cove Springs depicted some DO concentrations as low as 1.8 mg/L at the bottom and 2.1 mg/L at the surface. The low readings that were taken at Green Cove Springs occurred in September 1979 after Hurricane David had created unusual conditions in the upper St. Johns River as to effects on DO. The same report indicated DO concentrations at eleven stations in the lower St. Johns River in July and September 1982 were in the range to 4.0 to 4.5 mg/L respectively. This particular data is not particularly valuable in view of the location of those stations. There are occasions when the DO concentration at the point of discharge could go below 5 mg/L and could be as low as 2 mg/L on the bottom, but this is not a routine occurrence and would not persist. The Petitioners' consultant Young had taken certain dissolved oxygen readings at the point of discharge in April 1985 and found compliance with the 5 mg/L standard. At other times he and the consultant white measured substandard dissolved oxygen concentrations at the point of discharge. On July 20, 1985, white collected water samples at the surface and at two feet above the bottom and determined that the readings were 4 mg at the surface and 3 mg near the bottom. On August 10, 1985, Young measured DO concentrations of 4 mg/L near the bottom. On August 30, 1985, Young measured DO values of 4 mg/L at the point of discharge. Young had also measured DO concentrations at Green Cove Springs on August 10, 1985, and discovered readings as low as .5 mg/L and ranging up to 3.8 mg/L. A downstream measurement away from the point of discharge in the main channel made on August 10, 1985, by Young showed a dissolved oxygen reading of 4 mg/L. In these August measurements Young had discovered a number of readings that were in compliance with the 5 mg/L requirement. Again on September 5, 1985, Young made a measurement of dissolved oxygen near the bottom of the water column at the point of discharge which was 5.3 mg/L. Young's measurements of dissolved oxygen at the surface and in the intermediate depth, typically were above 5 mg/L. Bottom readings taken by Young in the main channel of the river and to some extent in the embayment areas were extracted from the soft detrital materials, the place of intersection of the river bottom and the water column. DO levels in these anoxic materials would tend to give lower dissolved oxygen readings and, to the extent that this anoxic material remains in the test probe while taking measurements toward the surface, would have an influence on the readings, making them appear lower than would be the case if the anoxic sediments were not present in the test device. These effects were not so dramatic as to cause the rejection of the data collected by this witness. Some explanation for lower DO readings at the point of discharge can be attributable to the fact that the anoxic material associated with high benthic oxygen demand on the bottom reduces the dissolved oxygen in the water column. Although Rangia clams were present at the point of discharge and they are capable of living in an environment of low salinity and low DO, they are likewise able to live in higher ranges of DO and their presence cannot be regarded as meaning that the dissolved oxygen levels are consistently below 5 mg/L. Petitioners' consultant White opined that there would be a very frequent violation of DO standards at the point of discharge, approaching 25 percent of the time. Considering the facts on the subject of dissolved oxygen in that area, this opinion is rejected, as is the opinion that DO concentrations will go below DER standards most of the time in July, August, and September. Young believes that a more involved study of worst case conditions would reveal DO violations throughout the column in the center of the river. The data that was presented was ample to demonstrate that violations would not be that widespread. Nor is the opinion of the consultant Parks on the subject of DO violations, to the effect that they will occur on many occasions accepted. In the Palmo Cove area it is not unusual to see some DO readings below the 5 mg/L standards. The E.S.E. group found substandard DO conditions in Palmo Cove at sampling Station 1 in September and October 1984 and some instances in April and May 1985. DO concentrations were found in the range of .4 and .6 mg/L in August 15 and 30, 1984, respectively, with DO concentrations of 1.8 and 2.1 mg/L reported on October 4 and October 29, 1984, respectively. DO violations in four out of eight checking periods between April 25 and May 24, 1985, were shown in the Palmo Cove area. Measurements taken by the consultant white showed 3 mg/L at the surface and 2 mg/L at the bottom on July 28, 1985. The consultant Young also made a measurement of 3.2 mg/L of dissolved oxygen on August 10, 1985, in a mid-depth reading in the Palmo Cove area. On September 5, 1985, he found a DO reading of 4.0 mg/L. At those places along the eastern shoreline of the St. Johns River and the relative vicinity of Florence Cove, Jack Wright Island, Little Florence Cove and Colee Cove, low dissolved oxygen readings were found, that is below 5 mg/L. These coves can be expected to have substandard readings frequently during the summer period, based upon measurements taken by the consultant Young. In the conduct of the drogue study related to the Chlorox bottle, the consultant Young in tracking the path of those bottles, found a couple of locations in the path of the drogue which were in the range 2.8 to 4.2 mg/L and 2.0 to 4.6 mg/L. The influences of the discharge will not reduce DO in the embayments. The ambient conditions for BOD in the area where the discharge is contemplated is relatively low and there is no thermal or saline stratification even in the summer months. Nutrient concentrations in this part of the St. Johns River are as indicated within the Applicants Exhibit A-4(B)(3) and at present are at such levels as to promote a healthy fish community. There is algae production that can be sufficient in some areas within this section to cause algae blooms. Algae blooms are not found to be a routine occurrence. Algae blooms reflect higher levels of nitrogen and phosphorus. The consultants Young and White have seen algae blooms in the St. Johns River away from the general area of concern, both upstream and downstream. Should those algae blooms occur, they would promote significant rises and falls in DO concentrations. In Palmo Cove and the St. Johns River, supersaturated DO concentrations have been detected and they are indications of high rates of primary algal productivity. The circumstance of supersaturated conditions, related to dissolved oxygen, can be the by-product of an algal bloom. The concentrations of nitrogen range from an average of 1.42 to a maximum of 2.54 mg/L. Nitrogen concentrations of 1.4 mg to 1.5 mg/L are optimally advantageous for fish production. Significant increases above those levels would cause the decline of the fish population. Total phosphorus concentrations in the ambient waters are high. Concentrations in excess of 0.1 mg/L of total phosphorus are regarded as a indication of eutrophication and the average concentration here is measured as 0.3 mg/L with a maximum ambient concentration found at 0.52 milligrams per liter. There is significant algal growth in the inshore areas and an indication of some eutrophication in the grass beds. The dominant species of algae found in that vicinity are blue-green, which are seen as being nuisance species. The grass beds along the shoreline are basically healthy. On the other hand, some of the public witnesses identified the fact that grass beds and other vegetation have died with the advent of discharge from the Applicant's plant into Trout Creek. This was under a system in which little or no treatment was afforded the effluent. One other public witness indicated that his dock in the Florence Cove area had been covered with a slimy material and algae during the past two years. Significant grass beds are found along Jack Wright Island and in other areas along the eastern shoreline of the river. These grass beds are important as fish habitat to include nursery areas, areas for various juvenile species of fish and other organisms. Some of these grass beds are showing signs of environmental stress, and nutrient loading can contribute to that stress. Some of the grass beds are covered with higher amounts of algae, duckweed and periphyton than are desirable. The duckweed had floated into these areas from other locations and can be expected to move away. The presence of algae is an indication of nutrient loading. The presence of duckweed is not a product of nutrient loading in the sense of the production of the duckweed at the site where they were found along the shoreline. The area in question between Pacetti Point and Shands Bridge serves as a nursery in a sense of providing habitat for juvenile species of fish and other organisms. The grass beds along the shoreline provide habitat for feeding and breeding related to juvenile organisms, to include such species as bass and shrimp. Juvenile catfish are found within the deeper portions of the river as well as croaker and other marine species. There is a high number of juvenile blue crabs in this area of the river and this is a commercial resource. Shrimp are taken by recreational fisherman in the area of the North Shore Pacetti Point. Clam beds are also present near the point of discharge. Juvenile and adult manatee have been seen in the St. Johns River and in the area near Jack Wright Island. Manatee have also been observed in Trout Creek at a time before the operation of the Applicant's plant and at times following the cessation of operations in June 1985. During the course of the operation of the Applicant's plant, when raw effluent was discharged into Trout Creek, fish kills were observed. Those events had not been seen prior to the operation of the plant. Indications are that fish were killed in the creek due to the use by the Applicant of fly bait, which made its way into the water. Dispersion Modeling of Water Quality Impact In order to gain some impression of the influences caused by the dispersion of the pollutants within the effluent, the Applicant through its expert employed several modeling techniques. DER was made aware of this modeling as it developed. A far-field model was used to calculate what the long-term or steady state impacts of the treated effluent would be on the ambient water quality. In trying to identify the influence of the discharge, measurement of metals were taken based upon an assessment of long term increases. BOD, which breaks down and consumes oxygen over time, was examined in the sense of the long term effects as to DO deficits. In essence these projections were superimposed over the ambient condition to gain an impression of the adjusted ambient values, taking into account the influence of the discharge. The Applicant also ran a plume model which was designed to calculate spreading and dispersion of the treated effluent within the zone of initial dilution or mixing zone at the point of discharge. This model responds to the discharge configuration. Through the use of computer calculations, it was established that a five-point diffuser with port openings of 0.75 inches in diameter angled upward at ten degrees would result in an effluent dilution ratio of 28.5:1 within two meters of the point of discharge. The calculated impacts of the plume model were superimposed upon the adjusted ambient water quality conditions set forth in the far-field model in order to determine net impact upon the receiving waters within the mixing zone. A third model was used, referred to as the lateral diffusivity model. This model is designed to calculate the six-hour or short term water quality impacts of the treated effluent when it moves from the zone of initial dilution during flood and ebb tide conditions. By estimating dispersion rate, this model predicts what dilution would occur in the path of the effluent plume. These impacts were then superimposed upon the adjusted ambient water quality conditions to determine the total impact in the path of the plume. The modeling work by the Applicant's consultant is a reasonable depiction of the predicted impacts of the pollution on the ambient conditions. The calculations used in the far-field model assumed a freshwater flow of 2,000 CFS. This assumption in the far-field model satisfactorily addresses worst case flow conditions related to seven-day, 10-year low flow. The temperature utilized in depicting ambient water was 30 degrees centigrade when employed in the far-field and lateral diffusivity models. This corresponds to warm weather conditions, which are more profound in describing effects on water quality. The far-field and lateral diffusivity models assumed that the treated effluent discharged from the pipeline would have a BOD concentration of 665 mg/L. This is contrasted with the maximum concentration allowed by the draft permit, which is 510 mg/L, which is the expected amount of BOD. This tends to depict the impacts of the discharge more conservatively. The model assumes the BOD loading of 2,720 kg per week, equating to an average discharge concentration of 665 mg/L if the plant operates five days a week on an eighteen-hour day. The reaeration rate and NBOD and CBOD decay rates used in the far field and lateral diffusivity models are acceptable. Likewise, the longitudinal dispersion coefficient that was used in the far-field model is acceptable. The standard modeling methodology in this process calls for an assumption of a 1.33 growth rate of the plume in the lateral diffusivity model. The Applicant's consultant decided to use a lower constant diffusivity growth rate. As a consequence, less lateral spreading is depicted. With less lateral spreading, less dilution is shown, and the impacts predicted by the model are exaggerated. One of the parameters of the plume model has to do with river flow which causes some turbulence and also brings about dilution. In this instance the plume model calculations assume stagnant conditions which is a more conservative assessment. As the Petitioners have suggested, the modeling to explain the impacts of dispersion of the pollutants is not designed to give precise calculations of the DO deficit at each point in the river along the eastern shoreline. It is indeed an estimate. The estimate on this occasion is reasonable. Although DER performs mathematical analysis of dispersion of proposed discharge in some cases, it did not do so on this occasion. Nonetheless DER was satisfied with the present choice for modeling the dispersion characteristics of the discharge. Although the models utilized were not subject to exact calibration by measurement of the dispersion at the site, the information gained by the Applicant prior to the imposition of the modeling techniques was sufficient to develop the models and to give a theoretical verification of the expected impacts from the discharge. The Applicant's belief that the maximum DO deficit caused by the discharge will not exceed 0.1 mg/L is accepted. The dissolved oxygen level in the effluent at the point of discharge will be above 5 mg/L. The Applicant's choice of reaeration rates, CBOD decay rates, NBOD decay rates, discharge rate from the pipeline, hours of operation, average reversing current speed, net non- tidal flow, non-tidal velocity, time lag before NBOD decay, maximum tidal velocity, and other variables and assumptions within the models were acceptable choices. Although the possibility exists of an occasional 5 1/2 day operation in which 10 additional hours of operation are added, this would not be so significant as to set aside the predictions as to the pollutant dispersion. The Applicant's consultant who modeled the dispersion rates did not conduct dye studies to verify or calibrate the actual dispersion in the river. One of the dye studies indicated a lateral spreading rate which was less than that predicted by the model. Notwithstanding this revelation, the overall techniques used by the Applicant in predicting lateral spreading rate are sound and do not present a risk of a greater DO deficit than was predicted based upon incorrect assumptions as to lateral spreading rates. The Applicant's consultant's use of 2,000 CFS as the net non-tidal low flow was a more convincing estimate than the field data collected by the United States Geological Service, given the paucity of information about the flow conditions within the St. Johns River. The Applicant's choices in describing maximum tidal velocities and average velocity are accepted. The critique of the modeling efforts done by the Applicant that was made by Petitioners' consultant, Dr. Parks, in which he concludes that the DO deficit is considerably greater than 0.1 mg/L is not accepted. Comparison of Predicted Impacts of Discharge with Statutory and Regulatory Criteria Inside the Mixing Zone Applicant's assumptions about the increase in nutrient concentrations in the St. Johns caused by the discharge are accepted. This is based on the assumption of a nitrogen value of 52 mg/L which was achieved in bench scale testing of the effluent and which can be achieved in the full scale operation. As the effluent is discharged from the diffuser within the mixing zone, there will be some turbidity problems in that the bottom near the point of discharge. The soft silt there is easily resuspended. When the discharge is concluded, the material will settle back to the bottom. There will be further resuspension when the operation commences again and there is a discharge. The transport of these suspended materials is limited in that the water velocity associated with the discharge is quickly dissipated. This phenomenon will not cause adverse environmental impacts. The mixing zone does not include an area approved by the State of Florida, Department of Natural Resources for shellfish harvesting; it does not exceed the presumptive maximum size set forth in Rule 17-4.244, Florida Administrative Code. Nor does it include an existing drinking water supply intake or any other existing supply intake that would be significantly impaired by the proposed mixing zone. The water in this area is of sufficient depth that it will not support grass beds that are associated with a principal nursery area, such as pond weed, midgeon grass, manatee grass, turtle grass or eel grass which are used to support nursery activities. These grasses are normally found inshore. Although juvenile fish are found throughout this reach of the St. Johns River, and for that matter in the entire lower eighty miles of the St. Johns River, the mixing zone is not of such dimensions that it will preempt the health of juvenile fish. Most of the freshwater fish in this system use the littoral areas for reproduction. Marine and estuarine species do not reproduce in the St. Johns River. There is some reproduction that is occurring with some species, such as catfish. Given the size of the mixing zone, no significant adverse effects will occur with the established community of organisms in this portion