The Issue The issue to be resolved in this proceeding concerns whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit in consideration of the statutes and rules relating to approval of permits cited and discussed herein, or whether they are entitled to a variance from the strict requirements of those statutes and rules so as to allow the installation of the OSDS on their property near the Suwannee River. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioners purchased real property located in Levy County, Florida, in 1967. That property is located in the unincorporated community of "Fowlers Bluff" on the east bank of the Suwannee River. The property is more particularly described as the west one-half of Lot 13, and the east three- quarters of Lot 14, Treasure Camp Addition, Unit 3. The lot in question is approximately 100 feet by 125 feet by 197 feet in size. There is adequate unobstructed area available for the subject system's installation, according to Respondent's Exhibit NO. 1 in evidence. The lot is part of a subdivision which was platted prior to 1956. The subject lot has available a potable water source from the public water system. Consequently, the lot is of sufficient size to meet the quarter-acre minimum requirement for the installation of septic tank and drain-field systems in situations where lots have potable water available from a public water system, which is the case in this circumstance. The effective soil depth at the drain-field installation site is greater than 42 inches below the bottom surface of the proposed drain-field trench or absorption bed location. That is, 72 inches of sand, which is a "slight limited soil" and appropriate for such installations, exist at the site. The wet season water table was shown to exist at 26 inches below the grade level. The wet season water table, pursuant to Rule 10D-6.047(2) Florida Administrative Code, must be at least 24 inches below the bottom surface of the drain-field trench or absorption bed. Consequently, the wet season water table in this situation is not sufficient in depth for the proposed installation to meet this provision of the Respondent's rules. The Petitioners seek to gain approval for a system to serve a single- family residence of approximately 2,000 heated and cooled square feet, with a "standard" 350 gallons per day sewage flow. The residence would contain three bedrooms, as presently envisioned. The Petitioners' Exhibit NO. 1 establishes a benchmark elevation for the grade level of the proposed OSDS installation site of 7.48 feet above mean sea level ("MSL"). The actual grade elevation is 0.8 feet below that benchmark elevation. That is, the elevation of the grade of the property is 6.72 feet above MSL at the proposed installation site., The ten-year flood elevation for the proposed installation site, however, is 9 feet above MSL, as verified by a report prepared by the Suwannee River Water Management District, admitted into evidence and which was submitted to the Respondent by the Petitioners in the application process. The property also lies within the regulatory floodway of the Suwannee R for purposes of Rule 10D-6.047(6), Florida Administrative Code. Testimony by Mr. Parker, as well as the Respondent's evidence through Mr. May, establishes that the property in the past has had approximately 30 inches of fill placed on it. Because of this, the grade level elevation is in fairly-close proximity to the ten-year flood elevation and because of the prevailing slight limited soil type down to a depth of six feet, the property was shown to be generally amenable to installation of a mounded septic tank and drain-field disposal system, which mounding could raise the property so that the bottom of the drain-field trench or absorption bed would not be within the ten- year flood elevation. As Mr. May indicated by letter dated March 1, 1990 to Mr. Parker, the lot could be filled utilizing slight limited soil so that a mound to contain the septic tank and drain field of no more than the required 36 inches, pursuant to Rule 10D-06.0493(b), Florida Administrative Code, might be utilized. That letter, in evidence, also indicates that if the lot, or a portion of it, is filled, the fill shall extend a minimum of 20 feet in all directions beyond the perimeter of the mound base. The lot was shown to be of sufficient size to accommodate such a perimeter area of fill. In that same letter, Mr. May advised Mr. Parker that he had the right to request a variance from the provisions of Chapter 10D-6 Florida Administrative Code, since his property, in Mr. May's view, did not meet the criteria in that regulatory chapter for the issuance of an actual permit. The record does not reflect that an actual variance application had been filed, however. It would thus seem that this property is amenable to a reasonable alternative solution to a conventional, subterranean septic tank and drain-field system by the use of the "mounding process". That alternative, however, pursuant to Rule 10D-6.047(6), Florida Administrative Code, would require the certification of a registered professional engineer to the effect that the installation of such a mound could be done ,in such a way as not to raise the "base flood" level. This is because the property lies within the regulatory floodway of the ,Suwannee River; and under the rule section cited last above, a `certification must be made that the base flood level will not be raised by such a mounded system installation for property lying in the regulatory floodway. The Petitioners adduced no such engineering testimony or evidence to establish that if the system were installed with the mounding process, the base flood level would not be raised. In addition to the evidence culminating in the above Findings of Fact, the Petitioners offered general testimony to the effect that they had purchased the property in question for purposes of both having a "retirement rest egg" and a place to live should they choose to live on the property. The Petitioners established that they, like numerous other OSDS permit applicants in similar proceedings, are undergoing a hardship because they purchased the property for residential purposes or for re-sale for residential purposes and cannot construct a residence and live on the property or sell it for that purpose because of the inability to obtain a permit. The Petitioners' proof, in terms of the variance criteria noted below, is inadequate to show that there are no alternative systems available which will adequately dispose of and treat the sewage to be expected, nor did the Petitioners establish that installation of the system presently proposed would only constitute a minor deviation from the requirements of the Respondent's OSDS permitting rules, in terms of having no adverse effect on the health of the Petitioners, the general public, or upon the surface or ground waters involved in the vicinity of the site. Although the Petitioners did not formally apply for a variance, no adequate proof in these two particulars was offered so as to justify the grant of a variance; however, it was established that the property was platted prior to 1972 for purposes of the relaxed consideration embodied in the variance rule and statute for this circumstance. The Respondent now asserts, however, that the Petitioners should not be accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten- year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.
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 a Final Order be entered denying the application for the subject permit, without prejudice to a later application for a variance or a later application for an OSDS permit based upon additional and changed facts and circumstances. DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3695 The Petitioners submitted no proposed findings of fact. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Arnold G. Parker P.O. Box 467 Chiefland, Florida 32626 Frances S. Childers, Esquire Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, Florida 32609
The Issue The issue presented here concerns the entitlement of the Petitioner, Turtle Lake Land Trust, to be permitted by the Respondent, State of Florida, Department of Environmental Regulation, to dredge approximately 600,000 cubic yards of material in the area known as Turtle Lake, which is located near Jackson street and Fairfield Drive, Pensacola, Florida. The purpose of this project is to create a manmade lake. The dredged material world be placed on the lake shore.
Findings Of Fact On May 9, 1979, the Respondent, State of Florida, Department of Environmental Regulation, received an environmental permit application from the Petitioner, Turtle Lake Land Trust. The details of that permit application were contained in a form provided by the Department together with attachments to that form. A copy of this permit application may be found as the Respondent's Exhibit No. 2 admitted into evidence. By this application, Turtle Lake requested that it be allowed to dredge approximately 600,000 cubic yards of material in an area known as Turtle Lake, which is located near Jackson Street and Fairfield Drive, Pensacola, Florida. The purpose of the excavation was to establish a manmade lake approximately twelve (12) feet in depth in an area which is a cypress swamp and subject to periodic inundation by water. The materials removed from the dredging would be deposited on the shores of the lake, effectively raising the ground elevation at lakeside. The dredging would intersect the groundwater on the project site. The project is part of an overall development which would involve construction of residential housing and commercial facilities in the vicinity of the lake, with the lake to be used for fishing, sailing and other water recreation. The proposal of the Petitioner was reviewed by the Department and certain timely additional requests were made from the Department to the applicant to provide information necessary to evaluate the request for permit. The exhibits dealing with the request for additional information and responses to those requests may be found as Respondent's Exhibits 3, 5, 8, 9, 10 and 11 admitted into evidence. The Department solicited comments from the Florida Game and Freshwater Fish Commission on this subject and the comments were provided by correspondence from the Executive Director of the Commission. These comments may be found in Respondent's Exhibit No. 6 admitted into evidence, which is a copy of those remarks. The Department of Environmental Regulation, in keeping with the provision Subsection 253.124(3), Florida Statutes, performed a biological survey of the project site and submitted it to the Board of County Commissioners of Escambia County, Florida, for the Board's action. A copy of the survey may be found as Respondent's Exhibit No. 7 admitted into evidence. The Escambia County Board of County Commissioners, by Resolution dated October 11, 1979, approved the project subject to action by the Respondent and the United States Corps of Engineers. A copy of this Resolution may be found as the Respondent's Exhibit No. 12 admitted into evidence. Upon consideration of the permit request, the Department of Environmental Regulation notified the applicant of its intent to deny the permit request. This Letter of Intent to Deny was issued on January 31, 1980, and a copy of it may be found as Respondent's Exhibit No. 13 admitted into evidence. This matter has been presented for consideration before the State of Florida, Division of Administrative Hearings, upon referral by the Respondent of the original Petition and has been heard after opportunity for and amendment to that Petition. The hearing was conducted on September 23, 1980, as scheduled, in keeping with the provisions of Subsection 120.57(1), Florida Statutes. The project site is located in a cypress swamp which has also been referred to as a cypress head. The southern boundary of the project site east of Fairfield Drive has an impoundment area which is fringed by pine trees and other upland species, to include gallberry, southern brackin, blackberry and oak. There is within this area aquatic vegetation dominated by Eleocharis sp. and fragrant waterlily (nymphaea odorata). The cypress head itself, which is bounded on the west by Fairfield Drive, consists of cypress, blackgum, sweetbay and cinnamon fern, fragrant waterlily and pickerel weed (pontederia lanceolata). Within the zone of the cypress head standing water may be found, the dimensions and depths of which were not established at the hearing in sufficient detail to allow further comment in these findings. Fairfield Drive serves to contain the water found in the Turtle Lake swamp on the eastern side of that roadway; however, there is an exit from the cypress head under Fairfield Drive by a series of three 24-inch culverts which connect the manmade ditches. These ditches flow into Bayou Marcus and Bayou Marcus Creek and eventually into Perdido Bay. This water connection is a direct connection and Bayou Marcus, Bayou Marcus Creek and Perdido Bay are waters of the State. Immediately adjacent to Fairfield Drive east of that roadway in the vicinity the culverts water may be found standing and could be navigated and this may be seen by Respondent's Composite Exhibit No. 14. This water which although subject to navigation wad not identified sufficiently at the hearing to establish its length and breadth. The depth was two to three feet. This water adjacent to Fairfield Drive is not within that area of the proposed excavation. At present, the storm water runoff from the Forte subdivision located to the north and east of the project site, enters the cypress head swamp and at times of periodic inundation, this storm water runoff arrives at the area of the culverts into the ditch system and into Bayou Marcus, Bayou Marcus Creek and Perdido Bay. The oils and greases, fertilizers, pesticides, nutrients and other forms of pollutants which make up the storm water constituents are somewhat filtered by the cypress head swamp as it now exists, prior to the entry of those materials into the culvert area adjacent to Fairfield Drive and from there into the transport mechanism constituted of the ditches, bayou, creek and bay. If the project is built out, the dredging will remove those flora mentioned herein and the fauna which inhabit this swamp and will remove the cypress head from future use by the fauna which normally inhabit this form of environment. It would also take away the natural filtration to be provided by the swamp in the way of removing undesirable storm water constituents from the residential runoff in Forte subdivision and the proposed development associated with the lake construction. The removal of the swamp would destroy the capacity to convert raw nutrients into usable sources of food for indigenous dawn stream organisms. As can be seen in the Petitioner's Exhibit No. 1, the existing water table at the site is approximately 23 feet and ordinary highwater elevation has been measured at 24 feet with an existing grade of 21 feet. If the lake were excavated, the lake would show a water table with an elevation of 20 feet. The berm or dykes around the lake would have an elevation of 24 feet. Storm water from the current subdivision and the residential and commercial build-out associated with the project in question would be carried through underground storm water piping into four holding areas which have been referred to by the applicant as drainage corridors and retention area. These areas are separated from the lake by siltation screens and will serve the function of filtering out some storm water constituents which are solid particulates. The constituents which have been dissolved will flow through the siltation screen devices and into the lake proper. When the lake rises to a depth of 23 feet, the excess water will he transported through a proposed ditch into the area of the three culverts under Fairfield Drive and via those manmade conveyances into Bayou Marcus, Bayou Marcus Creek and Perdido Bay. Those storm water constituents such as oils and greases, fertilizers, pesticides, nutrients and other forms of pollutants which have not settled or been filtered will be transported through this system and deposited into waters of the State. In this connection, the drainage corridor and retention areas are not designed for long-term retention; they are primarily for short-term detention, depending on the amount of loading from the storm water runoff. The only pre-treatment associated with the storm water runoff is that filtration that occurs in the drainage corridor and retention area. (There was some discussion of possible gravel filters in conjunction with the drainage corridor and retention area but they were not part of the plan submitted to the Department in the process of project review.) In addition to the introduction of the storm water contaminants into the waters adjacent to Fairfield Drive at the area of the culverts and the bayou, creek and bay, these contaminants will be introduced into the ground water in the lake proper Although some increase in retention of storm water runoff may be expected, if the project were built, there would be a significant increase in the introduction of dissolved contaminants into waters over which the Respondent has jurisdiction, i.e., Bayou Marcus, Bayou Marcus Creek and Perdido Bay. Increases in these areas will occur in biochemical oxygen demand and undesirable nutrient and dissolved oxygen levels will decrease if this project is constructed. In association with this change, an increase in nuisance species would occur. The Petitioner has failed to do any background sampling to establish the natural background levels of the aforementioned conditions in waters of the State in order to identify whether water quality in the receiving waters would be degraded from existing conditions to the extent of violating the Department's water quality criteria.
Recommendation Based upon a full consideration of the facts as presented and the Conclusions of Law reached in this matter, it is RECOMMENDED that the Secretary of the State of Florida, Department of Environmental Regulation, deny the Petitioner a dredge and fill permit pursuant to Rule 17-4.28, Florida Administrative Code; a construction, operating and maintenance permit pursuant to Section 403.087, Florida Statutes; a ground water permit in accordance with Rules 17-3.071, Florida Administrative Code, and 17- 4.245, Florida Administrative Code; and be it further RECOMMENDED that the Secretary take no further action to require a permit(s) as might be indicated in keeping with Chapter 253, Florida statutes. 1/ DONE AND ENTERED this 22nd day of October, 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1980.
The Issue Whether or not Petitioners' application for an on-site sewage disposal system (OSDS) permit should be granted.
Findings Of Fact Petitioners, Paula and David Caywood, are the owners of Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. The subject lot is situated within the ten year flood plain of the Suwannee River Basin. On August 13, 1990, Petitioners filed an application with Respondent to install an OSDS to service a two-bedroom home which they desired to place on the subject lot. As an attachment to their OSDS application, Petitioners introduced a copy of a survey of their lot which was prepared by Walton F. Poppell, a Florida registered land surveyor who holds registration number 2940. The ground elevation for the ten year flood plain for the subject area where Petitioners propose to install their OSDS is 68.0 ft. A review of the land survey presented by Petitioners indicate that the proposed OSDS would be at a ground elevation of 63.8 ft. and when completed would be placed at a ground level of 65.64 ft. or 2.36 ft. below the elevation of the ten year flood plain. Although the Petitioners lot is not subject to frequent flooding, since the surface grade is beneath the ten year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten year flood elevation. Petitioners have not applied for a variance to install their OSDS within the ten year flood plain of the Suwannee River Basin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order denying Petitioners application to install an OSDS to service a two-bedroom home on Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February, 1991. COPIES FURNISHED: David and Paula Caywood 9320 Horizon Drive Springhill, Florida 34608 John L. Pearce, Esquire HRS District II Legal Office 2639 N. Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Excavated is entitled to an MSSW permit pursuant to Chapter 373, F.S., and Chapter 40C-4, F.A.C., for the construction of a borrow pit and, if so, what if any conditions should be imposed on the permit.
Findings Of Fact The Parties Petitioner CROP is a Florida corporation. "CROP" is an acronym for the Committee to Resist Oppressive Politicians. Petitioners Geneva Defense Association and Save Our St. Johns are subcommittees of CROP. Petitioner Crabtree, who resides in Geneva, Florida, is chair of CROP and a member of the subcommittees. Petitioner Crabtree obtains his residential potable water from the Mullet Lake Water Association, which has employed Petitioner Crabtree as its water plant manager. The principal well of the Mullet Lake Water Association, which draws from the Geneva bubble described below, is about 500 feet southeast of the subject site. Respondents Veigle and Excavated Products (Applicant) have requested Respondent St. Johns River Water Management District (District) to issue a permit for the management and storage of surface waters (MSSW). Applicant proposes to excavate a borrow pit in northeast Seminole County about three miles south of the St. Johns River, three miles west of Lake Harney, 1.5 miles east of Lake Jessup, and four miles north of the Econlockhatchee River. The irregularly shaped parcel, which is about one mile northwest of Geneva, is bounded on the north and east by State Road 46 and the south by Cochran Road. Hydrogeology of Region and Site The parcel overlies a 22-square mile freshwater lens in the Upper Floridan aquifer1/ known as the Geneva bubble. The groundwater in the bubble contains chloride concentrations of less than 250 mg/l. The bubble, which is about 350 feet thick in the center of its recharge area, is surrounded by brackish relict seawater. The bubble's 15-square mile recharge area is marked by land elevations of at least 25 feet.2/ The subject site is situated just inside the northwest boundary of the recharge area. The Geneva bubble is dependent upon freshwater recharge from local rainfall, which flushes out ancient seawater from the Floridan aquifer. Greater recharge takes place at locally higher land elevations, which rest on more permeable sediments. A USGS study, "Hydrogeology in the Area of a Freshwater Lens in the Floridan Aquifer System, Northeast Seminole County, Florida," prepared by G. G. Phelps and K. P. Rohrer and published in 1987, describes the recharge process as follows: The Geneva freshwater lens is a result of local recharge that percolates downward from the surficial aquifer to the Floridan. Recharge occurs when water levels in the surficial aquifer are higher than the water levels in the Floridan (a downward gradient exists). The area enclosed by the 25-foot altitude contour . . . is where most of the recharge occurs. . . . In some areas of lower topography3/ the gradient is upward (discharge areas) whereas in other areas the gradient is downward, but the head difference between the surficial aquifer and Floridan aquifer system is slight and little recharge takes place. At [one] site, the vertical hydraulic gradient changes direction seasonally--upward during the dry season and downward during the wet season. * * * The water level or head difference between the two aquifers is not the only factor controlling recharge. Other important factors are hydraulic conductivity and thickness of the intermediate confining unit. The confining unit must be thin and permeable enough to allow appreciable recharge to the upper part of the Floridan. CROP Exhibit 44, page 20. The relationship of current topography to the Geneva bubble is underscored by the proximity of the bubble to the Geneva Hill. Separated by the St. Johns River from the Deland Ridge, Crescent City Ridge, and Palatka Hill to the north, the Geneva Hill and these three other geological formations run a distance of about 70 miles parallel to, and about 25 miles inland of, the current Atlantic shoreline. This ridgeline, which forms part of the Wicomico Shoreline, was probably formed about 100,000 years ago when sea level was about 100 feet higher than present. Local land surfaces less than 25 feet elevation were the most recently covered by seawater, which may explain the brackish water contained in the Floridan aquifer under these lower elevations. The hydrogeology of the region, including the site, consists of the surficial aquifer, which overlies the intermediate confining unit consisting of Miocene sediments. Beneath these confining sediments is the Floridan aquifer consisting of permeable limestone and dolomite beds. The water in the Floridan aquifer travels northeastward from prime recharge areas to discharge in areas along the St. Johns River. In areas of high land elevations (over 25 feet) centered around Geneva, the confining sediments are sandy and thus leaky. By contrast, the confining unit in lower areas may be relatively impermeable due to clay layers as thick as 20 feet. The high land elevations, where the Geneva bubble is recharged, feature a downward hydraulic gradient from the surficial aquifer to the Floridan aquifer and the absence of thick clay layers. Shallow lakes near the subject site replenish the Geneva bubble by collecting water that slowly percolates through the surficial aquifer to the Floridan aquifer. The rate of recharge may be affected by the fact that the water elevations of these lakes may vary dramatically from year to year and from wet- season to dry-season. On the other hand, the potentiometric surface water elevation of the Floridan aquifer in this area remains fairly constant over the long-term, although it varies about 5 feet seasonally. The preservation of the boundary between the freshwater lens and surrounding brackish water requires that the bubble receive sufficient freshwater recharge so that it can maintain an annual groundwater outflow of at least 10 inches annually. A year of little rainfall, such as 1981, may reduce the freshwater outflow to half the necessary amount. If the deficiency exists for a "number of years," the equilibrium between the freshwater and brackish water would be disturbed. CROP Exhibit 44, page 68. Groundwater withdrawals from the Geneva bubble total less than 5% of the bubble's average annual recharge. Although the rate of well pumping is increasing, withdrawals will not significantly exceed this percentage for several years. However, the freshwater outflow and recharge are finely balanced prior to consideration of the impact of withdrawals. Calculating 30-year averages, the USGS study discloses that the recharge available to the Geneva bubble is 10.8 inches annually and the groundwater outflow, exclusive of withdrawals, is 10.4 inches annually. For the years studied, 1981-82, the withdrawals totalled only 0.37 inches, so there was no significant change in groundwater storage. CROP exhibit 44, page 67. The critical balance between recharge and groundwater outflow for the Geneva bubble will become even finer with projected increases in withdrawals. The USGS study reports that, in 1981, total pumpage--all reasonably assumed to be from the Floridan aquifer--was 0.44 million gallons per day (MGD). This translates to 0.37 inches when distributed over the 22- square mile freshwater lens. The pumpage volumes were: Mullet Lake Water Association--0.02 MGD; Lake Harney Water Association4/--0.03 MGD; individual wells--0.18 MGD; and agriculture--0.21 MGD. CROP Exhibit 44, pages 65-66. The 1989 average daily flow for Mullet Lake and Lake Harney were 0.032 and 0.040 MGD, respectively, for a total of 0.072 MGD. The two utilities are predicted to pump, by 1996, 0.138 and 0.065 MGD, respectively, for a total of 0.203 MGD. CROP Exhibit 10, page 314. Additionally, Seminole Woods is pumping groundwater from the Geneva bubble a little over one mile southeast of the subject site. CROP Exhibit 10, page 63. The withdrawals attributable to Seminole Woods are 0.028 MGD in 1989 and 0.131 MGD in 1996. CROP Exhibit 10, page 314. Even assuming a constant pumpage rate for individual and agricultural wells, the total pumpage of the Geneva bubble in 1989 was 0.49 MGD, which is an increase of 11% in eight years. This translates to an annual withdrawal of 0.41 inches when distributed over the 22-square mile freshwater lens. By 1996, the total pumpage of the bubble, again assuming no change for individual and agricultural wells, will be about 0.724 MGD, which is an increase of about 45% in seven years. This translates to an annual withdrawal of 0.6 inches when distributed over the entire freshwater lens. Application for MSSW Permit By Individual Permit Application filed May 14, 1991, James K. Froehlich applied for an MSSW permit. The application describes the project as a borrow pit that, upon completion, would become part of a single family residential development. Following a request for further information, Mr. Froehlich's engineers, the Civil Design Group, provided additional information by response dated September 13, 1991. An accompanying letter dated September 12, 1991, discloses that the owner and applicant is now Excavated Products, which purchased the bulk of the property. The September 12 letter states that the project, now known as Froehlich Lake Estates, would produce no offsite discharge. The letter assures that the project would result in no dewatering of wetlands. The September 12 letter indicates that readings had been taken from four piezometers from April to September, 1991. The letter reports: As noted, the water table is fairly flat and at approximate elevation of +20.5 feet N.G.V.D. . . . Using this most recent site- specific data, we therefore estimate that the normal seasonal high water level of the proposed lake will be at approximate elevation of +20.5 feet N.G.V.D. This estimate supersedes the earlier estimate of +24.0 feet N.G.V.D. The estimated seasonal fluctuation of the water level is expected to be approximately 3 feet. There- fore, we will expect the water table to fluctuate from elevation +17.5 to +20.5 N.G.V.D. during the course of the year. Applicant Exhibit 2, page 3. The September 12 letter identifies only two culverts on the property. Running under State Road 46, both pipes are completely plugged with silty sediment. The letter indicates that none of the wetlands in the project area has any