of the river. The mixing zone will not otherwise impair designated uses of the St. Johns River. The treated effluent will not create a nuisance condition or violate any other DER standards that apply within the mixing zone. With the advent of the full scale facility, maximum, average and chronic toxicity criteria can be reasonably expected to be met at the point of discharge, within the mixing zone and at the boundary of the mixing zone. As described before, the effects of sediment transport upon discharge are localized. The proposal for a mixing zone takes into account Rule 17-4.244, Florida Administrative Code, in the sense of addressing present and future sources of pollutants and the combined effects with other pollutants or substances which may be present in the ambient waters. One of the concerns which DER has about wastewater is the effect which that pollutant has on organisms within the environment. To gain an impression of that influence, testing is required to establish whether the wastewater is acutely toxic. The testing is known as bioassay assessment. While this assessment is normally done after the grant of a construction permit, when confronted with uncertainty about the quality of the effluent, some testing is beneficial prior to the grant of a construction permit. This is especially true given DER's experiences in dealing with raw effluent of several of the scallop processors, to include Homer Smith, which showed that the raw effluent was acutely toxic. This acute toxicity testing is done by placing test organisms into aquaria containing the effluent and measuring survival of those species over time. Results are described in terms of a measurement of the concentration of the effluent at which 50 percent of the organisms are killed during a prescribed test period. In static testing the organisms are simply exposed to the effluent for the requisite period of time. By contrast, a static renewal test calls for the effluent to be replaced with another sample of the effluent at various intervals within the test period. Finally, a flow through bioassay test calls for a continuous stream of fresh effluent to be introduced in prescribed concentrations over the duration of the test. A bioassay assessment in the static condition was performed related to DAF pilot scale effluent that was collected on April 19, 1985. In this instance Daphnia magna were used as test organisms and demonstrated a survival rate of greater than 50 percent in a 100 percent concentration of effluent over a period of 96 hours in the setting of static and static renewal tests. That survival rate was also shown in lesser concentrations of effluent as well. The April 19, 1985, sample was also used in testing the response of Pimephales promelas. These test organisms did not survive either in the static or static renewal tests. While an hypothesis has been made that acute toxicity was experienced in this test organism attributable to build-ups of ammonia, which is greater with this type of organism than with the Daphnia, due to larger biomass which allows for a greater number of ammonia generating bacteria to be presented in the test aquaria and the fact that the Pimethales excrete more ammonia, these differences do not definitely explain why the Daphnia survived and the Pimephales did not. In the series of static renewal bioassays performed on the wastewater that was collected at the plant on April 29, 1985, and shipped to Lenox, Massachusetts, for bench scale treatment, the test organisms of both types failed to survive for 96 hours. It was discovered that during the course of the test period, levels of ammonia rose rapidly. Trace metals in the treated effluent are principally in the form of stable species, as opposed to free ions. These constituents standing alone are not likely to have caused the mortality in the test organisms. The effect of decomposition of the organic constituents in the waste stream is the most likely explanation of why the bioassays of pilot and bench scale treated effluent did not lead to a satisfactory result. Unionized ammonia, a by-product of organic decomposition, is found to be a principle player in the explanation of why the treated effluent was acutely toxic to the test organisms. The exact cause of toxicity has not been precisely identified. Given the complex nature of the effluent, other potentially toxic substances such as sulfides, amines, and other organic compounds could have contributed to the demise of the test organisms. Moreover, toxicity can increase with combinations of chemicals acting in a synergistic fashion, making their combined effects more devastating than the effect of any single substance. Having in mind the fact that ammonia is a major problem in the survival of test organisms subjected to a bioassay, the question becomes one of what may be done to remove ammonia. The production of ammonia in wastewater would depend upon the presence of bacteria. The proposed DAF system removes substantial numbers of bacteria, thereby limiting the possibility of ammonia build-up, if bacteria are not allowed to recolonize in some part of the system prior to discharge. As discussed before, reduction of bacterial activity can be achieved within the proposed treatment system. This is unlike the experience with the bench scale and pilot scale testing that was done on the effluent in which a substantial amount of time transpired before subjecting the test organisms to the effluent and in which a substantial amount of time transpired while the test organisms were being subjected to static and static renewal procedures with the same effluent. The time intervals contributed to the build- up of toxic levels of ammonia in the effluent. The system which is proposed in this instance can avoid the problem of time as it relates to the build-up of levels of ammonia. To further reduce the influence of retention of the waste product, flow through bioassay testing would be the most appropriate measurement of the survivability of the test organism in that it would be responding to real case conditions pertaining to the quality of effluent and its potential toxicity. Under these circumstances, it is reasonable to believe that in a flow through bioassay test of the full scale treatment system, the test organisms could survive. This determination is reached given the reduction in retention time compared to the bench and pilot scale testing, which reduces ammonia, with further ability to reduce ammonia by frequent removal of residual materials from the sludge drying bed and sump pit and taking into account basic improvements in treatment efficiency associated with the full scale system. In addition, the pH of the effluent can be regulated to avoid toxicity in the ammonia which is associated with inappropriate balance within the pH. While a 96-hour LC-50 cannot be calculated with the results of bench scale and pilot scale testing, a reasonable possibility exists for the establishment of that measurement with the advent of a flow through bioassay. There is sufficient similarity between the effluent in the pilot and bench scale testing and the expected effluent in the full-size system for the bioassay testing that was done in those limited systems to give a meaningful indication of the probability that the Applicant can pass a flow through bioassay. Applicant can be reasonably expected to produce an effluent in the mixing zone which will not exceed the 96 hour LC-50 for acute toxicity. As with the circumstance of ammonia, pH can be controlled within the system to address the implications of changes in pH as it pertains to other pollutants in the wastewater. Ammonia production can be influenced by the amount of alkalinity in the effluent and the receiving waters. Alkalinity has not been measured thus far. Alkalinity could be established for the effluent and receiving waters and dealt with if it was suspected as being an explanation of problems with the build up of ammonia which might exceed DER standards. The discharge from the Applicant's plant will not cause long-term problems with low DO, high nutrients, algal imbalances, and chronic toxicity. Outside the Mixing Zone Those constituents within the waste stream, to include those for which a mixing zone was sought, will comply with applicable water quality standards at the boundary of the mixing zone. The dissolved oxygen deficit at its maximum can be expected to be in the neighborhood of 0.1 mg/L and will be exerted somewhere in the range between 1 and 2.5 km downstream of the point of discharge across the width of the plume in worst case conditions. This deficit is not of a dimension which is easily detectable. The implications of that deficit are difficult to perceive in terms of tangible environmental consequences. While a deficit in the range of 0.1 mg/L has some relevance in the DER permitting decision, that deficit as it is dispersed is not expected to cause or contribute to violations of water quality standards in the main channel of the river or in the inshore and embayment areas. While it is true that there are periodic fluctuations of dissolved oxygen below 5 mg/L, DER, as a matter of present policy and professional judgment believes that in this system which evidences characteristics of a clean well-flushed, unstratified water body occasional readings of low DO are not regarded as an indication of violation of water quality standards. This speaks to the main channel area of the river where the only quantifiable influence is expected. The facts presented in this case support the soundness of this policy choice. Petitioners presented the testimony of former officials within DER, namely Parks and Young, who stated that dissolved oxygen standards of 5 mg/L are applied at all times and at all places. They felt that the DER policy was to the effect that permits would not be granted for discharge in any circumstance where the DO concentrations are substandard in the ambient waters, regardless of the amount of decrease or deficit that would be promoted. Parks spoke of the availability of site specific alternative criteria, variances, exceptions or exemptions from the terms of the water quality rule. Having considered these remarks, the present DER policy of allowing the permit to be granted in the instance where occasional violations of ambient water quality standards related to 5 mg/L occur, in the face of the small deficit which is involved in this case, is the better choice. Further, it is a choice that is not so inconsistent with prior practices as to be arbitrary in nature. Finally, DER's position that it would be unadvisable to require a request for site specific alternative criteria, variances, exceptions or exemptions in circumstances such as this case is accepted, when taking into account the problems which would be presented to the agency in administering the permit program, should each Applicant who is confronted with occasional violations below standards for dissolved oxygen have to seek extraordinary relief. While the facts do identify that some pollutants can reach the embayment areas on the eastern shore, the facts do not depict a circumstance in which the amount and quality of that effluent will be such that it will cause or contribute to dissolved oxygen violations in those areas. The water quality in the embayment areas is lower than that in the main area of the river due to inadequate flushing. The areas inshore do not interact with the main channel in a way that would take advantage of the faster moving currents found in the main channel as this interaction might promote a better quality of water. In view of the situation in the embayment areas, the Applicant, on advice of his consultants, moved the proposed location of the discharge into the main channel away from the areas which were under greater stress in terms of dissolved oxygen values and in doing so avoided damage to these areas. The current velocities in the area east of the main channel are weak. There is a substantial distance from the point of discharge to the inshore areas. As the effluent moves toward the inshore or nearshore areas it will become so diluted it will not have an adverse influence on dissolved oxygen. Not only the distances involved, but also the fact that water flowing near the surface is well aerated contributes to the dilution of the effluent as it approaches the shore. Although it has been shown that some stress in the grasses along the eastern shoreline has occurred and the existence of blue-green algae has been shown, together with indications of undesirable algal production, the nutrients which are part of the effluent at the point of discharge are not expected to cause an imbalance in the natural populations of flora and fauna or create nuisance conditions or violations of transparency standards. The nitrogen increase could cause an increase in algal production in the order of one percent, which is inconsequential. The treated effluent will not adversely effect biological integrity of the St. Johns River. The benthic microinvertebrate community in this part of the river is fairly low density due to the fluctuations in salinity levels and predation by fish and blue crabs and given the nature of this substrate which is unstable with low levels of dissolved oxygen. The organisms that are predominant have a tolerance to siltation and fluctuations in dissolved oxygen. The treated effluent will not adversely effect the microinvertebrate community. Petitioners point out the fact that when DO concentrations decrease below optimum levels, fish and other organisms suffer. The fish reduce their movement, feeding and reproduction and they are less disease resistant. They are placed in a position of having to leave the area or risk death if the impacts of the decrease in dissolved oxygen are severe. The influence of the effluent at the point of discharge in this project is not expected to have significant impact on fish and other organisms within these topics of concern expressed in the paragraph. Even though the dissolved oxygen deficit extends in amounts below 0.1 mg/L as far as 2.1 km upstream and 4.5 km downstream and within a wide breadth of the center portion of the river, those deficits will not be significant to the water quality. The BOD associated with the discharge, allowing for mixing will not depress dissolved oxygen levels below DER standards of 5 mg/L. The combination of BOD and nutrient discharge will not cause an imbalance of algal production in the river, nor will it contribute to the dominance of nuisance algal species. The BOD nutrient loading associated with the discharge into the St. Johns will not promote significant ecological impacts on the St. Johns River, to include the possibility of more frequent and severe algae blooms, increase in benthic oxygen demand, risk of increase eutrophication, destruction of grass beds or decline in the fishery. With the advent of discharge in the St. Johns DO fluctuations in the river will not be greater nor will there be an occurrence of a swing from substandard dissolved oxygen levels to supersaturated dissolved oxygen. While the discharge from the Applicant's plant contains pollutants such as cadmium, zinc, arsenic, copper and organic decomposition products, the treatment provided the wastewater is expected to overcome any acute toxicity associated with these materials individually or in combination. Chronic toxicity is not expected related to these materials. The effects of these materials are not expected to cause physiological and behavioral responses which are abnormal in organisms such as reduced locomotion and reproduction or increase susceptibility to diseases to include ulceration and increased mortality. Treatment contemplated and provision of a mixing zone will allow compliance with the standards related to cadmium. Reference has been made to a development known as St. Johns Harbor which is in the vicinity of the proposed discharge and can be expected to promote some pollution in Palmo Cove and the St. Johns River. Although St. Johns Harbor development is proceeding through stages of permit review, it does not appear that it has reached a place in which exact information about its implications as a pollution source can be set out. In discussing the St. Johns Harbor Development, Petitioners emphasized that this eventuality and other matters which deal with cumulative impact have not been satisfactorily addressed. There is no indication than any other substantial development or activity other that St. Johns Harbor is contemplated in this area associated with the permit review at hand. St. Johns Harbor eventually hopes to develop 3000 residential units. It has received the approval of the Northeast Florida Regional Planning Council for the initial phase of development. It has been reviewed by the Florida Fresh Water Game and Fish Commission. The developers are proceeding with the project to include the sale of lots. Nonetheless, that development has not reached the phase where its implications would form the basis of a denial of this project based upon the theory of cumulative impact. While Petitioners contend that stormwater runoff from the St. Johns Harbor project will be a problem, assuming an inadequacy in the design which that developer employs to deal with that matter, this eventuality is not expected based on a review on the facts presented. Reference is made to the Ulcer Disease Syndrome which fish in the St. Johns have suffered from. The principal area in which this event has occurred is north of the area expected to be influenced by this discharge. Nonetheless, diseased fish have been found in Palmo Cove. This Ulcer Disease Syndrome is caused by heavy metals and hydrocarbons, and these materials act in league. The advent of additional heavy metals and other pollutants, such as those being discharged from the Applicant's plant could cause further deterioration in the condition of fish suffering from Ulcer Disease Syndrome. Having considered the facts, this outcome is not expected. Ambient levels of 18 other pertinent pollution constituents in the vicinity of the point of discharge were ascertained by the Applicant's consultants on the basis of field observations and historical United States Geological Survey and Florida Game and Fresh Water Fish Commission data. This formed a basis of an assessment of average and worst case values. This information indicates compliance with those parameters for purposes of water quality standards at the point of discharge. Implementation of Construction Permit Permit Conditions Applicant's Exhibit A-10 is a copy of the DER intent to issue the construction permit. It sets forth seventeen specific permit conditions, and these conditions should be imposed in the permit. The following are additional conditions that should be set forth in the construction permit: The operation and maintenance manual required by original Condition 10 shall provide that the DAF treatment system be cleaned regularly with a mild chlorine solution and that the wastewater from this maintenance be placed in a vehicle and carried off the premises for disposal at an appropriate location. This wastewater from the cleanup shall not be discharged from the plant into state waters. The operation and maintenance manual shall provide that a dosage level of chlorine to clean the pipeline that will result in comp- liance with all water quality standards at the end of the pipeline be added to a fraction of fresh water used to flush the system at the cessation of discharges each day. DER must approve this dosage amount before it becomes part of the operation and maintenance manual. The operation and maintenance manual shall set forth a regular schedule for pumping the accumulated sludge or solid materials from the sump pit. The operation and maintenance manual shall provide that as much as 50 gallons per minute of fresh tapwater may be added to recycled wastewater for pressurization. Any discharge created with this addition may not exceed 250 gallons per minute. Any discharge created above 200 gallons per minute shall be consti- tuted only of tap water. Two machine scallop processing operations at the plant will be limited to an average of 18 hours per day and no more than 90 hours in a week. Monitoring in Trout Creek shall continue as specified in paragraph 17(E) of the Consent Order as long as discharges into Trout Creek continue. On each occasion when the DAF treatment system is in operation, the Applicant shall have a fully trained operator on site. The terms of the construction permit shall expire on December 31, 1986. The constructed pipeline shall be leak tested once a month from June to September and every other month during other months of the year. If a leak in the pipeline is detected it shall be repaired within 20 days and retested for leaks within 15 days thereafter. The carrying out of any leak testing and repairs shall hereunder shall be certified by a professional engineer. Pre-pipeline Operations Petitioners have pointed out the fact that when two or more pollutants are present, as in the instance of the effluent discharged by the Applicant's plant, those pollutants tend to act in a synergistio manner. That can exacerbate the circumstance where you find low dissolved oxygen. This is particularly a matter of concern when discussing Trout Creek. This is unlike the impacts of the discharge into the St. Johns River which are not expected to exceed standards or promote adverse effects. The implications of operation within Trout Creek to allow necessary permit review by DER and the State of Florida, Department of Natural Resources can be overcome once the discharge is withdrawn from Trout Creek and may be addressed by DER more immediately if the dissolved air flotation unit, after a reasonable period of adjustment, does not perform in the fashion that it appears to be capable of. In the instance of discharge into Trout Creek, the material discharged tends to remain in that area for a relatively long period in that the creek is small and has very little flow and poor flushing characteristics. DO levels will be depressed, the presence of a deficit in dissolved oxygen caused by the discharge from the DAF unit would increase the probability of fish kills when contrasted with a circumstance where there is no further deficit of dissolved oxygen. Given the explanation of why a fish kill occurred based upon the past use of fly bait by the Applicant and the fact that there is no indication of fly bait in the present plans, a fish kill in Trout Creek in the time of interim discharged does not seem probable. With the advent of discharge into Trout Creek, the possibility is enhanced for algae blooms and increased eutrophication. There would also be some accumulation of toxic substances. Additionally, there would be some influence on juvenile fish which are more sensitive to pollutants and the possibility exists that it could reach levels that are lethal to bass larvae and juvenile sports fish. The creek would lose some of its viability as a nursery and some fish would leave the creek. These events are not irreversible and can be reasonably remedied with the cessation of discharge into the creek. Moreover, as in the instance with the problem with fish kills, if some set of circumstances attributable to the discharge were to occur in such dimensions as to cause long term impacts in Trout Creek, DER could take action against the construction permit. Dissolved oxygen in Trout Creek can be below the 5 mg/L standard. Data of the E.S.E. group showed that at Highway 13 bridge, approximately fifty yards from the plant in December 1984 and January 1985, values were as low as 0.1 and 0.2 mg/L, and readings could be frequently below 2 mg/L at Highway 13. In April through June 1985, periodic surface dissolved oxygen concentrations were in the range of 3 mg/L and as low as 2.4 mg/L. DO concentrations generally found at the bottom of Trout Creek could be as little or lower than 1 mg/L at times. In July 24, 1985, at the time when the plant had not been operating for approximately a month, the DO concentrations were 2.9 mg/L at mid-depth and 0.8 mg at the bottom. Within Trout Creek in the area of the Pacetti marina, Consultant White measured DO concentrations in the range 1-3 mg/L. On August 10, 1985, six weeks after operations had stopped at the Smith facility, DO concentrations were found to be 3 mg at the surface, less at mid-depth and 0 near the bottom. Computer modeling was not done to ascertain the impacts of a discharge directly into Trout Creek from the DAF unit. The modeling done by the Petitioner's consultant, Parks, using some of the concepts considered in the Applicant's modeling for the St. Johns River is inapplicable to the circumstances in Trout Creek. Trout Creek has also served as a nursing ground for reproduction and habitat for young fish. During the course of the operations by the Applicant in the discharge of essentially untreated effluent, the beds of bass and sun fish have not been seen within the creek. Water quality improves with the DAF unit and sediment loading by heavy metals decreases. Trout Creek is a stressed system at present. It has low levels of dissolved oxygen, high nutrient concentrations and the presence of heavy metals in undesirable amounts. The low numbers of pytoplankton species give some indication of a highly stressed ecosystem. The present officials of DER, Palmer, Owen and Fox, expressed their concerns about dissolved oxygen in those instances where there would be a decrease in ambient DO concentrations. This has particular importance in discussing the problems associated with the discharge into Trout Creek, as opposed to the point of discharge contemplated in the St. Johns River, which risk is minimized given the characteristics of that area and the higher readings of ambient dissolved oxygen in that water, as contrasted with low readings within Trout Creek. A literal interpretation of the position of the agency officials would lead to the conclusion suggested by the Petitioners that no discharge should be allowed into Trout Creek, even on an interim basis. However, such a position would be inherently unfair considering the fact that some discharge would occur into the creek before the installation of the pipeline, whether based upon simultaneous permit review by DER and the State of Florida, Department of Natural Resources in the easement case or sequential review as is contemplated in this instance. Admittedly, the amount of time involved in the discharge into Trout Creek increases in view of the severance of the easement case from the present proceedings. This circumstance occurred in view of the desire on the part of the DNR to see the actual treatment efficiencies involved with the dissolved air flotation unit as opposed to the theoretical possibilities of that equipment. In the present situation, it would be a reasonable policy choice for DER to allow an interim discharge into Trout Creek pending the opportunity for DNR to monitor the quality of the effluent produced by the DAF unit and make a decision about the easement, thus allowing installation of the pipeline if the easement is granted. This arrangement contemplates that DER should closely monitor the quality of the effluent produced by the DAF unit, to make certain, after the Applicant has been given the opportunity to make necessary adjustments to that unit, that the Applicant is not allowed to continue to discharge into Trout Creek following this period of adjustment, when it is shown that the Applicant's equipment is not performing as expected. In any event, the discharge of effluent into Trout Creek will continue over a limited period of time and the system can be expected to quickly return to its healthier state after the removal of the discharge from Trout Creek. This has occurred in the past when the operations of the plant ceased and occurred at a time when the wastewater was of a more damaging quality than contemplated by that associated with the DAF unit. In summary, it would be a reasonable policy choice to allow the interim discharge into Trout Creek on this occasion. Dredge and Fill Permit Characteristics of Pipeline Corridor The pipeline corridor encompasses portions of Trout Creek, Palmo Cove and the St. Johns River. The bottom sediments where the pipeline is to be installed are constituted of soft, and sometimes extremely soft, flocculent silt. Although these sediments are easily resuspended, dispersement of these sediments will only occur while the pipeline is being installed. In placing the pipeline, it is the intention of the Applicant to simply allow the pipe to sink into the sediment. The soft substrate is several feet deep in some places within the proposed corridor. Nonetheless, the pipe is expected to stabilize as it sinks into the material. There are places within the corridor where a crusty material may be found on the surface of or just beneath the substrate. These are locations where jetting or mechanical excavation may be necessary. Jetting may also be necessary along the approximately 155 foot stretch of the corridor that crosses the State of Florida, Department of Transportation right-of-way. This requirement would occur in view of the fact that the Department of Transportation mandates that the pipeline be at a minimum of 30 inches below the creek bottom. In those instances where jetting or other mechanical excavation might be utilized, silt screens would be used to control the short term turbidity. In the areas within the pipeline corridor where tree trunks and branches have been found, these obstructions can be removed without incident. Taking into account the nature of the substrate, at the location where the diffuser will be placed at the end of the pipeline, special attention will be given to that installation to avoid having the diffuser settle into the soft silty material. Given the fact that the silty material is several feet deep and the related fact that the Applicant has not done specific testing of the depth, density and compressibility of this silty material, careful attention should be given to anchoring the diffuser and making certain that the exhaust ports within that device are correctly positioned. The need for this close attention is borne out by the fact that a test pipe which was placed in the silty material settled approximately two and a half feet within several weeks. The matter of the security of the diffuser is also critical, given the fact that the diffuser will be located within one foot of the bottom. Through proper installation, the Applicant can avoid having the diffuser settle into the silty material over time. The installation techniques satisfactorily address the potential problems. Projected Impacts (1) Environmental The icthyological and macroinvertebrate communities within the pipeline corridor have been examined by the Applicant in the person of his consultants. It was found that there are a variety of freshwater fishes within Trout Creek, such as large-mouth bass and sun fish, and a moderate density of macroinvertebrates. The St. Johns River proper is dominated by estuarine and marine aquatic organisms. Infaunal macroinvertebrate densities in the area of the pipeline corridor in the St. Johns River are not high. In placing the pipeline, the effects on aquatic and benthic communities within the corridor or upon water quality do not pose a threat to those communities or to water quality. During the installation of the pipeline, some disturbance of the benthic organisms can be expected; however, those organisms will be able to recolonize quickly. The mere presence of the pipeline is not expected to cause long-term impacts on biological resources or water quality. (b) Navigation In the area of the intended placement of the pipeline related to Trout Creek, boating clubs utilize that vicinity for purposes of anchorage. Those clubs have as many as twenty to thirty boats whose size varies from twenty to fifty-five feet in length. Some of those boats carry anchors which can weigh forty-five pounds or more. Typically, in anchoring one of these craft, the anchor rope is tied down and the engines reversed to set the anchor. Although testimony was given to the effect that the anchors being set might puncture the pipeline, given the explanation about the placement of the pipeline and the nature of the pipe itself, problems with puncturing the pipeline as it might interfere with navigation or environmental concerns such as turbidity plumes due to a puncture of the pipeline are not expected. Nor are the activities associated with retrieval of the anchors via the use of electric winches or hoists seen to be a problem in the sense of snagging the pipeline and rupturing the pipeline when the anchors are brought aboard the vessels. In summary, the pipeline will not be an interference to navigation in the sense of boat anchorage or other aspects of navigation associated with boating. Moreover, the Applicant is willing to indicate the location of the pipeline on navigational charts to assist boaters in avoiding potential problems with anchorage. This is a desirable arrangement and should be done. Comparison of Projected Impacts with Statutory and Regulatory Criteria The dredge and fill activities associated with the pipeline are not expected to cause long-term or short-term adverse impact on biological resources or water quality, or are they expected to interfere with the conservation of natural resources or marine productivity or interfere with navigation to such an extent to be contrary to public interest. The placement of the pipeline will not promote unacceptable interference with fish and other natural resources or destroy clam beds or grass flats, such as would be contrary to the public interest. Permit Conditions Appropriate permit conditions are as follows: Installation of the pipeline shall be conducted within Trout Creek only during weekdays. Pipeline installation activities within Trout Creek shall not block navigation. The pipeline shall be constructed within 60 days following the receipt of all necessary approval, to include the grant of an easement by the State of Florida, Department of Natural Resources for the placement of the pipeline over submerged sovereignty lands. All conditions set forth in the DER draft permit. See Applicant's Exhibit A-57.
The Issue Whether Petitioner has documented that he has the requisite experience to qualify to take the Class A Domestic Drinking Water Plant Operator certification examination.
Findings Of Fact Petitioner, Manuel Rodriguez, Jr., applied for and received certification from DER as a Florida Class C Domestic Drinking Water Plant Operator in 1985. The requirements for certification as a Class C Operator included three years of actual or recognized constructive experience with at least one year of actual experience in the operation, supervision, and maintenance of a drinking water plant. In the processing of this application, DER accepted Mr. Rodriguez's claimed 12.96 months of actual experience without requiring documentation of that experience. Mr. Rodriguez applied for and received certification from DER as a Class B Domestic Drinking Water Plant Operator in 1988. The requirements for certification as a Class B Operator included eight years of actual or recognized constructive experience with at least two years of actual experience in the operation, supervision, and maintenance of a drinking water plant. In the processing of this application, DER accepted Mr. Rodriguez's claimed 38.76 months of actual experience without requiring documentation of that experience. The requirements for certification as a Domestic Drinking Water Plant Operator at the A, B, and C levels of certification have not changed since 1985. DER should have required Mr. Rodriguez to document his actual experience when he applied for his C level of certification and for his B level of certification, but it did not do so. On or about May 5, 1989, Mr. Rodriguez, submitted to DER an "Application for Certification for Operators of Domestic Wastewater or Drinking Water Plants" on a DER form found at Rule 17-1.210(1), Florida Administrative Code. This application was for certification as a drinking water operator at certification level "A". The application form for certification at the "B" and "C" levels were on the same form used for the "A" level. The criteria for certification has not changed since 1982. Such an application for certification must be reviewed and accepted by DER before the applicant is permitted to sit for the requisite examination. The application submitted by Mr. Rodriguez was rejected by DER because the application failed to document that Mr. Rodriguez met the actual experience requirements for certification at the "A" level. In order to qualify to take the Class A level certification examination, an applicant must document 12 years (144 months) of total experience. Of this, 4 years (48 months) must be actual experience. DER considers 2,080 hours of experience as being equal to one year of experience. DER's application form (which has been adopted as a rule) requires an applicant to document his experience by: (a) listing the name and address of each public drinking water system at which the applicant has performed work that qualifies for actual experience credit, (b) listing the class designation of that water system, and (c) detailing the number of hours the applicant has worked at that system. On his application for his Class A Certification, Mr. Rodriguez claimed 49.85 months of actual experience for his employment with Atlantic Salt & Water Treatment, a company Mr. Rodriguez owns and operates. This company is not a water treatment plant, but provides services to residential customers and to certain public drinking water systems. The application provided no documentation as to the public drinking water systems at which Mr. Rodriguez claimed to have performed services. Mr. Rodriguez also claimed actual experience based on information on file with DER in past applications. Mr. Rodriguez was notified that his application was rejected because of his failure to document his actual experience. The Notice of Final Order of Denial, dated May 31, 1989, based the rejection of the application on the following: You have not accumulated the 4 years of satisfactory full-time on-site employment in the operation of a treatment plant, as required by Section 17-16.03, F.A.C. Your application indicates that you have only 11 years, 0 months of operational experience on the date of the application. The Notice of Final Order of Denial, dated May 31, 1989, erroneously reflected that Mr. Rodriguez had been credited with 11 years, 0 months of operational experience. This erroneous statement was caused by a computer error. Mr. Rodriguez was aware of this error and was aware that DER had credited him with having no actual experience because his application failed to document that experience. Following the rejection of his application, Mr. Rodriguez filed an amendment to his application which provided additional information regarding his work experience. This information, submitted in late June 1989, claimed 76 months of actual experience as follows: 39 months between March 1985 and June 1989 while employed as the owner and operator of Atlantic Salt (the full name of Petitioner's company was not spelled out on the amendment). This claimed experience is based on services rendered to Jones Fish Camp (twice a week) and to South Dade Storage and Industrial Park (once a week). 