offsite connections, such as through wetlands vegetation or ditches. The September 12 letter represents that the project would have "no connection to Waters of the State." Applicant Exhibit 2, page 11. The only wetland upon which the project would encroach is the 0.24-acre Wetland E, as identified on the map described below. No mitigation is proposed because of the limited size of Wetland E and the fact that no other encroachments would take place. In response to a request for reasonable assurance that the construction of the borrow pit would not affect adversely the hydrologic functions of the wetlands in the area, the September 12 letter states: As mentioned previously, the estimated seasonal high water table elevation is +20.5 feet N.G.V.D. In wetlands adjacent to the lake at higher elevations, a clay core will be installed to hydrologically isolate the wetlands from the lower elevation lake. The details of the clay core will be submitted when additional borings are done along the wetland perimeter. Applicant Exhibit 2, page 9. The September 12 letter acknowledges that the Applicant does not intend to create a littoral zone or marsh creation. Onsite muck would be stockpiled and used to create the 6:1 slopes from the edge of the pit to about 3.5 feet below anticipated pool elevation. Applicant does not propose dumping offsite muck onsite. The Narrative portion of the September 13 response materials indicates that the normal high water was reduced from 24.0 to 20.5 feet based on new information, and the bottom of the excavation was raised from -20 to -17 feet to provide at least 15 feet of protection for the Floridan aquifer. Additionally, the Narrative notes that three groundwater monitoring wells would be constructed (one upgradient and two downgradient) to test monthly for level of groundwater, chloride, turbidity, Ph, and hydrocarbons. The hydrogeological information contained in the September 12 letter and September 13 response is largely derived from Jammal & Associates (Jammal). Jammal has studied the site from early 1989 through 1991. The September 13 response materials include a Jammal report dated April 17, 1991, concerning the location of the top of the limestone layer. Based on analysis of five test borings, the Jammal April 17 report determines that the top of the limestone layer and, thus, the Floridan aquifer is nearly flat on the site and ranges in depth from about -32 to -33.5 feet. The Jammal April 17 report concludes that the then- proposed excavation depth of -20 feet would leave a soils thickness of 12 to 16.5 feet between the bottom of the borrow pit and top of the limestone layer marking the top of the Floridan aquifer. Following another request for further information, Applicant provided additional information by response dated October 25, 1991, from the Civil Design Group, Inc. The October 25 response materials contain a new application from James P. Veigle, President. The new description of the project is limited to the construction of a borrow pit to yield fill for the construction of an expressway. The October 25 response materials include several diagrams and maps. All but one of these diagrams and maps are incorporated into the permit approved by the St. Johns River Water Management District (District).5/ The October 25 response materials include a post- development drainage map of the site. The map reports that the project site totals 111.3 acres, including a 36.5-acre proposed lake within a 55.2-acre borrow pit area, as measured from the dry top of the slope. The post-development drainage map depicts the site's wetlands, which total 22.6 acres. The wetlands and proposed pit are depicted in Appendix B.6/ Wetland A, which consists of 9.8 acres, is slightly west and north of the center of the site. Wetland B, which is on the north boundary of the project boundary just north of Wetland A, consists of only 0.67 acres. Wetland C, which is at the northernmost tip of the subject parcel, consists of 1.1 acres and abuts State Road 46. About 500-600 feet south and east of Wetland C is Wetland D, which also abuts State Road 46. Wetland D consists of 1.6 acres. Wetland E, which is just south of Wetland D, is slightly east of the center of the project. Wetland E, which would be excavated as part of the borrow pit, consists of 0.24 acre. Wetland F is in the southcentral part of the site and consists of 6.75 acres. Wetland G is south of Wetland F. Consisting of 2.64 acres, Wetland G was probably bisected at the property line by the construction of Cochran Road. The post-development drainage map contains a table describing each of the wetlands, which are all classified as isolated herbaceous wetlands. The plant species for Wetland A are willows, primrose willows, dogfennel, and blackberry with one acre of sawgrass, pickerelweed, and associated panicum grasses. Wetland B hosts sawgrass and panicum. Wetlands C and D are characterized by panicum and sedges with bay trees around the perimeter. Wetland E has panicum and primrose willow. Wetland F features maidencane, pickerelweed, sedges, juncus, bullrush, and dogfennel. Wetland G has panicum, sedges, and dogfennel with young cypress trees. The post-development drainage map indicates that significant areas of relatively land surface high elevations of about 50 feet exist immediately west of the north and west boundary of the site and immediately east of the south and east boundary of the site. The site itself features varying land surface elevations with greater slopes in the southeast and northwest corners. The post-development drainage map shows the direction of overland drainage. As at present, the site would continue to receive runoff at its northwest corner. The post-development drainage map represents that the proposed method of excavation is to dry mine until the water table is encountered and then to proceed deeper with drag lines or hydraulic dredging to the final proposed depth. Regardless of the method, "[n]o water will be withdrawn from the excavation pit or circulated. Water control berms will not be necessary as the depth of the water table will be below the rim of the excavation area at all times." Applicant Exhibit 3, Sheet 2 of 3, General Note 13. The post-development drainage map describes the groundwater monitoring wells, which would monitor the surficial aquifer. One well would be upgradient and two wells would be downgradient of the excavation area. Samples would be taken monthly and reported quarterly to the District and Seminole County for water level, chloride, turbidity, Ph, and hydrocarbons. Monitoring would begin 45 days prior to excavation below the water table. Applicant Exhibit 3, Sheet 2 of 3, General Note 19. The proposed monitoring well locations are shown on the post- development drainage map. MW-1 is at the 29-foot contour just off the right-of- way for Cochran Road at the southern tip of the property. MW-1 is within 100 feet west of Wetland G. MW-2 is between the 25- and 26-foot contours less than 50 feet south of Wetland C. MW-3 is between the 42- and 43- foot contours at the southeast corner of the site. MW-3 is about 500 feet east of Wetland F and 500 feet northeast of Wetland G.7/ The post-development drainage map shows that the slope of the pit would be 6:1 (e.g., one foot deep per six feet parallel to land surface) down to 3.5 feet below anticipated water level. At 17 feet elevation, the slope would steepen to 2:1. The map indicates that normal water level for the pit would be 20.5 feet. The October 25 response materials also include a cross-section diagram of the borrow pit. The cross-section shows the bottom of the pit at -17 feet, which means that the water depth of the pit would be 37.5 feet deep if the stabilized pool elevation is 20.5 feet. The cross-section depicts silt fences placed on the boundary of each wetland around which the pit would be excavated: Wetlands A, D, F, and G (except where no excavation would take place at the edge of Wetland G nearest Cochran Road and the edge of Wetland D nearest State Road 46). Except for the side of Wetland D facing the pit, the pit would be excavated to within 10 feet of each of the above-described wetlands boundaries facing the excavation. The October 25 response materials include an additional discussion of groundwater management prepared by Jammal. The report, which is dated October 14, 1991, restates the projection that the wet season pool elevation of the excavated pit would stabilize at about 20.5 feet elevation. The Jammal October 14 report observes that the pool might stabilize at a higher elevation during construction. The uncertainty as to the stabilized wet season water elevation of the filled pit is due to a number of factors set forth in the Jammal October 14 report. These include: The estimated seasonal high groundwater table elevation around the perimeter of the pond in the post-development condition. Potential for lateral groundwater inflow to and outflow from the pond from the surrounding aquifer. This potential is related to the upgradient/downgradient ambient seasonal high water table elevation, upgradient watershed, aquifer transmissivity, and hydraulic gradient upstream and downstream of the pond. * * * Increase in vertical groundwater inflow into or out of the pond as a result of reducing the thickness of clastic sediments between the water table aquifer and the subjacent aquifer (i.e., the intermediate aquifer of Floridan aquifer). Volume of stormwater entering the pond and rate of dissipation of stormwater via natural infiltration into the water table aquifer or filtration through underdrains or similar structures. Net of direct precipitation on the pool surface minus lake evaporation for the normal rainy season. Applicant Exhibit 3, Jammal report, page 1. If, during excavation, the pool were to stabilize at a higher elevation, the Jammal October 14 report recommends a minimum berm elevation of 25 feet to ensure that the borrow pit would not discharge into the wetlands. Ongoing monitoring would determine if a higher berm were needed.8/ The Jammal October 14 report does not address the possibility of a lower stabilized pool elevation for the filled pit. The Jammal October 14 report notes that water withdrawn during the startup dewatering would be contained onsite in a settling basin to allow infiltration back into the surficial aquifer. According to the report, the sandy soils in the area are very permeable, and rainfall would quickly infiltrate the ground surface before reaching the excavation. The discussion of the groundwater drawdown impacts in the Jammal October 14 report is dependent upon the projections of pool elevations of the pit during dredging and upon completion. The discussion of groundwater drawdown uses a 15- foot potentiometric surface of the Upper Floridan aquifer at the site. The Jammal October 14 report warns that reducing the water level in the pit below this elevation for a sustained period "may result in upward flow from the sensitive freshwater bubble in the Floridan aquifer." Applicant Exhibit 3, Jammal report, page 5. The Jammal October 14 report deals with the potential upwelling problem by noting that the normal seasonal high water elevation in the pit is projected to be about 20.5 feet. Based on the excavation process proposed, the Jammal October 14 report does not anticipate water levels falling below 17 feet. In any event, the Jammal October 14 report assures that the water level in the pit will be monitored "to ensure that no upward flow from the Floridan Aquifer is induced." Applicant Exhibit 3, Jammal report, page 5. The Jammal October 14 report states that the excavation will reduce the thickness of the sediments separating the water table aquifer from the Floridan aquifer by 37 feet, from 52 feet to 15 feet.9/ The 15-foot thickness of clastic sediments overlaying the limestones of the Floridan aquifer is "adequate for water quality treatment." Applicant Exhibit 3, Jammal report, page 5. But the 70% reduction in original thickness results in an increased downward gradient from the water table to the Floridan aquifer. The ensuing increase in recharge to the Floridan aquifer is "not detrimental," according to the Jammal October 14 report. However, the stabilized pool elevation may be reduced if the "magnitude of the upgradient shallow aquifer groundwater feed [into the filled pit] is not adequate to compensate for the increased vertical recharge within the excavation." The report continues: A normal pool elevation which stabilizes significantly below the pre-development groundwater table can affect the hydroperiods of the adjacent wetlands. Wetlands adjacent to the proposed excavation are at elevations ranging from +21 to +24 feet N.G.V.D. If we find adverse drawdown in the wetlands during Id. our monitoring program . . ., a clay core (or other acceptable method) will be used to hydrologically isolate the wetland from the lower elevation lake. The Jammal October 14 report adds that the flow of contaminants into the pit is "mitigated" by the fact that "stormwater flow directly into the excavation will be minimized." Id. The report restates that the water table is "fairly flat" and at an approximate elevation of 20.5 feet. The report thus concludes that the normal seasonal high pool elevation for the proposed borrow pit is estimated to be 20.5 feet. Because the estimated seasonal fluctuation in the water table is about 40 inches, the Jammal October 14 report projects that the water elevation of the filled pit will vary during the year from 17- 20.5 feet. The Jammal October 14 report describes a groundwater monitoring plan that involves devices in addition to the three shallow aquifer monitoring wells described above. A staff gauge in 0.1-foot increments would be placed in the pit and read twice daily during excavation. The records would be submitted at unstated intervals to the District and Seminole County. A Jammal representative would select locations for the installation of an undetermined number of shallow aquifer piezometers along the edges of the wetlands adjacent to the excavation. The Jammal representative would also select the location for the installation into the Floridan aquifer of an additional piezometer "[s]ince there is no site specific data on the altitude of the potentiometric surface of the Floridan aquifer and since the aquifer is subject to seasonal variation." Applicant Exhibit 3, Jammal report, page 6. During the first month of operation, the readings (to the nearest 0.1 foot) would be taken daily. Again, records would be submitted at unstated intervals to the District and Seminole County. The third element of the groundwater monitoring plan calls for on-site inspections by a Jammal "geotechnical engineer." At weekly intervals during the first month of operation and at unstated intervals thereafter, the engineer: will examine the quality of effluent reentering the pit, the operation of the settling pond, the integrity of the installed piezometers, and look for any signs of adverse groundwater impacts. The . . . geotechnical engineer will make written recommendations to mitigate any noted possible adverse groundwater impacts. The ... geotechnical engineer also reserves the right to make this plan more stringent if circumstances demand. Applicant Exhibit 13, Jammal October 14 report, page 7. Technical Staff Reports and Permit Conditions By letter to Mr. Crabtree dated November 20, 1991, the District advised that it would be considering the borrow pit application at a meeting on December 10, 1991. The letter contains a Technical Staff Report dated November 27, 1991, and a Notice of Rights. The November 27 Technical Staff Report (TSR-1) describes the proposed project, identifies Mr. Veigle as the applicant, mentions Lake Cochran as a receiving waterbody, and otherwise sufficiently describes the project so that Mr. Crabtree and other interested persons would know that the Board would be considering the borrow pit project. Describing the wetlands, TSR-1 notes: At the time of the field inspection, water depths within the wetlands varied from several inches to several feet. The water levels within the wetlands are dependent on the fluctuations of the Floridan Aquifer. The vegetation and condition of such wetlands change seasonally and annually, due to differences in the amount of rainfall and the degree of recharge. Applicant Exhibit 13, page 5. Concerning the impact of the proposed excavation on the wetlands, TSR- 1 states: No impact is proposed on the remainder of the 22.4 acres of herbaceous wetlands [other than the excavation of 0.24-acre Wetland E] within the project boundary. District Staff does not anticipate that drawdown will occur within the adjacent wetlands, due to the absence of a confining layer within the project area, and the method of construction proposed (no dewatering offsite). The 0.2 acre wetland [Wetland E] is below the threshold for review, as set forth in section 10.7.4, [Applicant's Handbook]. Applicant Exhibit 13, page 5. TSR-1 approves the use of a dry detention pond and swales to control stormwater runoff. Although located in the 100-year floodplain, the proposed project, according to TSR-1, would not adversely affect the storage capacity of the floodplain because no fill would be added to the floodplain. TSR-1 does not address in any detail the impact of the proposed project on the Geneva bubble. TSR-1 states that Applicant originally proposed to leave only 10 feet of confining sediments over the Floridan aquifer, but, due to concerns expressed by the public and comments from District staff, Applicant agreed to leave a minimum separation of 15 feet. TSR-1 contains 11 conditions. Condition 1 is that the permit expires December 10, 1996. Condition 3 is: "The permittee must obtain a General or Individual permit from the District prior to beginning construction of subsequent phases or any other work not specifically authorized by this permit." Applicant Exhibit 13, page 6. Incorporating as a condition the maps and diagrams discussed above, TSR-1 concludes that the proposed project is consistent with the requirements of Chapters 40C-4 and 40C-42. The accompanying Notice of Rights informs the recipient: A party whose substantial interests are determined has the right to request an administrative hearing by filing a written petition with the [District] within 14 days of receipt of notice of the District's intent to grant or deny a permit application . . .. A party whose substantial interests are determined has the right to request an administrative hearing by filing a written petition in the office of the District Clerk within 14 days of receipt of notice of final District action on a permit application, as provided in [Rule] 40C-1.511 . . ., if the Governing Board took action which substantially differs from the notice of intent to grant or deny the permit application, or if a substantially interested party did not receive notice of the District's intent to grant or deny the permit application. Applicant Exhibit 13, page 8. The certificate of service shows that the District mailed Mr. Crabtree a Notice of Rights on December 2, 1991. Mr. Crabtree received the Notice of Rights and TSR-1 on December 6, 1991--four days before the scheduled December 10 District meeting. On December 10, 1991, the District mailed to Mr. Crabtree another letter, Technical Staff Report (TSR-2), and notice of rights, which Mr. Crabtree received December 12, 1991. The December 10 cover letter informs Petitioner Crabtree that the enclosed TSR-2 "constitutes a notice of the District's intent to grant or deny the application. Please refer to the enclosed notice of rights to identify any rights that you may have regarding the proposed agency action." Applicant Exhibit 13, page 10. TSR-2 is identical to TSR-1 except for the addition of three new conditions pertaining to the impact of the excavation and operation of the borrow pit on groundwater. These conditions are: During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991.10/ The permittee must include the following modifications in the referenced plan: The maximum interval for data collection is monthly. An additional shallow aquifer piezometer must be installed to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer. Monthly rainfall totals must be collected at the borrow pit. Monitoring must continue until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. No excavation can occur below elevation +0 ft NGVD until the permittee submits a water budget analysis, based on at least two years of data collection from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands. Applicant Exhibit 13, page 15. At the District Board meeting on December 10, 1991, the Board agreed to issue the MSSW permit, but added more conditions. The record is unclear as to what conditions were added and when they were added. It is clear, though, that the Board at the December 10 meeting expanded upon Condition 14 in TSR-2 by dividing the excavation project into two phases and, as noted below, required further review prior to excavation of the land following the first phase. On December 23, 1991, Petitioners filed the petition with the District challenging its intent to issue the MSSW permit. A Technical Staff Report dated April 20, 1992 (two days before the final hearing commenced) (TSR-3) incorporates the conditions of the MSSW permit approved by the Board on December 10, 1991. Restating the introductory language and Conditions 1- 11 contained in the prior TSR's, TSR-3 states the following conditions:11/ During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991. The permittee must submit a revised plan for District staff approval within 30 days of permit issuance and prior to starting construction. The revised plan must include the following modifications: The permittee must include the following modifications in the referenced plan: The maximum interval for data collection is monthly. An additional shallow aquifer piezometer must be installed to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer. Monthly rainfall totals must be collected at the borrow pit. Monitoring must continue for a minimum period of at least one year until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD pursuant to conditions 13 and 14. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. The Floridan aquifer monitoring well must be installed and sufficient data collected to establish the potentiometric level prior to starting construction. The permittee must proceed with excavation in the following phased manner: Flag the limits of Area "A" as delineated on exhibit 1 and notify the District staff in the Orlando Field Office at least one week prior to starting construction. District staff must concur with flagged limits prior to starting construction. Excavate Area "A", as delineated on Exhibit 1, to a depth of no greater than +0 ft NGVD until such time that the permittee satisfies permit condition no. 14. The borrow areas outside of Area "A" may be excavated to a depth no greater than +21 ft NGVD concurrent with the excavation of Area "A". Following the complete excavation of Area "A" to elevation +0 ft NGVD, a bottom contour survey of Area "A" must be submitted to the Orlando Field Office. This survey must be signed and sealed by a Registered Land Surveyor. Following the submittal of the bottom contour survey of Area "A" the permittee must submit a water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected for a minimum period of at least one year from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft. NGVD. 134. No excavation can occur below elevation +0 ft NGVD in Area "A" and below elevation +21 ft NGVD in the borrow area outside Area "A" until the permittee submits a water budget analysis, based on at least two years of data collection supported by an appropriate groundwater flow model, based on sufficient data, collected for a minimum period of at least one year from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD when the pit is fully excavated. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD in Area "A" and elevation +21 ft NGVD in the borrow area outside of Area "A". 145. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must stop all excavation and apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands or other water resources. 