14 months between October 83 and December 84 while employed by Home Refinement. This claimed experience is based on services to South Dade Shopping Center (twice a week), Commercial Carriers (once a week), Dennys Restaurants Miami Beach (once a week), Dennys S. Dixie Highway (once a month), Bank of Homestead (twice a week), Tivoli Shopping Plaza (twice a week), Florida Power & Light Princeton Complex (twice a week), Florida Rock & Fill (twice a week), Florida Transport (twice a week), The Dialysis Center Homestead (once a month), and Botanical Garden (once a month). 12 months while employed by Culligan Water between October 1978 and October 1979. This claimed experience is based on services to Jackson Memorial Hospital (twice a week), Mercy Hospital (twice a week), Coral Reef Hospital (twice a week), Baptist Hospital of Miami (once a month), Howard Johnson Hotel Downtown (once a month), Americana Hotel Miami Beach (twice a month), Kings Bay Club (once a month), and Standard Concrete Plant (twice a month). 7 months while employed by Enviropact, Inc., between March 1977 and October 1978 (sic). This claimed experience is based on services to Quality Inn S. Dixie Highway (once a week). 4 months while employed by Florida Water Treatment between January 1977 and March 1977 (sic). This claimed experience is based on services to Hialeah Garden School for the Handicapped (once a week). The application, as amended, did not contain the required documentation of actual experience. There was no listing of the address of each respective water system, the class designation for each system, or the number of hours Mr. Rodriguez claimed to have worked at each water system. DER maintains a computer list which contains a complete inventory listing of all public drinking water systems recognized as such be DER, including inactive systems. DER checked the establishments for which Mr. Rodriguez claimed experience against its computer records to determine which of those establishments are DER approved public drinking water systems. Although such a computer check is not authorized by rule, this type check is routinely performed by DER and the computer records are verified for accuracy and for completeness. Mr. Rodriguez correctly contends that inclusion on the DER computer inventory should not determine whether an entity is a public drinking water system because that determination should be made by application of the pertinent DER rules. However, in the absence of documentation to the contrary, this computer check provides a reasonable means of determining whether an entity is a public drinking water system. On July 7, 1989, DER notified Mr. Rodriguez that the amendment was insufficient in a letter that provided, in part, as follows: The Department carefully reviewed your amend- ment to your application. Of the establish- ments you listed only Jones Fish Camp and Botanical Garden (Morey's Garden Center) are public drinking water systems. We estimated that you have spent approximately 200 hours over four years at these businesses. This is not sufficient to meet the criteria for an "A" level water treatment license. DER determined that at most Mr. Rodriguez has documented 200 hours of actual experience for work at Jones Fish Camp and the Botanical Garden. (It was determined after the letter of July 7, 1989, that no credit should have been given for the Botanical Garden because the entity to which Mr. Rodriguez referred was not the same Botanical Garden that appeared on the computer inventory.) DER properly awarded no actual experience credit to Mr. Rodriguez for services he rendered to any other entity he listed in his amended application because none of the other entities were on DER's computer inventory of DER approved public drinking water systems or otherwise documented by Mr. Rodriguez to have been public drinking water systems as defined by DER. Mr. Rodriguez has not provided an accurate or detailed statement as to the number of hours he has spent during the course of his employment in the operation of those entities he asserts should be considered to be public drinking water system. Mr. Rodriguez's inability to give details about the services he has provided has been impaired because his former employers are now his competitors and they refused to cooperate with him. However, there was no evidence that Mr. Rodriguez attempted to subpoena any of the records from these former employers. Mr. Rodriguez has received appropriate constructive experience credit for his education and specialized training. He has successfully completed all of the required course work for the Class A water treatment plant operator certification, and it was only his inability to document his actual experience that prevented his sitting for the Class A examination. Each level of certification is independent of each other, and a lower level certification is not necessary in order to receive a higher level. DER determined that the credit for actual experience given to Mr. Rodriguez based on his application for Class C certification and his application for Class B certification should not have been given because he did not document that experience, and did not credit him with the experience for the Class A certification to the extent he was unable to document such experience. Mr. Rodriguez failed to document that he has the requisite experience to sit for the Class A examination. While Mr. Rodriguez may in fact have such experience with public water systems, he has not documented that experience either in his application or at the formal hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the Department of Environmental Regulation determination that Petitioner, Manual Rodriguez, Jr., has failed to document that he has the actual experience required for Class A Domestic Drinking Water Plant Operator, and which upholds the rejection of his application to sit for the Class A Domestic Drinking Water Plant Operator examination. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of February, 1991. CLAUDE B. ARRINGTON 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 13th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4052 The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-8, and 10-15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 9 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Calvin Fox, Esquire Elena Tauler, Esquire TAULER & FOX, P.A. 3477 S.W. Third Avenue Miami, Florida 33145 Cynthia K. Christen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether, and what, reasonable mitigative conditions are necessary to protect the interest of the public and the environment, prior to issuing Petitioner's default permit.
Findings Of Fact Application and Default Petitioner's application is to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing 650 foot-long man-made canal of the same width and depth, normal (perpendicular) to old Central and South Florida Flood Control (now SFWMD) Rim Canal (the L-48 Borrow Canal), which is along the northwest shore of Lake Okeechobee. Petitioner's initial, incomplete application filed in DEP's Port St. Lucie office on August 31, 2000, included: the proposed project's location by County, section, township, and range; its legal description; a sketch of its general location and surrounding landmarks; a SFWMD letter verifying conformity with the requirements of a "No Notice General Permit for Activities in Uplands" of a drawing for a proposed pond expansion (to a size less than half an acre), "which will provide borrow material necessary for a house pad and access drive"; a description of water control Structure 127, together with its purpose, operation, and flood discharge characteristics, which were said to describe water levels in Buckhead Ridge, the name of the subdivision where the project was proposed; two virtually identical copies of a boundary survey for Petitioner's property (one with legal description circled) showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, at a scale of one inch equals 200 feet; two more virtually identical copies of the boundary survey at the same scale showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, and the proposed canal extension and house locations; and a copy of a 1996 aerial photograph of Petitioner's property and existing canal, and vicinity. The application did not describe a proposed method or any other details of construction, include any water quality information, or include a water quality monitoring plan. On September 15, 2000, Petitioner filed an additional page of the application form with DEP's Punta Gorda office. The page added the information: "Digging to be done with trac-hoe." No other specifics of the proposed construction method were included. What happened after the filing of the application is described in Tuten I and Tuten II, which are the law of the case. However, those opinions do not explain the delay between Tuten I and the issuance of DEP's proposed ERP with conditions approximately two years later. The evidence presented at the final hearing explained only that counsel of record for DEP promptly asked district staff to draft a proposed default ERP with conditions that "would probably track the RAI that had been sent out prior to the default." DEP's district staff promptly complied and forwarded the draft to DEP's Office of General Counsel in Tallahassee, which did not provide any legal advice as to the draft ERP for almost two years. There was no further explanation for the delay. As reflected in Tuten II and in the Preliminary Statement, it was DEP's position that the proper procedure to follow after its default was to issue a proposed ERP with conditions and that it would be Petitioner's burden to request an administrative hearing to contest any conditions and to prove Petitioner's entitlement to a default ERP with conditions other than those in DEP's proposed ERP. DEP's Proposed General Conditions The conditions DEP wants attached to Petitioner's default permit include general conditions taken from SFWMD's Rule 40E-4.381, which are appropriate, as indicated in the Preliminary Statement and Conclusions of Law, and as conceded by Petitioner's expert. While the Rule 40E-4.381 general conditions are appropriate, Petitioner takes the position (and his expert testified) that some of the general permit conditions contained in Rule 62-4.160, as well as Rule 62-4.070(7) (providing that "issuance of a permit does not relieve any person from complying with the requirements of Chapter 403, F.S., or Department rules"), are more appropriate general conditions to attach to Petitioner's default ERP, even if technically inapplicable, because the Chapter 62 Rules govern the operation of a permitted project (whereas the former govern the construction of a permitted project) and are "more protective of the environment." Actually, all of the rules contain general conditions that govern both construction and operation phases of an ERP, and all are "protective of the environment." There is no reason to add general conditions taken from Rules 62-4.160 and 62-4.070(7) to the applicable general conditions contained in Rule 40E-4.381. DEP's Proposed Specific Conditions (i) In General The conditions DEP wants attached to Petitioner's default permit also include specific conditions which essentially require that Petitioner provide the information in the RAI sent in December 2000, together with additional specific conditions thought necessary to protect the environment in light of the lack of detail in the application without the answers to the RAI. Some DEP's proposed specific conditions are designed to ascertain whether the application would provide reasonable assurance that permitting criteria would be met. (They make the requested information subject to DEP "approval" based on whether reasonable assurance is provided.) In general, those specific conditions no longer are appropriate since DEP is required to issue a default permit. (Looked at another way, inclusion of those specific conditions effectively would un-do the default, in direct contradiction of the court's opinion Tuten I and Tuten II.) See Conclusion of Law 52, infra. On the other hand, some of the RAI information was designed to ascertain the proposed method and other details of construction. Pending the "answers" to those "RAI conditions," DEP also wants broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. Petitioner opposes DEP's proposed broad specific conditions. He takes the position that it was incumbent on DEP in this proceeding to use discovery procedures to ascertain Petitioner's intended method of construction and tailor specific conditions to the method of construction revealed through discovery. At the same time, Petitioner opposes DEP's proposed specific conditions requiring RAI-type information, including the details of his proposed construction method. Notwithstanding the positions Petitioner has taken in this case, his expert testified that Petitioner intends to use a steel wall inserted between the water and upland at the end of the existing canal, phased excavation from the upland side, and removal of the steel wall in the final phase of construction. Assuming that method of construction, Petitioner takes the position (and his expert testified) that the statutes, rules, and permit conditions acceptable to Petitioner, and which generally prohibit pollution of the environment, are adequate. Even if the statutes, rules, and permit conditions acceptable to Petitioner would be adequate for the method of construction Petitioner now says he will use, Petitioner's application does not in fact commit to a method of construction. All Petitioner's application says is that he intends to dig with a trac-hoe. Without a binding commitment to a method of construction, it was appropriate for DEP to take the position that specific conditions were necessary to ascertain the method of construction Petitioner would use and, pending the "answers" to those "RAI conditions," and to impose broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. In his PRO, Petitioner committed to use the construction method described by his expert during the hearing, as follows: Excavation of any spoil shall be done by means of a mechanical trac-hoe; Prior to the excavation of any soil, Petitioner shall first install an isolating wall, such as interlocking sheet pile, between the existing man-made canal, and the proposed canal extension; The mechanical excavation shall be done in such a manner such that the excavated soil is not deposited in wetlands or in areas where it might be reasonably contemplated to re-enter the waters of the State of Florida; After the proposed canal extension is excavated to its project limits in the foregoing manner, the side slopes of the canal extension shall be allowed to revegetate prior to removal of the isolating wall. With a condition imposing this method of construction, fewer and narrower specific conditions will be necessary. ii. Seriatim Discussion DEP's proposed Specific Condition 1 requires a perpetual conservation easement prohibiting docking and mooring of water craft on all portions of Petitioner's property within the canal extension in order to "address cumulative impacts." But DEP did not prove that the proposed conservation easement was reasonably necessary to protect the interest of the public and the environment. First, DEP did not prove that there would be any cumulative impacts, much less unacceptable cumulative impacts, from Petitioner's project. See § 373.414(8), Fla. Stat.; Rule 40E-4.302(1)(b); and BOR § 4.2.8. Second, even if unacceptable cumulative impacts were proven, those could be addressed in other permit cases (assuming no DEP default in those proceedings), since the concept of cumulative impacts essentially requires an applicant to share acceptable cumulative impacts with other similar permittees, applicants, and foreseeable future applicants. See Broward County v. Weiss, et al., DOAH Case No. 01-3373, 2002 Fla. ENV LEXIS 298, at ¶¶54-58 (DOAH Aug. 27, 2002). As Petitioner points out, the easement further described in Specific Condition 1 appears to be overly broad for its stated purpose in that it would cover "the legal description of the entire property affected by this permit and shown on the attached project drawings," which could be interpreted to include not just the canal extension but the entire extended canal, or even the entirety of Petitioner's 6.6 acres of property. Indeed, the latter might have been the actual intention, since DEP's witness testified that Specific Condition 1 also was intended to address impacts from fertilizer runoff and septic tank leaching from new homes built along the canal. Although some of those impacts (as well as future construction of additional homes and docks) actually are secondary impacts, not cumulative impacts, it is possible that they can be addressed in DEP or SFWMD proceedings on future applications, as well as in Department of Health proceedings on septic tank installations. DEP's proposed Specific Condition 2 requires that: spoil material from the dredging to be "used for the sole purpose of constructing a single-family fill pad" on Petitioner's property under a pending permit; spoil "be placed in a manner so as not to affect wetlands or other surface waters"; and the "spoil disposal location shall be shown in the drawings required by Specific Condition #4 below." DEP did not prove that the first requirement was reasonably necessary to protect the interest of the public and the environment. First, it is unreasonable since Petitioner already has built the referenced single-family fill pad and a home on top of it. Second, the reason DEP's witness gave for this requirement was that, under an operating agreement with SFWMD (which was officially recognized), DEP only has jurisdiction to take action on single-family uses (which he defined to include duplexes, triplexes, and quadriplexes) but not on larger multi-family and certain other projects. However, the operating agreement on jurisdiction is not a reason to place Specific Condition 1 on the use of spoil material on Petitioner's default permit. SFWMD can regulate, in permitting proceedings under its jurisdiction, the placement of fill material for multi- family construction or other projects not under DEP jurisdiction. In addition, under the operating agreement, jurisdiction can be "swapped" by written agreement in cases where deviation from the operating agreement would result in more efficient and effective regulation. The second two requirements under Specific Condition 2 are reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 3 requires disclosure of all pending and issued permits for the property from SFWMD, Glades County, or the U.S. Army Corps of Engineers (USCOE). DEP did not prove that this is reasonable or reasonably necessary to protect the interest of the public and the environment. DEP probably has all such permits and can easily obtain any it does not have. DEP's proposed Specific Condition 4 requires fully dimensional plan view and cross-sectional drawings of the property and area to be dredged, before and after dredging, including a north arrow and the water depths in and adjacent to the dredge area. DEP's witness stated that the primary purpose of this part of the condition is to provide hydrographic information normally provided in an application (or required in an RAI) so that DEP's hydrographic engineer can ascertain flushing characteristics, which are pertinent primarily to the dissolved oxygen water quality parameter and to heavy metals from boat use. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate since DEP is required to issue a default permit. See Finding 9, supra. However, information regarding flushing characteristics, combined with other specific conditions, is reasonable and necessary to protect the interest of the public and the environment. See Finding 27, infra. In addition, the plan view and cross-sectional drawings required by Specific Condition 4 are to include the location of navigational obstructions in the immediate area, any roads, ditches, or utility lines that abut the property; any encumbrances, and any associated structures. DEP's witness stated that the primary purpose of this information is to determine whether Petitioner has provided reasonable assurance that the "public interest" test under Rule 40E-4.302 is met, and make sure that management, placement, and disposal of spoil material do not infringe on property rights or block culverts and cause flooding. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. However, information regarding the location of culverts to assure that management of spoil does not cause flooding is reasonable and necessary to protect the interest of the public and the environment. In addition to objecting to having to provide RAI information as a "default permittee," Petitioner's expert asserted that the information requested in Specific Condition 4 would be provided as part of the "as-built" drawings required by General Condition 6. But General Condition 6 does not require "as-built" drawings. Rather, it requires an "as-built" certification that can be based on "as-built" drawings or on-site observation. Besides, the purpose of the "as-built" certification is to determine "if the work was completed in compliance with permitted plans and specifications." Without the information requested in Specific Condition 4, there would only be vague and general permitted plans and specifications and hydrographic information. Finally as to Specific Condition 4, Petitioner objects to the requirement that the drawings be sealed by a registered professional engineer. However, Petitioner cites to General Condition 6, which requires that the "as-built" certification be given by a "registered professional" and cites Rule Form 62- 343.900(5), which makes it clear that "registered professional" in that context means a registered professional engineer. DEP's proposed Specific Condition 5 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that the canal extension will not violate water quality standards due to depth or configuration; that it will not cause a violation of water quality standards in receiving water bodies; and that it will be configured to prevent creation of debris traps or stagnant areas that could result in water quality violations. The reasonable assurance is to include hydrographic information or studies to document flushing time and an evaluation of the maximum desirable flushing time, taking several pertinent factors into consideration. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. In addition, Petitioner's expert testified without dispute that the information requested could take more than 180 days and cost approximately $20,000. However, it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be configured so as have the best practicable flushing characteristics. DEP's proposed Specific Condition 6 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that construction of the canal extension will meet all permit criteria set out in Rules 40E-4.301 and 40E-4.302 and in BOR § 4.1.1. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. DEP's proposed Specific Condition 7 requires Petitioner to submit existing water quality information for DEP approval within 180 days of permit issuance and before any construction. In this instance, DEP's approval would not be a determination on the provision of reasonable assurance but a determination as to the reliability of the water quality information, which is necessary to establish a baseline for assessing and monitoring the impact of the project. For that reason, the information is reasonable and necessary to protect the interest of the public and the environment. Petitioner's expert testified that the information could cost $2,000-$3,000 to produce (and more, if DEP rejects the information submitted, and more information is required). He also testified that water quality information already is available, including over 25 years worth of at least monthly information on all pertinent parameters except biological oxygen demand and fecal coliform, at a SFWMD monitoring station in the Rim Canal at Structure 127 (a lock and pump station at the Hoover Levee on Lake Okeechobee) approximately 8,000 feet away from Petitioner's canal. DEP did not prove that the SFWMD information would not serve the purpose of establishing baseline water quality for Petitioner's canal for all but the missing parameters. For that reason, only water quality information for the missing parameters is reasonable and necessary to protect the interest of the public and the environment in this case. DEP's proposed Specific Condition 8 requires that, if the water quality information required by Specific Condition 7 shows any violations of state ambient water quality standards, Petitioner must submit for DEP approval, within 180 days of permit issuance and before any construction, a plan to achieve net improvement for any parameters shown to be in violation, as required by Section 373.414, Florida Statutes. See also BOR § and 4.2.4.2. Normally, if applicable, this information would be expected in an application or RAI response. Petitioner's expert testified that this condition would require Petitioner to help "fix Buckhead Ridge" (unfairly) and that it would cost lots of money. But Petitioner did not dispute that the law requires a plan for a "net improvement," which does not necessarily require a complete "fix" of water quality violations, if any. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of a net improvement plan. See Finding 9, supra. But a specific condition that Petitioner implement a plan to achieve net water quality improvement in the event of any water quality violations would be reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 9 requires Petitioner to submit for DEP's approval, at least 60 days before construction, detailed information on how Petitioner intends to prevent sediments and contaminants from being released into jurisdictional waters. DEP asserts that this specific condition asks for a detailed description of how the applicant will comply with various subsections of BOR § 4.2.4.1 that address short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be constructed using adequate turbidity barriers; stabilize newly created slopes or surfaces in or adjacent to wetlands and other surface waters to prevent erosion and turbidity; avoid propeller dredging and rutting from vehicular traffic; maintain construction equipment to ensure that oils, greases, gasoline, or other pollutants are not released into wetlands and other surface waters; and prevent any other discharges during construction that will cause water quality violations. DEP's proposed Specific Condition 10 requires Petitioner to submit, at least 60 days before construction, detailed information regarding Petitioner's plans for handling spoil from dredging, including "discharge details, locations retention plans, volumes, and data used to size the disposal cell(s)." It allows this information to be combined with the Specific Condition 2 submittal. It also requires spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP asserts that this specific condition (like Specific Condition 9) is necessary to comply with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition requiring spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP's proposed Specific Condition 11 requires Petitioner to submit "as-built" drawings to DEP's Punta Gorda office with 30 days after completion of construction, "as required by General Condition #6." Petitioner's expert testified that this condition was unreasonable only because it duplicates General Condition 6 and two statutes. But General Condition 6 actually does not require "as-built" drawings, see Finding 9, supra, and it is not clear what statutes Petitioner's expert was referring to. For these reasons, and because it provides a filing location, Specific Condition 11 is reasonable and reasonably necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 12 requires Petitioner to "maintain the permitted canal free of all rafted debris by removal and property upland disposal." DEP asserts that this specific condition is necessary to comply with BOR § by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). Rafted debris, which may be of an organic or inorganic nature, can accumulate at the end of canals due to wind, waves, boats, or other forces. Such organic rafted debris may rot and, by creating a high biological oxygen demand, rob the water of dissolved oxygen. Petitioner's only expressed opposition to this condition is that the conservation easement in Specific Condition 3 might prevent compliance. While it is unclear how the easement would prevent compliance, the issue is eliminated if no conservation easement is required. DEP's proposed Specific Condition 13 requires Petitioner to use turbidity screens during construction for compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The turbidity screen requirements detailed in this specific condition are typical best management practices that contractors use and are a standard condition placed in permits of this nature by DEP. Petitioner contends that turbidity screens are unnecessary given his intended construction method and that other conditions are sufficient to cover DEP's concerns. However, as indicated, the application does not commit to a method of construction. With the application in its current state, Specific Condition 13 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 14 requires Petitioner to "ensure that any discharge or release of pollutants during construction or alteration are not released into wetlands or other surface waters that will cause water quality standards to be violated." Again, this condition is intended to ensure compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). While this specific condition seems general and perhaps duplicates other conditions (which was Petitioner's only point of contention), DEP added it in an attempt to make sure the possible and not uncommon release of pollutants from construction equipment was addressed. As such, the condition is appropriate. DEP's proposed Specific Condition 15 provides details on the use of turbidity screens. Petitioner's primary points of contention are that turbidity screens are not needed for his intended construction method and that other conditions are sufficient without this condition. As such, the relevant issues already have been addressed in connection with Specific Condition With the application in its current state, Specific Condition 15 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 16 requires Petitioner to used staked filter cloth to contain any turbid run- off and erosion from created slopes of the canal extension. This is the most common best management practice and is a standard condition for ERP permits dealing with side slopes that may affect water quality. Unstable slopes can result in chronic turbidity, which is detrimental to wildlife. Unstable slopes also can lead to upland runoff being deposited into the water along with debris and sediment. Such runoff can bring deleterious substances such as heavy metals and nutrient-loaded substances that might impact dissolved oxygen levels in the water. Petitioner's primary points of contention on Specific Condition 16 are that, like turbidity screens, staked filter cloth is not needed for Petitioner's intended construction method and that other conditions are sufficient without this condition. (Petitioner also questions why the condition gives Petitioner up to 72 hours from "attaining final grade" to stabilize side slopes, but the condition also requires side slope stabilization "as soon as possible," and the 72-hour outside limit seems reasonable.) As such, the relevant issues already have been addressed in connection with Specific Condition 13 and 15. With the application in its current state, Specific Condition 16 is appropriate subject to a demonstration by Petitioner that staked filter cloth is not needed if he uses the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 17, 18, 19, and 20: details required long-term water quality monitoring and reporting [#17]; establishes sampling intervals and requires Petitioner to submit a "plan to remediate" if monitoring shows water quality violations or "a trend toward future violations of water quality standards directly related to the permitted canal" [#18]; allows "additional water quality treatment methods" to be required if water quality monitoring shows it to be necessary [#19]; and allows water quality monitoring requirements to be modified (which "may include reduction in frequency and parameters . . . or the release of the monitoring process"), "based on long term trends indicate that the permitted canal is not a source to create water quality violations [#20]." These conditions are intended to ensure compliance with BOR § 4.2.4.2 by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The evidence was that these specific conditions are standard for ERP permits where a constructed system may lead to water quality violations in the long term. Contrary to Petitioner's contentions, conditions of this kind are not dependent on a post-construction finding of water quality standard violations (even though DEP defaulted on Petitioner's application). Besides contending that monitoring requirements in Specific Conditions 17 and 18 are unnecessary, Petitioner also contends that they are too extensive and not tailored to Petitioner's intended construction, but DEP proved their necessity, even assuming the construction method committed to in Petitioner's PRO. Petitioner complains that Specific Condition 19 is vague and that Petitioner's ERP does not provide for "water quality treatment." But the present absence of post-construction water quality treatment should not preclude the possible future imposition of some kind of water quality treatment if monitoring shows it to be necessary. For this kind of condition, the absence of detail regarding the kind of treatment to be imposed is natural since it would depend on future events. DEP's proposed Specific Condition 21 merely requires that Petitioner's project comply with State water quality standards in Florida Administrative Code Rules 62-302.500 and 62- 302.530. Petitioner contends that this is duplicative and unnecessary. But it certainly is not unreasonable to be specific in this regard. No Improper Purpose As part of his request for attorney's fees under Section 120.595, Florida Statutes, Petitioner necessarily contends that DEP participated in this proceeding "for an improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." Even assuming that DEP should be considered a "nonprevailing adverse party," Petitioner's evidence did not prove that DEP's participation was for an "improper purpose." To the contrary, DEP "participated" initially because Petitioner filed an application. DEP's denial of Petitioner's application was not proven to be "for an improper purpose" but rather for the purpose of attempting to protect the environment. The propriety of the denial was litigated in Tuten I, which made no finding that the denial was "for an improper purpose" and which ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." The two-year delay between Tuten I and Tuten II was not fully explained, but Tuten II also made no finding that the denial, or the delay, or DEP's proposed ERP with conditions were "for an improper purpose" and again ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." While DEP's views on the nature of the hearing to be conducted for purposes of determining "reasonable mitigative conditions" was rejected, it was not proven that DEP argued its views "for an improper purpose" or that its participation, once its views were rejected, was "for an improper purpose," as defined by statute. To the contrary, the evidence was that DEP participated in this proceeding in an attempt to place conditions on Petitioner's permit which DEP thought were necessary to protect the environment, many (although not all) of which are accepted in this Recommended Order. As Petitioner accepts and points out, it remains necessary for Petitioner to construct and operate his project in a manner that does not violate environmental statutes and rules. But without any water quality information or monitoring, DEP's enforcement of those laws and rules will be hamstrung.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Petitioner a default ERP, to expire five years from issuance, to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing man-made canal, as applied for, subject to: DEP's proposed General Conditions 1-19; DEP's proposed Specific Conditions 4 and 11-21; DEP's proposed Specific Conditions 2, 5, and 7-10, as modified by the Findings of Fact; and the construction method committed to in Petitioner's PRO (see Finding 14, supra. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006.
The Issue On June 7, 1991 the Department of Environmental Regulation (DER) released its intent to issue Permit No. DC05-194008, authorizing Florida Cities Water Company (FCWC) to construct a 300-acre restricted public access spray irrigation system for the land application of treated domestic wastewater (Sprayfield Permit). And, on August 6, 1991 DER released its intent to issue Permit No. MS05-194894, relating to stormwater management and management and storage of surface waters (MSSW Permit) for the sprayfield site. Petitioners Brevard Groves, Inc. and H & S Groves, Inc. (Groves), Parrish Properties, Inc., Parrish Management, Inc. (Parrishes), Atico Financial Corp. (Atico) and David and Eleanor Shreve (Shreve), each requested a formal administrative hearing challenging the issuance of the sprayfield permit. Groves requested a hearing challenging the issuance of the MSSW Permit. The ultimate issue is whether FCWC is entitled to these permits.
Findings Of Fact FCWC is a private utility company, with headquarters at 4837 Swift Road, Suite 100, Sarasota, Florida, 34231. FCWC's Barefoot Bay Wastewater Treatment Plant (the WWTP) provides water and wastewater service to the Barefoot Bay development in southern Brevard County, Florida. DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900, is an agency of the State of Florida which regulates domestic wastewater treatment and disposal facilities and permits their construction and operation. For domestic wastewater projects, DER is also charged with reviewing applications for stormwater management and management and storage of surface water pursuant to an operating agreement between DER and St. Johns River Water Management District. David and Eleanor Shreve are beekeepers who live approximately a quarter-mile from the proposed sprayfield. They maintain beehives in the groves and woods surrounding the proposed site. The remaining Petitioners own citrus groves that are adjacent to, or in the immediate vicinity of the proposed site. These groves are producing and are actively maintained. The WWTP has a treatment capacity of 0.9 million gallons per day (MGD). As of July, 1990, the WTTP was treating and disposing of effluent from approximately 4,200 residences in the Barefoot Bay development. At buildout, within the five-year life of the Sprayfield Permit, the WWTP will serve 5,000 residents, and will generate approximately 0.6 MGD of wastewater. Disposal of treated effluent is presently achieved by a 40-acre sprayfield, storage ponds and direct discharge of pond overflow to the San Sebastian Drainage District Canal (Canal). In 1986, DER issued FCWC a warning notice to the WWTP regarding an unlawful discharge to the Canal. FCWC met with DER to discuss options to correct the discharge. In 1988, FCWC entered a Consent Order that would allow FCWC to discharge treated effluent into the Canal until a deep injection well could be built for alternative disposal. FCWC also discussed other alternatives with DER, such as golf course irrigation. The Consent Order was amended in 1991 to provide for land application in lieu of deep injection. In accordance with the amended Consent Order, FCWC has submitted monthly monitoring reports to DER, for the WWTP and for the storage (percolation) ponds. DER has never issued a notice of violation to FCWC for failure to comply with monitoring in the Consent Order. The Site The proposed sprayfield site is divided into two large tracts, the "northern parcel" and the "southern parcel." The site is primarily citrus groves. Although some citrus trees were damaged by a freeze in recent years, most are still viable. Most of the areas between the trees and limited areas without trees are covered with dense grasses and weeds. The site, and the surrounding groves, have been significantly altered to provide sufficient drainage for citrus trees, which require well-drained conditions. The area is covered by shallow ditches (swales), between mounded rows of earth comprising beds for the trees. These citrus mounds, created by soil cast up during excavation of the swales, occur on 60-foot centers and rise 2 1/2-3 feet above the bottom of the swales. The swales have pipes at each end, which discharge into an agricultural collection ditch or the Canal. Each block of citrus is surrounded by a collection ditch some 8-10 feet deep. All collection ditches ultimately discharge into the Canal, which borders the site on the north and is approximately 20 feet deep and 100 feet wide. The collection ditches and Canal prevent the entrance of offsite surface water run- off into the site and receive surface water run-off and groundwater seepage from the site. The Sprayfield Project The project is proposed in two phases. Phase I meets total annual effluent disposal needs of 0.55 MGD, using both the proposed sprayfield and the existing 40-acre sprayfield, which will continue in operation for both phases of the project. Phase II meets the total annual effluent disposal needs of 0.6 MGD at build-out. This results in an average annual application rate of 0.54 inch/week or approximately 28 inches per year on the proposed sprayfield. The project is designed to eliminate the current discharge to the Canal. The effluent will be given secondary treatment with basic disinfection. The treated effluent will be pumped from the WWTP to storage ponds and then to the proposed sprayfield. The existing ponds will be retrofitted as storage ponds for Phase I. An additional storage pond will be constructed at the proposed sprayfield for Phase II. The spray irrigation system will operate primarily with four traveling gun sprinklers. Two sets of fixed-head sprinklers will also be used for the two small triangular portions of the site. The traveling sprinklers will be operated for approximately 5.9 hours/day during Phase I and 6.5 hours during Phase II. The four traveling sprinklers will run simultaneously on four of the thirty-three travel lanes (tracks) located between the swales covering the site. Ordinarily each track will be sprayed every eighth day. To make up for days when irrigation is not possible, additional disposal capacity can be obtained by operating the sprinklers for extra shifts on tracks not previously irrigated that day. The site will be mowed regularly, and any accumulated grasses or debris will be removed. Any areas presently in weeds, or the areas not covered by vegetation are reasonably expected to fill in with dense grasses when irrigation commences. Maintaining the grass cover in the swales will prevent erosion of soil and debris into the swales and reduce the need for maintenance of clogged swale outlet pipes. The system is designed and will be operated to avoid ponding or direct surface run-off of sprayed treated effluent. However, there may be some very limited potential for droplets of treated effluent clinging to vegetation being washed into the swales by a heavy storm event immediately following an application. Therefore, the sprinklers will not be operated when the water table is closer than four inches from the bottom of the swales. Operators will know when to spray by reading automatic groundwater elevation monitoring gauges installed in several places throughout each block of citrus, including the middle. In addition, an automatic device will shut off sprinklers during a rainfall, so that no significant amount of treated effluent will leave the site mixed with stormwater. The site is bordered on three sides by groves and on one side by undeveloped vacant land. The width of the proposed buffer zone from the sprayfield wetted area to the site property line is at least 100 feet, as required in Rule 17-610.421(2), F.A.C., and is substantially wider for extensive lengths of the project border. The buffer is approximately 130 ft. wide on the eastern boundary of the northern parcel, approximately 250 to 235 ft. wide on the western boundary of the northern parcel, and approximately 225 to 160 ft. on the western border of the southern parcel. The distance between the wetted area and adjacent property owners' boundaries is much greater than 100 ft. for other portions of the sprayfield borders due to linear features that provide additional buffering. It is over 200 ft. from the wetted area to the nearest property owner on the northern border of the northern parcel because of the San Sebastian Canal, and 160 ft. on the southern border of the northern parcel and the southern and eastern borders of the southern parcel because of the 60-foot wide Micco Road right-of-way. Aerosal Drift and Other Off-Site Impacts While Petitioners allege that their groves would be contaminated by aerosol drift from the site, they presented no expert or other competent, substantial evidence on the extent or volume of such drift. FCWC air modelling expert, Dr. Robert Sholtes, used the EPA Industrial Source Complex Model (ISC), the most commonly used predictive model in the air pollution community, to evaluate the project's aerosol drift. While the sprinklers are planned to be operated a maximum 6.5-hour shift, a conservative 7.0-hour shift was used. Other data inputs to the ISC Model were hourly windspeeds at the Daytona Beach weather station for five years; sprinkler nozzle size and pressure; and droplet size, distribution and settling rates obtained from the American Society of Agricultural Engineers. The model yielded the annual average deposition of sprayed effluent in grams per square meter (gm/m2) outside the wetted area for one sprinkler as it moves along its track. The accumulated deposition off the site property line, considering operation of all tracks, can be predicted using these results. Because heavy deposition of droplets settles out fairly rapidly, the aerosol from tracks farther into the site does not significantly affect the maximum impact shown for one track. Due to the prevailing east and west coastal winds, heaviest deposition will occur off the eastern and western property line of the site. The volume of treated effluent that will be blown offsite is not substantial. The greatest volume is approximately 1000 millimeters/square meter/year (ml/m2/yr) off the eastern property line out to approximately 50-75 feet, and 500 ml/m2/yr off the western property line out to approximately 75 feet. A maximum of 100 ml/m2/yr is predicted and a maximum of 50 ml/m2/yr is predicted off the southern and northern lines, respectively. In practice, volumes of aerosol drift off-site will be below the predicted levels in areas where trees occur in the buffers. Most significantly, there are existing rows of citrus trees along the eastern border of the northern parcel within the buffer area, which is the area of heaviest predicted drift. In addition, aerosol drift will be minimized by operating procedures. Wind speed and direction will be monitored at the site. If the wind is over 20 miles per hour, there will be no spraying. For winds of lesser speeds, the spray tracks on the edges of the sprayfield will not be used during a strong directional wind, e.g., for a wind blowing east, the track on the eastern border will not be utilized. The tracks are on approximately 240-foot centers. Therefore, elimination of spraying for the track on the edge of the site will have the effect of withdrawing the aerosol drift deposition pattern 240 feet further into the sprayfield. Considering that the farthest extent of the maximum 1000 ml/m2/yr levels of drift is 75 feet, such a program will be very effective in minimizing drift. Because no motors will be required to operate the site, significant noise is not expected. The treated effluent will not contain significant amounts of odor-causing constituents, and odors are not expected. Finally, lighting is not planned on the proposed sprayfield, so this is not expected to be a source of offsite impact. Assurances for Proposed Application Rate A determination of the site's ability to accept treated effluent at the maximum proposed application rate of 0.54 inch/week without adverse effects was based on (1) the hydraulic loading capacity of the site to receive the applied water, considering soil permeability and other physical site conditions, and (2) the allowable nitrogen loading rate, considering the ability of the vegetation to uptake the nitrogen contained in the treated effluent. The U.S. Environmental Protection Agency (EPA) publishes a general manual for technical assistance in designing land application systems across the United States. This manual, "Land Treatment of Municipal Wastewater - Process Design Manual" (EPA Manual), is cited as a general technical guidance source in DER Rule 17- 610.300(4), F.A.C. The EPA Manual contains formulae for the calculation of both the hydraulic loading capacity and the allowable nitrogen loading rate. The EPA Manual recommends use of the more restrictive of the hydraulic loading capacity or the allowable nitrogen loading rate as the hydraulic loading rate for the project. Hydraulic Loading Capacity. A hydraulic loading capacity of 0.63 inch/week for the proposed sprayfield was determined based on field exploration, laboratory testing, hydrogeological conditions and engineering evaluation, summarized in a report included in the application. This 0.63 inch/week hydraulic loading capacity is above the maximum proposed application rate of 0.54 inch/week and substantially below the maximum rate of 2 inches/week allowed by DER Rule 17-610.423(4), F.A.C. EPA Equation 4-3 for hydraulic loading capacity balances the volume of water that enters the site with the volume of water that leaves the site. Values in Equation 4-3 are evapotranspiration, which is the water released to the atmosphere from soil surfaces and by vegetation (ET); precipitation rate (rainfall); and Pw, which is water removed by vertical percolation downward through the soils. Due to the high vertical permeabilities of the sandy soils at this site, unrefined use of EPA Equation 4-3 would give a very high hydraulic loading capacity for this project, on the order of 10 times that proposed by FCWC. Therefore, a more detailed input/output water balance formula was used to determine annual hydraulic loading capacity (applied effluent in the formula) of 0.63 inch/week: rainfall + applied effluent + groundwater inflow = evapotranspiration, + groundwater outflow + surface run-off + evaporation + irrigation losses. The average annual rainfall, based on data from the U.S. NOAA weather station at Melbourne, is 48.17 inches. Due to the isolating effect of the deep ditches surrounding the site, groundwater inflow is considered to be so negligible that it was not assigned a value for the equation. ET, based on standard scientific references, is 45 inches/year for citrus trees. An additional 20 inches/year loss is attributable to grasses covering soil surfaces. In lieu of vertical percolation, groundwater outflow laterally through the surficial aquifer was projected to be 1.8 inches per year, based on hydraulic conductivity and soil permeabilities for the site. Surface run-off of stormwater was estimated to be 10 inches per year. Irrigation losses were estimated at 15% of the amount of applied effluent. Pond Storage Capacity. The proposed application rates for the two phases of the project are annual averages. The volume of storage needed for occasions when conditions preclude application must be determined. DER requires the calculation of storage by analytical means for the 10-year rainfall recurrence interval, using 20 years of rainfall data, and accounting for all water inputs on a monthly basis, using site-specific data. A minimum storage volume equal to three days application is required. Rule 17-610.414 (2), F.A.C. Calculations presented in the application met these requirements and showed storage needs of 8.08 million gallons (MG), or approximately 15 application days' volume, for Phase I; and 15 MG, or 25 application days for Phase II. Additional storage calculations, reflecting the monthly variations of wastewater inflow due to the seasonal population, were prepared for Phase I. These calculations reflected the same storage requirements. Petitioners' Allegations Regarding Application Rate and Storage Although they had prepared no analyses, performed no calculations, conducted no laboratory tests and undertaken only one field test (test hole for groundwater level), Petitioners' witnesses asserted that site conditions precluded successful operation of the sprayfield at the maximum proposed application rate of 0.54 inch/week. They asserted that swale pipes would plug and a clay "hardpan" at the bottom of the swales would prohibit percolation of stormwater. Thus, the swales would be full of water for long periods and further application would be precluded. They also asserted that significant volumes of treated effluent would leave the site as run-off. They alleged treated effluent would enter the swales directly from accumulation of spray and indirectly from seepage from the sides of the citrus mounds. Finally, Petitioners asserted 15 days of storage was inadequate because the site would be too wet for application for at least a month. FCWC presented testimony and evidence based on site reviews, numerous field and laboratory tests, computer modelling, and calculations that successfully refuted these allegations. Petitioners' expert in grove management and local soil conditions, Mr. Burnette, stated that extremely wet conditions required pumping of swales for weeks at a time in nearby groves. FCWC's experts asserted that the proposed sprayfield site currently has, and will continue to have, under proper maintenance, much better drainage than Mr. Burnette's groves, where regular grading of swale inverts and herbicide applications denude soil and cause erosion which plugs pipes and backs up water in the swales. In addition, unlike the situation described in Burnette's groves, the proposed site contains no swales that are lower in elevation than the collection ditches, thereby facilitating stormwater run-off. The top layer of soil comprising the citrus mounds and the swales is relatively clean sand. Petitioners' so-called "hardpan" is a slightly clayey to clayey fine sand layer which separates the upper sand from a thick layer of very clean, beach-type sand. FCWC geotechnical experts determined the clayey sand layer was 18 to 24 inches below the bottom of the swales. Without any field testing, Petitioners' expert hydrogeologist, Mr. Oros, asserted that the clayey sand layer was at the bottom of the swales. In contrast, Mr. Burnette stated that the clayey sand layer occurs four to eight inches below the bottom of the swales on the adjoining groves, where the graded swales are 10 to 14 inches deeper than the shallow swales on the proposed sprayfield site. Thus, Mr. Burnette's testimony supports the FCWC conclusion that this layer is found up to 2 feet below the swales on the proposed site. Moreover, contrary to Petitioners' assertions that the layer acts as a "hardpan", water can pass relatively freely through it and the water table will not "perch" above it. The U.S. Department of Agriculture