16. Within 30 days of permit issuance and prior to starting construction, the permittee must submit to the District Orlando Field Office, three (3) copies of a revised construction plan, including contractor notes on mining operation, to comply with this permit. The permittee must obtain District written approval of the revised plan prior to starting any construction. Applicant Exhibit 4, pages 4-5. Area A, which is depicted in the diagram attached as Appendix B, covers a little more than half of the original area proposed for excavation. Area A includes the easterly side of the proposed pit and continues to abut State Road 46 and Wetland D. However, Area A does not approach as closely Wetlands A and F and imposes a setback of at least 100 feet from Wetlands A and F. This setback would not apply once excavation began following the completion of the deeper pit in Area A and shallower pit in the remainder of the original pit except for the 100-foot setback from Wetlands A and F. A Technical Staff Report dated April 29, 1992 (TSR-4) (the last day of the hearing), was prepared to indicate the language of the conditions that District staff determined would be necessary after considering the evidence presented at the hearing. Although referred to as TSR-4, it would appear that the TSR form was adopted for ease of reference and District staff was not issuing TSR-4 as a formal TSR. TSR-4 makes the following changes to TSR-3: During construction and operation, the permittee must conduct groundwater monitoring in accordance with the "Groundwater Monitoring Plan" described in the Hydraulic Dredging Plan, prepared by Jammal & Associates, dated October 14, 1991 and received by the District on October 25, 1991. The permittee must submit a revised plan for District staff approval within 30 days of permit issuance and prior to starting construction. The revised plan must include the following modifications: The maximum interval for data collection is monthly weekly. An additional shallow aquifer piezometer and staff gauge must be installed at a "reference site" to monitor the surficial aquifer elevation outside the radius of influence of the borrow pit. The permittee must obtain written approval of the location for this piezometer monitoring location. Monthly Weekly rainfall totals must be collected at the borrow pit. Monitoring must continue for a minimum period of at least one year or longer after Area "A" is completed until sufficient data exists to indicate that the mean normal wet season water elevation in the final borrow pit is no less than 20.5 ft NGVD pursuant to conditions 13 and 14 complete the water budget analyses as required by conditions 15, 16 and 17. The permittee must obtain written approval from the District prior to modifying or terminating the monitoring program. The Floridan aquifer monitoring well must be installed and sufficient data collected to establish the potentiometric level prior to starting construction. Prior to starting construction (borrow operation), the permittee must install a staff gauge and piezometer, referenced to NGVD datum by a registered land surveyor, in wetlands "A", "B", "C", "D", "F" and "G". The permittee must monitor the water level at each wetland monitoring station and at the "reference site" located outside the influence of the borrow pit (as required under Permit Condition 12b.) on a weekly interval. This monitoring [must occur for a period prior to starting construction approved by the District as sufficient to establish a baseline comparison between the reference site and each monitored wetland. Monitoring must]12/ continue until construction is completed. The permittee must submit this monitoring data for each month to the District's Orlando office by the end of each calendar month. The permittee must provide one surveyed transect each in wetlands A, G and F. The transects will be located as shown on Exhibit 1. The ground elevations and surface water elevations referenced to N.G.V.D. must be submitted as a part of the certified survey, prior to starting construction. The survey must be conducted and certified by a surveyor registered in the State of Florida. 135. The permittee must proceed with excavation in the following phased manner: Flag the limits of Area "A" as delineated on exhibit 1 and notify the District staff in the Orlando Field Office at least one week prior to starting construction. District staff must concur with flagged limits prior to starting construction. The limits of Area "A" must be at least 100' from the boundaries of wetlands A and F as such wetland boundaries are shown on the Post Development Drainage Map prepared by the Civil Design Group dated July 1991 and received by the District on October 25, 1991. bc. Excavate Area "A", as delineated on Exhibit 1, to a depth of no greater than +0 ft NGVD until such time that the permittee satisfies permit condition no. 146. The borrow areas outside of Area "A" may be excavated to a depth no greater than +21 ft NGVD concurrent with the excavation of Area "A". cd. Following the complete excavation of Area "A" to elevation +0 ft NGVD, a bottom contour survey of Area "A" must be submitted to the Orlando Field Office. This survey must be signed and sealed by a Registered Land Surveyor. de. Following the submittal of the bottom contour survey of Area "A" the permittee must submit a water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected in accordance with the approved monitoring plan, for a minimum period of at least one year or longer after Area "A" has been excavated to elevation 0 NGVD, until sufficient data exists to calibrate and verify the water budget analysis. The water budget analysis must demonstrate that the water level in the borrow pit in a normal rainfall year will be at least two (2) feet above the ground elevations within a 100 foot radius of the center of wetlands "A" and "G" during January through April from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft. NGVD. 146. No excavation can occur below elevation +0 ft NGVD in Area "A" and below elevation +21 ft NGVD in the borrow area outside Area "A" until the permittee submits a District- approved water budget analysis supported by an appropriate groundwater flow model, based on sufficient data, collected in accordance with the approved monitoring plan, for a minimum period of at least one year or longer after Area "A" has been excavated to elevation 0 NGVD until [sic] sufficient data existing to calibrate and verify the water budget analysis. The water budget analysis must demonstrate that the water level in the pit in a normal rainfall year will be at least two (2) feet above the ground elevations within a 100 ft radius of the center of wetlands "A" and "G" during January through April from the groundwater monitoring plan, that demonstrates that the mean normal wet season water elevation will not be less than 20.5 ft NGVD when the pit is fully excavated. District staff must review this analysis and provide written approval prior to any excavation below elevation +0 ft NGVD in Area "A" and elevation +21 ft NGVD in the borrow area outside of Area "A". 157. If at any time during construction or operation, District staff determine based on monitoring data or water budget analyses submitted by the permittee that the water level in the pit during a normal rainfall year will not be at least two (2) feet above the ground elevations within a 100 foot radius of the center of wetlands "A" and "G" during January through April mean normal wet season elevation in the borrow pit is below 20.5 ft NGVD, the permittee must stop all excavation and apply for and obtain a permit modification to prevent adverse impacts or mitigate for adverse impacts to adjacent wetlands or other water resources. If at any time during construction (borrow operations), the measured water level in any of the wetlands, as adjusted for any difference observed with the "reference site" during pre-construction monitoring, is 0.5 ft. below corresponding water level in the "reference site", the permittee must immediately cease the borrow operation until the relative difference in water level between each monitoring site and the reference site is no more than 0.5 ft. The limit of borrow operation must be at least 200 feet from any septic tank drain field. Prior to construction, the permittee must submit to the District a map delineating the location of all septic tanks and septic tank drain fields within 500 feet of the property boundary. The permittee must maintain a continuous berm at elevation 27.0 ft NGVD between wetland "D" and the borrow pit during construction and operation of the project. A minimum berm width of four (4) feet must be maintained. 1621. Within 30 days of permit issuance and prior to starting construction, the permittee must submit to the District Orlando Field Office, three (3) copies of the following: a revised construction plan, including contractor notes on mining operation, to comply with this permit; and, a detailed plan for the water budget analysis, including all methodologies and data to be used. The permittee must obtain District written approval of the revised plan prior to starting any construction. Impact of Proposed Borrow Pit and Adequacy of Permit Conditions Contamination of Floridan Aquifer Petitioners allege that excavation of the pit would facilitate the introduction of various pollutants into the Floridan aquifer. The potential sources of pollutants are a nearby sprayfield, possible septic tank drainfields, and general stormwater runoff. Regarding the sprayfield and possible septic tank drainfields, the issues involve surface water runoff and groundwater movement. Petitioners assert that the stormwater runoff problems would be exacerbated by the location of the subject site in the 100-year floodplain. Two of these issues require little consideration. Nothing in the record suggests that effluent from any septic tanks in the area would flow onto the subject site or, if so, into the pit, regardless whether the flow were on the surface or in the ground. In any event, Condition 19 adequately addresses the septic tank issue, to the extent that one exists. The principle source of polluted stormwater runoff onto the subject site is State Road 46, which drains into Wetlands C and D. Wetland D would abut the pit, but Condition 20 requires the construction of a berm at elevation 27 feet between the wetland and the pit to protect the latter from runoff. There is some evidence of agricultural activity in the area, but the evidence is insufficient to determine the volume and composition of the agricultural runoff or the direction of its flow. The subject site is located in the 100-year floodplain. However, Applicant does not propose the introduction of any fill, so the floodplain functions in terms of storage and conveyance should not be substantially affected. The evidence concerning agricultural activities and septic tanks is insufficient to determine that floodwaters would necessarily carry livestock wastes, fertilizers, insecticides, herbicides, and septic tank effluent into the borrow pit. As noted below, sprayfield operations will cease during storm events, Thus, the design of the borrow pit, including the berms and Condition 20, adequately address the issues of the floodplain and runoff from the 100-year storm event. The sprayfield raises the only serious pollution issue. A reclaimed- water sprayfield owned and operated by the City of Sanford will be located on a large parcel abutting the northwest boundary of the subject parcel. Consisting of nearly 900 acres of hay fields and citrus groves, the sprayfield will receive 2.84 million gallons per day of tertiary-treated domestic wastewater with, according to the DER permit, "high level disinfection for reclaimed water delivered to the reuse system." Drainage from the southeast corner of the sprayfield is in the direction of the subject site. The flow in the shallow aquifer below the southeast corner of the sprayfield is also in the direction of the subject site. The citrus groves will be located on the portion of the sprayfield nearest the subject parcel. The sprayfield was permitted on April 15, 1991, and is still under construction. The conditions of the sprayfield permit are stringent in terms of requiring back-up equipment and operating personnel. Permit conditions demand a reduction in total suspended solids to not more than 5 mg/l and the maintenance of 1 mg/l total chlorine residual after a minimum contact period of 15 minutes. By these two parameters, the permit indirectly undertakes the complex process of viral monitoring; no direct monitoring of viral agents will be attempted. The micro-jet irrigation system applies the reclaimed water in no more than a two-foot radius beneath each citrus tree so as to minimize the possibility of runoff. The rate of application is low--0.8 to 1 inch per week. The soils in the area are highly permeable, especially at the higher elevations where, otherwise, reclaimed water runoff would be a greater risk. The land application system will not be operated during storm events. Some of the reclaimed water will be lost to evaporation. The majority of the reclaimed water will be transpired by the trees while the water is still in the root zone above the water table. The remainder of the reclaimed water will percolate into the shallow aquifer. The primary direction of travel for this reclaimed water is vertical through the confining layer and into the Floridan aquifer, not lateral within the shallow aquifer. As the reclaimed water migrates through the confining layer between the shallow and Floridan aquifers, additional contaminants will be filtered from the reclaimed water or simply fail to survive during the length of time required for the water to reach the Floridan aquifer while percolating through the undisturbed, relatively thick confining sediments. The excavation of the borrow pit would create a downgradient that will attract the reclaimed water that moves laterally. Any portion of the reclaimed water that proceeds directly into the Upper Floridan aquifer beneath the pit without passing through the pit would traveled through a longer section of the confining layer (given its diagonal path) than the reclaimed water percolating into the Floridan aquifer directly below the sprayfield. Nothing in the record establishes that the reclaimed water percolating straight down beneath the sprayfield threatens the quality of the water in the Floridan aquifer. A portion of the