Soil Conservation Service (SCS) reports a permeability value for this soil type of one to 12 feet per day. Dr. John Garlanger, FCWC expert in subsurface investigation and soil mechanics, conducted a field inspection of the soil and reviewed grain size distribution analyses. He determined that the permeability of the clayey sand layer is about one foot of water per day. Petitioners' expert hydrogeologist concurred that the layer could have this permeability rate. Soil is at the "wilting point" when its water content is too low for plants to transpire additional water. Soil is at "field capacity" when added water "fills up" the soil and it becomes saturated. The "water table" is the level at which the soil is totally saturated. Petitioners erroneously assert that 90% of the 0.54 inch of treated effluent will travel straight down to the water table. Instead, due to capillary action, the first foot of the sandy soil at the site can store about 0.6 inch of water between the wilting point and field capacity. If there is no rain between applications, 100% of the 0.54 inch will be transpired by vegetation out of the first foot of soil. This "resets" the soil moisture content to the wilting point in preparation for another application. If heavy rains cause the soil to remain at field capacity rather than returning to the wilting point through ET, the soil can still absorb up to 2.25 inches of water per foot, or three-fourths to one inch of water per four inches of soil, before it reaches saturation. Therefore, even if the soil is saturated up to 4 inches below the swales, the top 4 inches of soil will still absorb the 0.54 inch of treated effluent without reaching total saturation or causing any run-off. If subsequent heavy rains saturate the remaining soil and raise the water table to the bottom of the swales, the excess rainwater which falls on the saturated surface will run off as stormwater, and most of the treated effluent will remain stored within the soil. Furthermore, because the water table is proposed to be measured at centers of the blocks where, due to distance from the drainage ditches, the water table is closest to the surface, soil storage capacity across the site will exceed these projected levels. Petitioners' experts also asserted that if it rains after the 0.54 inch application, the groundwater will "mound" up below the citrus mounds, creating a hydraulic gradient or head differential (between the water table under the citrus mounds and the water table below the swales) sufficiently great to cause the treated effluent in the mound to flow toward the swales and seep into them from the sides of the citrus mounds. Mr. Golding admitted that such seepage would not occur when the groundwater table is below the bottom of the swales. Nevertheless, he opined that seepage of treated effluent would be considerable because he believed, based on opinion and experience alone, that the water table would be at the bottom of the swales or higher for at least 30 days straight in a "wet year." FCWC's experts successfully refuted these assertions. A significant portion of the treated effluent falling onto the citrus mounds will be stored in the soil as described above. The treated effluent (only applied when water level is 4 inches below the swales) that actually reaches the water table will cause only a very slight "water mound" (only 2 inches in 30 feet) which will not produce any appreciable "head" or lateral flow to the swales. On only three occasions (a total of 8 days) during the wettest year in ten did the "water mound" rise above the bottom of the swales resulting in any groundwater seepage from the citrus mounds into the swales. Thus, during the entire wettest year in ten, less than one-half of 1% (0.12 inch of the approximately 28 inches) of annual applied treated effluent, very diluted with groundwater, might seep from the mounds into the swale. Contrary to Petitioners' expert's assertion that the seasonal high water level (SHWL) was not provided by FCWC, this information was supplied in the application and was reaffirmed by calculations of Dr. Garlanger at rebuttal. The importance attached to the SHWL for this project was not adequately explained by Petitioners. FCWC experts explained that the SHWL is the average (NOT maximum) height of the groundwater during the two to six wettest months of the year. Because the water table varies throughout the year, it is the calculation of the position of the water table from month to month that is significant and is required by DER. This monthly changing water table was the basis of storage water balance calculations contained in the application. Even though the monthly storage calculation in the application meets the DER/EPA requirements, Petitioners' witnesses asserted that the application did not indicate how many days the water table would rise to four inches below the swales and thus how many days spraying was precluded and storage was required. Dr. Garlanger analytically calculated the water table beneath the site, using Darcy's Law, and known parameters at the site, such as the depths of the ditches, the geometry and relative distances, and the thickness and permeability of the soil layers. Thus, although never required for any of the 100 land application projects he has evaluated, Dr. Garlanger performed computer modelling and calculations to predict the daily level of the water table beneath the swales for both Phase I and II during the wettest year in ten. Water inputs in his model included treated effluent and daily rainfall from an actual year (1969) when rainfall reached the levels of the statistically wettest year in ten. Water losses were soil storage, ET, distribution losses, deep percolation and run-off. Treated effluent was not applied when the model predicted that the water table would be higher than four inches below the bottom of the swales and when there was significant rainfall (more than one-hundredth of an inch). This modelling predicted that 6.1 MG/11-day storage was needed for Phase I. Thus, the project as proposed has substantially more storage than needed, with a proposed 8.1 MG/15-day storage. The model produced similar results for Phase II, showing a total 10.1 MG/18-day storage need compared with the proposed 15 MG/25-day storage. Petitioners also challenged various "irrigation efficiency" figures used by FCWC experts. All water leaving a water source, in this case the WWTP, does not reach the roots of the crops for which it is intended. "Irrigation efficiency" expresses this fact as the percentage of water pumped that is used by the vegetation. In the monthly storage water balance calculations the applicant used an "irrigation efficiency" of 70% of the total applied treated effluent, which is recommended in IFAS Bulletin 247 and in the USDA, SCS, "Florida Irrigation Guide"; 15% of the applied treated effluent was attributed to "irrigation losses" in the calculations in the application to determine the hydraulic loading capacity; and Dr. Sholtes stated that data he used indicated that 94% of "the water that came out of the nozzle reached the ground" within the wetted area of the site and the remaining 6% was aerosol drift and evaporation. Petitioners' expert questioned whether an irrigation efficiency of 70%, 85% or 94% should have been used and suggested that the calculations should be redone. The expert misunderstood the terms, comparing the proverbial apples and oranges. With a 70% irrigation efficiency, 30% treated effluent is lost to the plants. Only a small portion of this 30% loss is attributable to aerosol drift and evaporation in the air. Most of the 30% treated effluent hits the ground but is still lost to the plants through evaporation of treated effluent intercepted on plant leaves, losses from the distribution system, e.g., leaky fittings at the WTTP, and percolation of water below the reach of plant roots. The "irrigation losses" (15%) in the application include all of those types of losses, except the treated effluent losses through percolation. This approximately 15% of the total treated effluent appeared as a separate value from "irrigation efficiency." Water Quality Assurances Nitrogen Loading Rate. Because nitrogen is generally the constituent of most concern for sprayfields, EPA Equation 4-4, which is intended to produce a conservative result, projects nitrogen loading possible without exceeding the groundwater standard for nitrate. Two FCWC experts calculated the allowable nitrogen loading rate. James Christopher, project engineer and expert in water quality and chemistry, adjusted the EPA equation to reflect stormwater leaving the site, which is a more technically correct refinement of the equation and has the effect of lowering the allowable rate. A "U value" (the variable for rate of nitrogen uptake by crop)of 100 kilograms/hectare/year (kg/ha/yr) was used by James Christopher. Dr. Harvey Harper, another FCWC water quality expert, an environmental engineer, who has taught numerous university courses in wastewater treatment and has been involved in scientific studies of pollution removal, also calculated the nitrogen loading rate for the annual average rainfall and the wettest year in ten. He did not adjust EPA Equation 4-4 for stormwater run-off, because Petitioners had questioned any deviations from the formula. He used a U value of 150 kg/ha/yr, because he considered a value of 100 too low to be realistic. He used the highest nitrogen value in data from the WWTP. Other values he used in the equation were nearly identical to those of Mr. Christopher. The results were an allowable nitrogen loading rate of 0.75 inch/week for a year of average rainfall and 0.93 inch/week for the wettest year in ten. These rates are substantially higher than the proposed gross hydraulic loading rate of 0.54 inch/week. Petitioners' expert, Dr. J. P. Subramani, asserted that a U value of 0 kg/ha/yr should have been used, although he admitted that a site with a U value of 0 kg/ha/yr would be bare sand devoid of vegetation. The U values of 100 and 150 kg/ha/yr used by FCWC were extremely conservative. The EPA Manual provides U value ranges for forage grasses, at a low of 130-225 kg/ha/yr for bromegrass, to a high of 400-675 kg/hayr for coastal bermuda grass. Ignoring the testimony of FCWC witnesses that the grass would be mowed and removed from the site, Dr. Subramani supported his opinion only with the unfounded contrary assertion that the vegetation on site will not be harvested and removed as a crop. Petitioners alleged that discharges from the site would contaminate surface and ground waters and otherwise adversely affect water quality; inadequate renovation of pollutants would take place in the soil; and the receiving waters were already below standards. Petitioners' experts did no studies or analyses, nor did they predict expected concentrations for any parameters for sprayed treated effluent leaving the site as surface waters or groundwaters. Petitioners' exhibits regarding water quality issues consisted of two single-day monitoring reports for the existing WWTP discharge and the Canal and a set of 1990-91 water quality report sheets for the WWTP. FCWC's expert, Dr. Harper, analyzed the project's impacts on groundwater and on surface waters (the Canal) if the treated effluent were to leave the site as surface run-off in the swales, as groundwater seepage into the collection ditches, or as aerosol drift. Based on 1990-91 water quality monitoring of the WWTP's existing treated effluent, Dr. Harper projected the concentrations of parameters of concern for the treated effluent to be sprayed at the site. Although monitoring of heavy metals is not required at the WWTP, he also projected levels for these parameters based on EPA figures and existing data from two larger domestic wastewater treatment plants. Because those two plants have contributions from industrial and commercial components not found at the WWTP, the projections substantially over-estimated heavy metals expected for the WWTP. Groundwater Impacts. Dr. Harper estimated the pollution removal efficiencies for treated effluent traveling through approximately one foot of soil by reference to the EPA Manual and a study he had performed. He then applied these efficiencies to the projected concentrations for the sprayed treated effluent. Even at maximum projected concentrations, the results showed that projected constituents would be at or better than groundwater quality standards after renovation in the soil. Thus, due to low levels of constituents of concern, including those for which no numerical standard is provided in the rules, the project will not cause groundwater water quality violations and will have no adverse effect on the biological functions in the groundwaters directly underlying the site. Contrary to Petitioners' assertions, DER witnesses stated that DER does not interpret provisions of Rules 17-600.530(4) and 17-610.310(3)(c)4, F.A.C., as requiring background groundwater samples in the application. Because research has shown that groundwater quality results for sprayfields are generally very good, DER routinely defers such sampling until after permit issuance. Thus, the groundwater monitoring plan in the application and in the draft sprayfield permit provides that all monitoring wells will be sampled to establish background water quality and results submitted to DER prior to spray irrigation. DER's expert witness in environmental engineering and wastewater land application design, Christianne Ferraro, as well as John Armstrong, DER's environmental specialist in site contamination clean-up, stated that they had reviewed groundwater monitoring currently provided by FCWC for the WWTP. They found no nitrogen violations. Surface Water Impacts. The preponderant evidence showed that treated effluent will not flow directly into the swales. Therefore, FCWC proved it will not leave site as surface run-off. However, in order to project the worst-case water quality evaluation for droplets greatly diluted by rainwater or groundwater which may enter the swales, it was assumed that all treated effluent landing within swales "made of glass" would run off directly into the Canal. In addition, uptake, removal or dilution likely to occur in the collection ditches was ignored. Pollution removal efficiencies for grassed swales (based on a year-long study) were applied to the projected concentrations for the treated effluent. After renovation in the swales, any treated effluent leaving the site would contain concentrations for parameters of concern at or better than surface water quality standards. Therefore, water quality in the receiving surface waters will not be violated. Due to removal efficiencies for soils, the treated effluent leaving the site as groundwater seepage into the collection ditches is expected to meet surface water quality standards. In addition, the trace quantity of effluent (0.12 inch for wettest year in ten) which may seep into the swales will reach the San Sabastian Canal only after being greatly diluted within the groundwater and filtered and purified in the soil in the citrus mounds and grassed swales. Even projecting ten times the amount of aerosol drift predicted for the project, the water quality impact of any sprayed treated effluent entering the Canal as drift is so small as to be insignificant. Ambient Water Quality. The existing discharge is having minimal effect on the water quality of the Canal. Furthermore, by eliminating the direct discharge, the project will reduce the present impacts on the Canal by 92-99%. Nonetheless, Petitioners suggest that the project may further degrade ambient waters which they allege are already below standards. Dr. Harper assessed the ambient water quality characteristics of the Canal, which is Class III fresh surface water and the ultimate receiving water for the site. Even including water quality data for the Canal put in evidence by Groves, the Canal is not currently at or below any state water quality standards for Class III waters, except for occasional Dissolved Oxygen (DO) levels. Levels of DO in sprayed treated effluent are expected to be very high. Even if groundwater seepage into the collection ditches and the Canal from the proposed sprayfield contains low levels of DO due its travel underground, it will not lower levels of DO in the ambient waters because the groundwater will also be low in BOD, which depresses DO. Thus, groundwater seepage is expected to have a neutral effect on ambient DO or to increase DO levels due to its diluting effect on BOD. Groundwater inflow to the site is negligible but outflow occurs at a significant measured rate. The only significant inputs are sprayed treated effluent and rainfall. Therefore, the groundwater under the site will eventually reach a stable condition where its constituent levels are the average of the constituent levels in rainwater and the treated effluent. The treated effluent to be applied on this site is at or above state groundwater standards. Necessarily, regardless of the condition of the existing groundwater it cannot possibly be degraded by the treated effluent to below state standards and may well be improved by it. Thus, FCWC has provided reasonable assurances that Rule 17- 600.530(4), F.A.C., has been met, without monitoring of ambient groundwaters in the application. The deposition of treated effluent will not violate the standard that all waters of the state shall be free from components which, alone or in combination with other substances, are present in concentrations that are carcinogenic or teratogenic to humans, animals or aquatic species or that pose a serious threat to public health, safety or welfare. Human Health Risk and Contamination. Petitioners allege that the sprayfield poses a hazard for contamination of their properties. They produced no witness or evidence of contamination other than experts in grove management, citrus production and management, and Petitioners themselves, who expressed scientifically unsubstantiated fears of the impact of the sprayfield on human health or the marketing of their fruit and honey. FCWC expert Dr. Christopher Teaf, who teaches biology, toxicology and risk assessment at Florida State University and is also president and principal toxicologist with a firm doing hazardous substance and waste management research, determined that the project poses no off-site contamination hazard. Pathogens. Fecal coliform is a standard measure for the health hazards of treated effluent based on an indicator group of microbiological organisms, present in the intestinal tracts of all warm-blooded animals as well as a number of insects and cold-blooded species. These organisms do not themselves ordinarily cause human disease, but may indicate the presence of other pathogenic organisms. Coliform bacteria are common in water bodies in general, and the state limit for these bacteria is 200/100 ml. Rule 17- 302.560(6), F.A.C. The World Health Organization has concluded that levels as high as 1,000/100 ml constitute an adequate standard and will not be associated with human disease. Only extremely limited