reclaimed water will enter the shallow aquifer and then be discharged into the borrow pit, rather than pass from the shallow aquifer through the confining beds and into the Upper Floridan aquifer. The reclaimed water reaching the Upper Floridan aquifer from the borrow pit will not travel through as much confining sediments as will the reclaimed water passing straight into the Upper Floridan beneath the sprayfield. The reclaimed water will encounter relatively little resistance while traveling laterally through the shallow aquifer. Due to the 70% reduction in confining sediments, the reclaimed water entering the Floridan aquifer from the pit will also encounter less resistance than will the reclaimed water traveling straight down from the sprayfield. However, the reclaimed water is heavily treated, released in controlled quantities (adjusted for rainfall), applied in a manner designed to maximize elimination by evapotranspiration, and carefully monitored (notwithstanding the indirect monitoring for viral agents). Applicant has provided reasonable assurance that surface runoff and groundwater movement from possible septic tank drainfields, surface runoff from the sprayfield, and general surface runoff of stormwater--notwithstanding the location of the pit in the 100-year floodplain--will not adversely affect the Floridan aquifer. Applicant has provided reasonable assurance that the location of the borrow pit in the 100-year floodplain will not adversely affect the drainage functions of the floodplain. The question of sprayfield contaminants entering the pit from the surface aquifer and then entering the Floridan aquifer is considered at the end of the next section. Wetlands and Hydraulic Conductivity The remaining issues involve the wetlands and, as Petitioners allege it, the hydraulic conductivity of the overburden left after excavation. The latter issue raises questions of recharge or discharge of the shallow and Upper Floridan aquifers because recharge and discharge rates are a function of the hydraulic conductivity of confining beds, thickness of confining beds, and head difference between the surficial and Floridan aquifers. The wetland and hydraulic conductivity issues are intertwined due largely to the question of what would be the stabilized water table elevation, and thus pool elevation of the filled pit, following excavation. The primary threat to the wetlands is due to dewatering, which requires consideration of the impact of the proposed excavation upon the water table. However, mitigation conditions focusing directly upon the impact to wetlands of a lowered water table do not necessarily address the question of recharge implicit in the hydraulic conductivity issue. Wetlands A key factor concerning the wetland issue is the condition of each wetland, which in turn affects the functional value of the wetland. In this case, the primary function is that of providing habitat. This function can be impaired or eliminated by any disturbance of the timing or quantities of water delivered to or taken from the wetland. In fact, the wetlands are not all in the same condition and none of them is in superior condition. Wetlands B, C, D, and E (which is to be excavated) are of little value. In particular, Wetlands C and D, which receive polluted runoff from State Road 46, have suffered from the invasion of many undesirable plant species. Wetland B tends to remain dry even when the other on-site wetlands are inundated. When other wetlands have as much as 30 inches of water in them, Wetland B has only a thin veneer of water. Wetlands B and C are quite small. Wetland E shares most of these negative attributes and is also the smallest. Wetlands A and G are of the highest relative value. Wetland F, which is a high prairie and, thus, different from the others, maintains a fair functional value, although not as high as the functional values of Wetlands A and G. Wetlands A, G, and F are the three largest wetlands, with Wetlands A and F constituting about three-quarters of the wetlands acreage on the site. Wetland A, which is 9.7 acres, has suffered an invasion of woody vegetation extending through its northern one- third to one-half. Partly due to its significant water levels, Wetland A has potential as nesting habitat for the sandhill crane. Wetland A had at least 24 inches of water at its fringe and more toward the center during the dry months this year. The more inundated portion of Wetland A is the part of the wetland closest to the edge of the pit. Wetland G, which is 2.64 acres, also has potential as nesting habitat for the sandhill crane, again partly due to its significant water levels. In the absence of unusually high water elevations, Wetland G is no longer connected with the wetland south of Cochran Road or, thus, with Lake Cochran, which is located south of the wetland across Cochran Road. Wetland G contains an area of standing water for extended periods with water depths exceeding 36 inches prevailing in the center of the wetland. Wetland F, which is 6.75 acres, also enjoys significant water levels and contains a deep hole in the middle of the wetland where water can usually be found throughout the year. Even during the dry months, as much as two acres of Wetland F remain inundated. During the rainy season, Wetland F may contain as much as 30 inches of water across much of its surface. Both sides of Wetland F would be within 10 feet of the edge of the pit, and, according to the cross-section diagram, Wetland F would be separated from the pit by only a silt fence (no berm). This is because Wetland F, as a high prairie, is at elevation 25 feet. Both sides of Wetland A would be about 30-40 feet from the edge of the pit. Wetland A would be separated from the pit by a silt fence and a berm. The side of Wetland G opposite Cochran Road would be about 20 feet from the edge of the pit. Due to the relatively high elevation of this end of Wetland G, only a small berm and a silt fence separate this side of Wetland G from the pit. Wetland D would be in a valley between State Road 46, which crowns at nearly 30 feet, and the edge of the pit, which, originally proposed at 25.5 feet, is now proposed to reach 27 feet under Condition 20. The side of Wetland D nearer the pit is about 50 feet distant from the top of the pit. This side of Wetland D is at 24 feet. The functions presently performed by the on-site wetlands would not be adversely impacted, transitory or long term, by a maximum transitory drawdown (during construction) of no more than 0.5 feet, as permitted by Condition 18, or the destruction of Wetland E. Hydraulic Conductivity As noted above, the dewatering question, which involves the wetlands issue, also involves the issue of the hydraulic conductivity of the post- excavation overburden. However, the reasonable assurance provided by Condition 18 with respect to the wetlands does not necessarily extend to the matters raised by the issue of hydraulic conductivity. The issue of hydraulic conductivity raises the question of the impact of the proposed project on the Upper Floridan aquifer, especially with respect to the exchange of groundwater between, on the one hand, the pit, into which the surficial aquifer will discharge, and, on the other hand, the Upper Floridan aquifer or, at this location, the Geneva bubble. The various projections of water elevations for the wetlands and the transient and stabilized pool elevations for the borrow pit are arrayed against a background of conflicting evidence offered by expert hydrogeologists called by the three parties. There are serious questions concerning the models, assumptions, and data inputs used by the experts to project water elevations in the pit, adjacent water table, and wetlands. Reaching conflicting conclusions on some matters and no conclusions at all as to other matters, the expert witnesses in the case apply various well-recognized laws of hydrogeology to an incomplete data set of hydrogeological conditions prevailing at the subject site. In many cases, assumptions based on regional conditions replace missing, site-specific data. There is an clear lack of reasonable assurance concerning certain key aspects of the hydraulic conductivity issue. The USGS Modflow model employed by the experts for the District and Petitioners (to yield conflicting results due to different values for leakants inside the pit) is itself rejected by the Applicant's expert, who is an employee of Jammal. Applicant's expert, who has considerable experience with the model, indicates that the USGS Modflow model is unsuitable in this case because, among other things, it assumes a relatively flat water table. The assumption of a flat water table is incorrect and the suitability of the USGS Modflow model for this pit is doubtful. At the subject site, the water table tends to follow the grade of the ground surface, and the subject site contains a sloping terrain. Unfortunately, the source of the misinformation concerning the gradient of the water table was the Jammal October 14 report, which inaccurately describes the water table as "fairly flat."13/ The faulty assumption concerning the gradient of the water table may understate the water table impact in the downgradient direction and overstate the water table impact in the upgradient direction. The USGS Modflow is a powerful model. The degree of error contained in faulty data inputs or assumptions may be multiplied in final results. As conceded by the District in its proposed recommended order, "neither [expert's] groundwater flow model was calibrated using test data from the site." District's Proposed Recommended Order, Paragraph 52. Significantly, the District's expert admits that he would have liked to have a value for recharge to the Floridan aquifer. Applicant's expert testified that useful tests would include, with respect to each wetland, a pump test for leakage, a slug test, and the installation of a piezometers and auger borings. At least certain of these data would be obtained under TSR-4, but not until Area A and the shallow remainder of the pit have been excavated and the required monitoring begins. District's Proposed Recommended Order, Paragraph 53. The inadequacy of the data, especially in view of the power of the modelling tool, undermines the reliability of the modelling results, as does the incorrect assumption concerning the water table gradient. Questionable assumptions different at the subject site--displace site-specific data so as to reduce materially the reliability of the ensuing analysis.14/ The reliability of the hydrogeological projections in this case is undermined somewhat by the disagreement between the experts for the Petitioners and District, who used the USGS Modflow model, and Applicant's expert, who rejected the model. The reliability of the hydrological projections is further undermined by a fundamental disagreement between the District's experts as to the impact of the proposed project on the water table. The District expert who spent considerable time and effort in analyzing the application is a Hydrologist III, who has been employed by the District for five years. He testified that the pit would not substantially lower the water table. The subject application was initially reviewed for about one and one- half hours by the Director of the District's Department of Ground Water Programs and Technical Support. Employed by the District for 17 years and in charge of 11 hydrogeologists or engineers, the Division Director disagreed with the Hydrogeologist III. The Director instead concluded that the excavation would necessarily result in lower water elevations than Applicant and Jammal had projected. The Division Director based his conclusion on a largely intuitive analysis of such factors as the elevation of the water table, depth of the borrow pit, and potentiometric surface of the Floridan aquifer. In fact, Applicant's expert also employed an intuitive approach in part in determining that the proposed project would not dewater the on-site wetlands. Although in this case more reliable than the modelling work, the intuitive approach is necessarily preliminary in nature. Moreover, Applicant's expert made assumptions that cast into doubt some of his conclusions. One problem is the attempt by Applicant's expert to estimate the water table elevation for 98 points around the proposed borrow pit. This would measure the depth from the surface of the ground to the seasonal high water table. Applicant's expert identified four sources of data for this work. One of these was the Soil Conservation Soils map, which, due to the large scale involved, is a poor substitute for soil classifications based upon soils samples taken from the site itself. Another source used by Applicant's expert was site-specific topographical information including the wetlands elevations. This information included or culminated in an estimate that the water table was one foot over the floor of the wetlands. For this information, Applicant's expert relied on information supplied by the biological experts employed by Petitioners and Applicant. However, elevation data of this type supplied by biologists were not sufficiently reliable for the purposes used. A second problem in the intuitive approach of Applicant's expert involves his assumptions concerning the friction of the excavated overburden versus the remaining overburden. Applicant's expert took 16 feet as the value for the potentiometric surface of the Upper Floridan aquifer. He then took 26.3 feet (rounded off to 26 feet) as the top of the water table, which itself may be suspect due to its derivation in part from the data described in the immediately preceding paragraph. Tentatively assuming that the water elevation of the stabilized pit would be 26 feet, Applicant's expert then calculated a head difference of 10 feet between the stabilized pool elevation and the Upper Floridan aquifer. By calculating the effect of the removed overburden on head difference, Applicant's expert projected the final pool elevation, as adjusted for the removed overburden. The process requires that the original head difference be multiplied by the percentage representing the friction or resistance of the remaining overburden when compared to the friction or resistance of the original overburden. The new head difference is then subtracted from the stabilized pool elevation to yield a truer stabilized pool elevation. The process is clearer when illustrated. Petitioners' expert estimated that the removal of 70% of the overburden removed 70% of the friction or resistance offered by the confining layer to migrating groundwater. This assumes that the friction or resistance of the confining sediments is unchanged with depth. If the original head difference were 10 feet (26 feet assumed unadjusted stabilized pool elevation minus 16 feet potentiometric surface of Floridan aquifer), then the friction or resistance remaining in the unexcavated overburden less than the original head difference of 10 feet. Subtracting the assumed unadjusted pool elevation of 26 feet by the head difference of seven feet means that the true stabilized pool elevation would be 19 feet. Applicant's expert altered the above-described calculations in a manner not justified by the record. He opined that the friction or resistance of the confining soils nearest the limestone top of the Upper Floridan aquifer was greater than the friction or resistance of the confining sediments closer to the surficial aquifer. Estimating that the remaining 15 feet of overburden had 45% of the friction or resistance of the original 52 feet of overburden, Applicant's expert determined a head difference of 4.5 feet, which is 5.5 feet less than original head difference of 10 feet. Thus, the true stabilized pool elevation would be 20.5 feet (26 feet less 5.5 feet), according to Applicant's expert. Again, the absence of site-specific data undermines the validity of conclusions based on logical analysis. The regional experience of Applicant's expert supports his adjustment to friction, but this experience is unrelated to the site in question. Other sources in the record support the regional existence of such a phenomenon. But the available site- specific data do not suggest that regional characteristics apply to the subject site, and, on balance, the record compels a conclusion that Petitioner's expert was correct in assuming a proportional relationship.15/ There are site-related hydrogeological questions for which, notwithstanding the existence of powerful models, scientific laws, and capable experts, sufficient data do not exist to provide reasonable assurances. As noted above, data do not exist concerning the present recharge rate of the Floridan aquifer at the site. Data concerning the potentiometric surface of the Floridan aquifer at the site are variable, reflecting perhaps seasonal changes or the necessary inexactness of measurements. Applicant's expert used 16 feet at the hearing, which he indicated was from the Ardaman report used in connection with the sprayfield application. Ardaman reports a potentiometric surface of 16.2 feet, although the report warns that the number may vary somewhat. Applicant Exhibit 11, Tab 2, page 5. As the February 13, 1990, Jammal report notes, the pressure head of the Floridan aquifer--at the proposed site One of the predicted effects of the sprayfield operation is to increase the recharge of the Floridan aquifer due to the introduction of more water into the surficial aquifer with the effect of raising the water table. This is the conclusion of the Law Environmental report dated January 10, 1989 (Applicant Exhibit 11, Tab 1, page 23) and the Ardaman report dated November 14, 1988. The Ardaman report states: An increase in deep recharge to the Floridan aquifer at [the sprayfield] site results from the rise of the groundwater level caused by increased recharge to the surficial aquifer. The magnitude of deep recharge increase is a function of the increased head in the surficial aquifer and the permeability of the confining layer. Applicant Exhibit 11, Tab 2, page 13. Both of these reports were prepared by an engineering firm handling the sprayfield project. The same engineering firm also became involved in the subject application when it sent Jammal a letter dated February 21, 1990, asking three questions. The February 21 letter to Jammal asks: What potential aspects of intermixing of surface waters into the aquifer might be involved due to the reduction of thickness of the aquaclude resulting from the lake construction? As you know, the aquaclude could be thinned appreciably by the lake construction and thus the hydraulic path length, and, therefore, head loss between the two minimized and some potential of pollution of the aquifer by surface waters may occur. Are there upwelling concerns due to the reduction of the aquaclude thickness? Is it likely that the potentiometric surface of the aquifer at elevation 13 and the proposed pond bottom at elevation -20 might cause breaching of the thinner layer of aquaclude postconstruction and thus intermixing of the two zones. What might the long-term effects on the shallow ground water table both on and off site be? Reduction of the aquaclude thickness may cause the aquaclude at that particular location to leak more readily, thus, the lake level of 24 proposed on our plans may not be maintainable and a lower lake level might result. This in turn may create a hydraulic gradient which would affect the shallow ground water table both onsite, in terms of viability of wetlands, and offsite in terms of both viability of offsite wetlands as well as potential drying up of shallow wells on onsite properties. ... Applicant Exhibit 9, Tab 6, In response to the first question, the Jammal letter, which is dated March 1, 1990, notes that the only source of contaminants would be stormwater runoff. The Jammal letter reports that the District had previously determined that a three- foot sand bottom was sufficient in the Ocala area for filtration prior to water entering underlying limestone formations. The answer concludes that "due to the sensitive nature of water supply in the vicinity of the site [and the ensuing scrutiny to be given the proposed separation of 7-10 feet], . . . it is our opinion that any increase in separation distance between lake bottom and the underlying aquifer will be better." Applicant Exhibit 9, Tab 6. With respect to the second question concerning "upward vertical leakage," the Jammal letter discusses the vertical leakage during lake excavation and dewatering. The response notes that dewatering is now limited to 0 feet,16/ after which wet excavation must take place through draglining or hydraulic dredging. Later, the Jammal letter asserts: "The intermixing of waters between the aquifers is not considered to be a problem since natural seepage of groundwater from the surficial aquifer to the Floridan aquifer will not be altered except during dewatering and excavation." Id. The Jammal response to the third question mentions stabilized pool elevations of the filled pit, as discussed above: The potential for long term lowering of water level in the excavated lake is a concern at this site due to a reduction in the hydraulic barrier between the shallow aquifer and the underlying Floridan aquifer. The current hydraulic head difference of approximately 12 feet between the two (2) aquifers is the result of head losses between the surficial aquifer to the underlying Floridan aquifer due to groundwater seepage. The primary head loss is anticipated to occur in the sands and clayey sands of the shallow aquifer. Theoretically, removing approximately two- thirds of these sands may decrease the hydraulic head difference by as much as two- thirds. Consequently, the hydraulic head between the two aquifers may create a stabilized lake level 4 to 5 feet above the potentiometric surface elevation (+17 to +18 feet NGVD). In reality, the theoretical proportioning presented herein may not be accurate. In order to estimate this potential head difference, a piezometer can be installed with a screen interval extending from the bottom of the clayey sands to the bottom of the lake excavation. The piezometer will need to be grouted in order to isolate this clean zone and measure the new potential head elevation at that depth. In this manner, it will be possible to evaluate the potential stabilized lake level more accurately. If the lake level stabilizes at elevations of +17 to +18 feet NGVD, it will create a cone of depression around the lake. Specific modelling was not conducted at this time to determine the exact extent and shape of the cone of depression. However, based on our preliminary evaluation, we estimate that the cone of depression may extend laterally 400 to 500 feet around the perimeter of the lake. Therefore, if existing wells are installed into the shallow aquifer and are located within this cone of depression, the water level in the wells may be expected to decline 1 to 4 feet depending on the location of the well. Wells located outside the 500 foot area surrounding the lake should not experience a drawdown effect from the long term drawdown of the lake. Applicant Exhibit 9, Tab 6. The three responses involve the issue of the hydraulic conductivity of the overburden remaining after excavation. The first answer, which concerns filtration, acknowledges that more separation means more filtration. Although more separation was later added to the proposal, the letter offers no guidance as to the practical limits of this principle. The second response is unsatisfactory and unsupported by the record. It defies logic to assert that the removal of 70% of the overburden does not "alter" the "natural seepage of groundwater from the surficial aquifer to the Floridan aquifer," even without regard to transient alterations taking place during excavation itself. The District's witness primarily responsible for the subject application alluded to this deficiency when he testified that he would like information concerning the recharge rate to the Floridan aquifer. A sufficient disturbance to the present hydraulic relationship could produce a spring-fed borrow pit, as the Floridan aquifer could seep into the pit if enough confining soils are removed and head difference between the aquifers (or the Floridan aquifer and free water of the pit) is lost.17/ The third response addresses an issue that has been considered at length above. The response rather casually acknowledges the possibility of a stabilized pool elevation for the filled pit of 17 to 18 feet and fails even to attempt to quantify the extent to which confining soils may offer more resistance closer to the limestone formation of the Floridan aquifer. The response identifies a means by which to estimate the potential head difference and readily concedes the possibility of a 1-4 foot reduction in the water table elevation extending a distance of 400-500 feet from the filled pit. Although these estimates and projections might have been refined by the time the response materials were submitted in the fall of 1991--about 18 months later--Jammal continued to project even then a stabilized pool elevation of only 20.5 feet, as contrasted with the testimony at hearing of Applicant's expert, who is an employee of Jammal, that the stabilized pool elevation would be higher. As discussed in the Conclusions of Law, it is possible to divide the proposed project into two phases. The first phase (Phase I) is the excavation of a little more than half the original proposed pit to an elevation of 0 feet, which would mean the removal of about 20 feet of overburden, rather than 37 feet as originally proposed. The remainder of the original pit, except for a wetland setback of 100 feet, would be excavated during Phase I, but only to an elevation of 21 feet, which would mean the removal of no overburden.18/ The second phase (Phase