numbers of bacteria can survive the hazardous journey from the WTTP to the Petitioners' property. First, required chlorination at the WWTP will reduce the coliforms to no more than 200/100 ml. At that level, pathogenic bacteria are negligible, if present at all. Pressures during ejection from the spray heads will cause a 70-90% mortality rate. Once airborne, bacteria will be killed because of temperature, ultraviolet radiation and desiccation. As water drops evaporate, constituents become more concentrated and the drops become toxic environments for bacteria. Bacteria falling to earth are filtered in the first few inches of surface soils. Any organisms borne off site will find that, due to the antibacterial qualities of citrus peel and fruit and the plethora of chemical agents routinely applied, the adjacent groves are an extremely inhospitable environment. Too few bacteria will survive at FCWC's proposed application levels, or at 10 times those levels, to constitute an infective dose and contribute to the incidence of human disease. Thus, treated effluent in the form of aerosol drift will have no adverse effect on the health of humans or otherwise cause contamination of areas adjacent to the proposed sprayfield. Consumption of Fruit. Bacteria are not taken up by the plant roots and the aerosol drift will not have any effect on the actual health of the citrus trees themselves. The minimal deposition from spray will be removed through washing required by governmental standards to remove dirt, grime and other contamination, such as fungicides, herbicides and pesticides applied as a normal practice in the citrus industry. Based on fifteen years of scientific literature, including the EPA Manual, crops irrigated with treated effluent do not contribute to human health problems in populations that consume those crops. With application of treated effluent with bacterial concentrations, even 10,000 to 100,000 times higher than the standard, there has been no incidence of human disease related to the consumption of such crops. Part II of Rule 17-610, F.A.C., "Reuse: Slow rate land application systems; restricted public access;" governs the type of sprayfield proposed by FCWC. Petitioners alleged that, due to the proximity of their groves and beekeeping activities, higher levels of treatment than those in Part II should be required. They argued that "advanced wastewater treatment" (AWT), defined in Section 403.086(4), F.S., would be more appropriate. This statute gives DER the discretion to require AWT when it deems necessary. Section 403.086(1)(a), F.S. However, AWT would not meet the requirements of Part III of Rule 17-610, which governs irrigation ("direct contact") of edible food crops and requires Class I reliability for treatment which is not required for AWT. Section 403.086(4), F.S.; Rule 17-610.460 and 17-610.475, F.A.C. Adjacent land uses were a part of the permit review for this project required in Part II. Buffer restrictions provide protection from the sprayfield so that levels of deposition are negligible compared to those when spray irrigation is applied directly at the food crop site. Thus, by its decision to issue this permit, DER recognized that minimal aerosol drift is not the "direct contact" envisioned in Part III and that because the project did not pose a hazard to adjoining groves higher levels of treatment are not necessary. Aerosol drift from treated effluent will have no effect on human health due to contamination of honey or adverse effects on the Shreve's bees located near the proposed sprayfield. Natural enzymes in unpasteurized honey are hostile to bacteria. The Shreves have never experienced a problem with the existing forty acre sprayfield even though it is accessible to their bees and has been in the area as long as the bees have. Petitioners allege that the sprayfield will attract birds, creating an aviation hazard to airplanes using the grass airstrip owned by Petitioner, Parrish Properties. Mr. Parrish, who is a licensed pilot, asserted that water ponding on the site and the mowing operation will attract birds. Both the proposed sprayfield and the surrounding groves will be mowed and irrigated and thus will provide the same type of mixed grass and citrus tree habitat as presently found in the groves. Therefore, Petitioners are currently attracting the same type and number of birds to their groves as FCWC's proposed sprayfield will attract. FCWC's expert in botany and ornithology, Mr. Noel Wamer, observed no large birds at the site, the existing 40-acre sprayfield or the surrounding citrus groves. He did observe small birds such as northern cardinals, towhees, and warblers, typical of citrus grove habitats. Cattle egrets might also be expected in the groves and the proposed sprayfield, particularly during mowing operations. Wading birds would only be attracted if water remained on the site for approximately one week or more to allow development of aquatic organisms as a food source. Birds present on the proposed sprayfield are very unlikely to fly up and collide with planes. The grass airstrip is used infrequently, with only 12 landings in the past year. For a number of years Mr. Wamer has observed bird behavior at the Tallahassee sewage treatment plant sprayfields near the Tallahassee Airport. The one-half mile distance between the runway and sprayfields in Tallahassee is nearly the same as the distance between the Petitioners' grass airstrip and the site. Planes landing at the Tallahassee airport are at an altitude of between 500 and 600 feet over the sprayfields, the same height as predicted over the site. Regardless of the size of planes, the birds, primarily cattle egrets, do not react, but continue feeding or resting. Stormwater and Surface Water Management Activities. On April 3, 1991, FCWC submitted an application with DER to modify and operate the existing stormwater and surface water management system on the sprayfield site (MSSW system). The Notice of Intent to Issue the MSSW Permit was published in the Florida Today newspaper on July 27, 1991. Minor activities are proposed to improve the existing system: (1) culverts at the ends of swales will be cleaned to restore full flow capacity; (2) obstructions and excess vegetation will be removed from the collection ditches to restore their original flow lines; and (3) any depressions in the swales will be filled and regraded to attain a minimum swale bottom elevation of 20.2 feet above mean sea level. As asserted by DER's expert in surface water management, the stormwater discharges will not be a combination of stormwater and domestic waste sufficient to trigger review of stormwater under DER rules as required by Rule 40C-42.061(3), F.A.C. Considering all proof adduced, particularly that stormwater will be treated to applicable standards in the grassed swales, water quality will not be violated, and the post- development peak discharge will not exceed the pre-development peak discharge from the site, FCWC provided reasonable assurances that the proposed MSSW system would not be harmful to the water resources in the area and would not be inconsistent with the overall objectives of the district. Summary of Findings and Permit Conditions FCWC has established that the sprayfield, as proposed, will meet the applicable regulatory requirements for the sprayfield and MSSW permits. Included in the specific conditions attached to the notice of intent to issue the sprayfield construction permit is the requirement that the site be operated to preclude saturated ground conditions or ponding. (FCWC Exhibit #3, paragraph 13, specific conditions). Witnesses for the applicant described certain proposals to assure this condition is met, and those proposals should be incorporated into the condition. Those proposals include the cessation of spraying during a rain event and the installation of devices to automatically turn off the sprinklers when rain occurs, the cessation of spraying whenever the groundwater level is within four inches of the bottom of the swales, and the installation of ground water gauges to determine when this level is reached. In order to minimize aerosol drift, the applicant proposes to establish wind gauges indicating the direction and speed of wind at the site. It was suggested that spraying would cease when the wind reaches 20 miles an hour, and sprinklers should be positioned to avoid spraying the downwind perimeter of the site when drift is likely to occur. This condition should also be incorporated in the permit. If the operational adjustments cannot be made automatically it will be necessary to require that the plant be staffed at all times that the spray system is turned on, notwithstanding the minimum six hours, five days a week required in Rule 17-602.370, F.A.C. and referenced in the intent to issue. Engineering computations in the application rely on the assumption that the vegetation onsite will be harvested (mowed and removed). Since spray irrigation treatment of wastewater depends on renovation or removal of effluent by the soil vegetation system, periodic mowing and removal of the vegetation should also be included as a permit condition.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final order be entered issuing permits number DC05-194008 and MS05- 194894, with the additional conditions addressed in Finding of Fact paragraphs 60 and 61, above. DONE and RECOMMENDED this 27th day of May, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by Petitioners, Groves and Shreve: Rejected as unsupported by competent evidence (as to the allegation of irresponsible plant operation). 2.-4. Rejected as irrelevant. 5.-7. Addressed in Conclusions of Law. Rejected as irrelevant. Adopted in paragraph 9. 10.-11. Rejected as contrary to the weight of evidence as to "irrigation efficiency". 12.-13. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence and mischaracterization of the witness' testimony. Rejected as unnecessary. Rejected as statement of testimony, not finding of fact, which testimony is outweighed by other evidence. 17.-18. Adopted in paragraph 3. 19. Adopted in paragraph 28. 20.-21. Adopted in paragraph 8. 22.-23. Adopted in substance in paragraph 22. Rejected as contrary to the weight of evidence. Average annual application rate of .54 inches/week yields 28 inches a year. Rejected as unnecessary. Addressed in Conclusions of Law. 26.-29. Rejected as contrary to the weight of evidence. 30.-31. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 11. Adopted in paragraph 19. Addressed in paragraph 36; adopted in substance. 38.-39. Rejected as unnecessary. 40. Adopted in paragraph 31. 41.-47. Rejected as unnecessary, or contrary to the weight of evidence as to "irrigation efficiency". 48.-49. Rejected as cumulative and unnecessary. 50. Adopted in paragraph 34. 51.-52. Rejected as contrary to the weight of evidence. The grass will be mowed and removed. The "U" value was based on the grasses, not the citrus. 53. Rejected as contrary to the evidence, as to "unknown density and type". 54.-57. Rejected as unnecessary. Rejected as contrary to the evidence. Adopted in paragraph 7. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Rejected as unnecessary. 63.-64. Rejected as contrary to the weight of evidence. 65. Rejected as confusing, as to the term "unsuitable conditions". 66.-69. Rejected as contrary to the evidence. 70. Rejected as confusing. 71.-72. Rejected as unnecessary. 73.-74. Rejected as a mischaracterization of the witnesses' testimony. 75.-82. Rejected as unnecessary. Rejected as contrary to the weight of evidence. 84.-85. Rejected as unnecessary. 86.-87. Rejected as contrary to the evidence. 88.-89. Rejected as unnecessary. 90.-94. Rejected as contrary to the evidence. 95.-97. Rejected as unnecessary. 98.-99. Addressed in Conclusions of Law. 100.-103. Rejected as contrary to the weight of evidence. 104.-109. Rejected as a mischaracterization of the testimony or misunderstanding of the term "irrigation efficiency". 110.-112. Rejected as cumulative and unnecessary. 113.-114. Addressed in Conclusions of Law. Rejected as unnecessary. Addressed in Conclusions of Law. 117.-118. Rejected as irrelevant. Rejected as contrary to the law and evidence. Rejected as unnecessary. Adopted in paragraph 16 by implication. Rejected as unnecessary and misunderstanding of the testimony. Addressed in Conclusions of Law. 124.-126. Rejected as unnecessary. Rejected as contrary to the weight of evidence. Adopted by implication in paragraph 21. 129.-130. Rejected as unnecessary. 131. Rejected as contrary to the evidence. 132.-134. Rejected as unnecessary. 135.-138. Rejected as contrary to the evidence. 139.-141. Rejected as unnecessary. COPIES FURNISHED: Kenneth G. Oertel, Esquire M. Christopher Bryant, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. P. O. Box 6507 Tallahassee, FL 32314-6507 Harry A. Jones, Esquire EVANS, JONES & ABBOTT P.O. Box 2907 Titusville, FL 32781-2907 Kathleen Blizzard, Esquire Richard W. Moore, Esquire P.O. Box 6526 Tallahassee, FL 32314 Douglas MacLaughlin Asst. General Counsel Dept. of Environmental Regulation 2600 Blairstone Rd. Tallahassee, FL 32399 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue presented in this case is whether the Petitioner has the requisite experience necessary in order to qualify to take a Class A drinking water treatment plant operator certification exam.
Findings Of Fact On May 11, 1989, Petitioner, Albert Galambos, submitted an application to Respondent, Department of Environmental Regulation ("DER"), to take the prerequisite examination necessary for certification as a Class A drinking water treatment plant operator. On May 20, 1989, Helen Setchfield, Certification Officer for DER mailed to the Petitioner a Notice of Final Order of Denial of Petitioner's Application for Examination and Certification as a Class A drinking water treatment plant operator. The Notice of Final Order of Denial stated that Petitioner was ineligible to sit for the examination and/or was ineligible for certification as a Class A drinking water treatment plant operator because his "actual experience is in an occupation which does not qualify as actual experience as an operator of a treatment plant as defined in Section 17-16.03, Petitioner has worked at the Miami-Dade Water and Sewer Authority Department ("Authority") for 17 years. His current position is Water and Sewer Mechanical Operations Supervisor, a position he has held since 1983. This position entails actual onsite operational control of the equipment and mechanical processes of the Authority's water production plants and overseeing all maintenance of equipment at the Authority's three regional water treatment plants and the smaller interim plants, developing safety procedures for the operation of equipment, training plant personnel in the mechanical operation of the equipment, establishing maintenance schedules and maintaining those records, and taking samples as necessary to determine proper equipment functioning, performing or overseeing the loading of chemicals and the connecting of chlorine cylinders, and the recharging of these systems. He assists the certified operators in remedial action if some aspect of the plant is not functioning properly, but he has no supervisory authority over the certified operators. Petitioner is held responsible by the Division Director for the smooth running of the equipment at the Authority's water treatment plants. He prepares reports, logs and records regarding the mechanical equipment and operations of the plant. Petitioner supervises and manages 36 employees who are mechanics, electricians and laborers. From 1979 to 1983, Petitioner was a plant maintenance foreman for the Authority. This position included responsibility for supervising and performing skilled mechanical tasks on a variety of mechanical equipment at the water plants. From 1976 to 1979, Petitioner was a plant mechanic at the Authority. This position was skilled work at the journeyman level in the installation, repair, and maintenance of mechanical equipment at the water plants. Between 1974 and 1976, Petitioner worked in an unclassified position doing what a diesel plant operator does at the Authority. This position involved responsibility for the operation of large diesel engines used to drive large pumps and related equipment. From 1972 and 1974, Petitioner was a semiskilled laborer with the Authority. This position involved heavy manual work requiring limited skills in various maintenance tasks. Petitioner has never served as a drinking water treatment plant operator nor been licensed as a drinking water treatment plant operator at any classification. Petitioner has not previously applied for, nor obtained any water treatment plant operator certification. Petitioner has successfully completed the required course work for Class A operator certification. Petitioner is a high school graduate and has successfully completed the required coursework for certification. These activities yield three years and four months of constructive experience towards certification. Petitioner's experience prior to 1983 did not constitute actual experience because in those positions, Petitioner did not have operational control of a drinking water treatment plant. Even if Petitioner's current position was accepted as "actual experience" (a determination which is specifically not resolved here,) the combination of Petitioner's constructive and actual experience would be less than the twelve years of experience required for certification as a Class A operator. Thus, Petitioner has failed to prove that he meets the experience requirement necessary for certification as a Class A drinking water treatment plant operator. Petitioner's current position is supervisory and he has a great deal of maintenance experience gained through his various positions at the Authority. Petitioner's current position affords him the opportunity to learn about many aspects of operating a treatment plant efficiently by conducting inspections of the treatment plant processes, monitoring of the treatment plant processes, and adjusting the treatment plant processes. However, the evidence did not establish that Petitioner manages the treatment plant processes as required to constitute actual experience under the existing rules. It is unclear from the evidence presented whether Petitioner's day-to- day onsite experience at the plants constitutes the actual operational control of a water treatment plant. It would appear that Petitioner's current position does not allow him experience in managing the overall treatment process. However, further evidence and/or a better understanding of Petitioner's job responsibilities could alter this observation. In view of the disposition reached in this case, that issue need not be addressed further at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation issue a final order denying Petitioner's application of May 10, 1989, for certification as a Class A drinking water treatment plant operator. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of January 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990.