II) is the excavation of an additional 17 feet from Area A, 38 feet from the already- excavated area outside Area A (including 37 feet of confining sediments), and 52 feet of confining sediments from the area outside Area A within the Phase I 100-foot wetland setback. Based on TSR-4 with the six-inch drawdown provision, Applicant has provided reasonable assurance in all respects that excavation of Phase I will not adversely affect the Upper Floridan aquifer. The record fails to provided a basis for serious concern that removal of about 38% of the overburden from a little more than half of the original pit area will so disturb the hydraulic relationship between the Upper Floridan and surficial aquifers as to allow possible sprayfield contaminants to enter the Upper Floridan aquifer, or Geneva bubble at this location, or adversely alter the current recharge rate to the Upper Floridan aquifer or Geneva bubble. There are various factors underlying the reasonable assurance provided by the record as to the contamination and recharge issues through Phase I. First, as to the contamination issue, based on the record, it is unlikely that contaminants will reach the Upper Floridan aquifer through the pit and it is unlikely that the removal of relatively little overburden will adversely alter the site's recharge to the Floridan aquifer. Because of the unlikelihood of contaminants traveling through the surficial aquifer and entering the pit coupled with the unlikelihood of any such contaminants reaching the pit passing through the relatively thick confining sediments, Phase I excavation leaves a wide margin for safety within which the hydrogeological limitations of the record do not raise a serious concern. Second, as to the recharge issue, based on the record, it is unlikely that the removal of relatively little overburden will adversely alter the site's recharge to the Floridan aquifer and, notwithstanding the proximity of the wells of the Mullet Lake Water Association and Seminole Woods, it is unlikely that the small area covered by the pit relative to the area of the Geneva bubble or even its smaller recharge area would disturb the water budget on which the Geneva bubble depends for recharge to maintain its freshwater properties. Because of the unlikelihood of a significant impact to the site's recharge capacity coupled with the unlikelihood of the relatively small area of the pit disturbing withdrawals from the Geneva bubble, Phase I excavation leaves a wide margin for error within which the hydrogeological limitations of the record do not raise a serious concern. Based on TSR-4 with the six-inch drawdown provision Applicant has not provided reasonable assurance that excavation of Phase II will not adversely affect the Upper Floridan aquifer. The elimination of the additional overburden likewise eliminates the above-described margins of error within which the hydrogeological limitations of the record could, in effect, be ignored.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Governing Board of the St. Johns River Water Management District enter a final order denying the issuance of TSR-4, with the six-inch drawdown, for Phase II and approving the issuance of TSR-4, with the six-inch drawdown, for Phase I, as the phases have been identified in Paragraphs 128- 129 of the Findings of Fact. ENTERED this 14 day of July, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of July, 1992.
The Issue The issues to be resolved in this proceeding concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit concerning property they own located in the vicinity of the Suwannee River in Dixie County, Florida. A related issue concerns whether the Petitioners are entitled to seek a variance from the permitting statute and rules at issue in view of Executive Order 90-14 issued by the Governor on January 1, 1990. The Department takes the position that this removes its discretion to consider variance requests for proposed OSDS installations for sites which lie beneath the ten-year flood elevation of the Suwannee River. See Rules 10D-6.043 through 047, Florida Administrative Code, and Section 381.272, Florida Statutes.
Findings Of Fact The Petitioners purchased real property approximately two miles downstream on the Suwannee River from the point where U.S. Highway 19 crosses the Suwannee River in Dixie County, Florida. They purchased the property on June 6, 1986. The property is located upon a canal which ultimately connects with the Suwannee River. The purchase price of the property was $15,000.00. The applicants paid $3500.00 as a down payment and thereafter have made payments on a Purchase Money First Mortgage in the amount of $255.83 per month. They purchased the property as an investment and as a place to construct a vacation home in the future. On or about February 1, 1990, the applicants filed an application to install an OSDS with the Dixie County Unit of the Florida Department of Health and Rehabilitative Services. An application for a variance from the permitting rules regarding installation and operation of OSDS's was also submitted. The applicant, Ricky R. Robson, applied for the variance apparently because his neighbor, the owner of the adjacent lot, had previously sought and obtained a variance the year before, authorizing him to construct a "mounded OSDS" on his property. The Petitioners, as required by the Department, obtained the services of a registered land surveyor, Herbert C. Parrish, Jr., to perform an elevation survey of the property and the installation site. That elevation survey was submitted with the application documents and showed the surface grade elevation of the installation site to be 11.8 feet above MSL. The Petitioners were also required by HRS to obtain a determination of the ten-year flood elevation for the property from the District. The initial report obtained from the District indicated that the elevation of the ten-year flood plain at the location of the Petitioners' property was 15 feet above MSL. On or about February 23, 1990, the Dixie County Environment Health Officer made an on-site inspection of the property. This inspection included soil borings and a general inspection of the property. The soil borings performed did not reveal the presence of any soil type which would preclude the installation of an OSDS. No vegetative species indicative of frequent flooding were noted. Nevertheless, the health officer determined that the property was subject to "frequent flooding" based upon the District's flood elevation report concerning the ten-year flood elevation. Therefore, the Petitioners' application for an OSDS permit was denied on that basis and on the health officer's belief that Executive Order 90-14 prohibited further construction of OSDS's, including mounded systems within the ten-year flood elevation. In his testimony at hearing, however, Mr. Fross acknowledged that his earlier reference to "frequent flooding" was in error and, indeed, the site is not subject to frequent flooding. The Petitioners elected not to pursue the application for variance after they were informed by the Environmental Health Officer that pursuing such a variance would be futile. This was because no further variances were to be considered or granted by the Department due to the perceived effect of the Governor's Executive Order 90-14 referenced above. That Executive Order adopted, by reference, the "Suwannee River Task Force" recommendation and precluded the installation of OSDS's below the ten-year flood elevation because of risk to health and to ground or surface waters. Subsequent to the initial denial of the application, the Petitioners supplied more detailed information regarding the location of their property to the District and the District issued an amended flood elevation determination indicating that the actual ten-year flood elevation at the location of their property is 14.64 feet above MSL. It has been established in this proceeding that that is the ten-year flood elevation at the Petitioners' property and installation site. There is, thus, a 2.84 foot difference between the surface elevation of the Petitioners' installation site and the ten-year flood elevation. The installation site is characterized by slight-limited soils, consisting of fine sand extending at least 72 inches below the surface grade of the installation site. Additionally, the wet season water table was found to be at least 72 inches beneath the surface grade of the property. Thus, in terms of soil characteristics and water table elevations, the site is certainly appropriate, under the guidelines contained in the rules cited herein, for installation of a conventional subterranean septic tank and drain field system, but for the deficiency under Rule 10D-6.047, Florida Administrative Code, concerning the bottom surface of the drain field or absorption beds being beneath the ten-year flood elevation. The Petitioners have proposed an alternative solution to the problem involving the surface elevation of the property. That solution would involve the installation of a mounded system which would raise the bottom surface of the drain field trenches or absorption beds above the ten-year flood elevation. The Petitioners, in essence, propose to accomplish this by compliance with Rule 10D- 6.049, Florida Administrative Code, which contains specifications and requirements concerning installation of a base filled area surrounding a mound and requirements concerning placement of the septic tank and drain field within that mound. Given the requirements of that rule which limits the mound to a 36- inch height, but allows a base pad of fill of appropriate soils to be placed beneath the mound before its construction, it is obvious, given the 2.84 foot differential between the surface grade of the installation site and the ten-year flood elevation, that installation of such a mounded system would amount to a feasible alternative OSDS which will raise the drain field trench bottoms above the ten-year flood elevation. In conjunction with the six feet of appropriate soil above the wet season water table, this will assure that public health and ground or surface waters are not harmed or degraded by the installation and operation of such a system. Rule 10D-6.047 clearly envisions that installation of such fill, including a mound for such a system, can be accomplished where it references the "final lot elevation at the site of the proposed system installation . . .", as does Rule 10D-6.049, Florida Administrative Code, where it provides detailed specifications regarding construction of mounded systems and references them as "alternative systems." It should be pointed out, however, that although such a system has been established to be a reasonable alternative OSDS within the meaning of the subject rules at issue, Rule 10D-6.047 proceeds to require that the installation of such a mounded system on property which lies within the regulatory flood way requires a certification of an engineer, registered in the State of Florida, to the effect that the installation of the fill and mound will not serve to alter the "base flood". That engineering evidence and certification has not been adduced in the proof in this proceeding, even though the District, as well as the Department, has approved the installation of such a system on the Larry Gilbert lot, immediately adjacent to the Petitioners' lot, without requiring a "works of the District permit" from the District. The approval of such a similar system on the property with similar elevation immediately adjacent to the subject property might indicate that the Department has a policy of interpreting its rules to allow such mounded systems on property within the ten- year flood elevation, provided that such mounds raise the drain fields above the ten-year flood elevation. It has not been proven, however, that the fact that the District did not require a "works of the District permit" should be and has been interpreted in the past to be equivalent to the engineer's certification required by Rule 10D-6.047. Consequently, a grant of an OSDS permit for such an alternative system for these Petitioners should be conditioned on the provision of such engineering certification, calculations and data to the Department. The Petitioners' property is designated as Lot 24 of Highpoint Suwannee River Front Estates, a platted subdivision. The adjacent lot is Lot 23, owned by Larry Gilbert. The ground elevation of the Gilbert lot is approximately identical to the elevation of the Petitioners' lot. On or about July 14, 1988, Mr. Gilbert made an application to the Department for installation of an OSDS upon his property. The District, in that same month, issued a letter finding that the Gilbert lot was not subject to frequent flooding. The District also indicated in that letter that the installation of 42 inches of suitable soil on the lot would be sufficient for the installation of a mounded in-ground OSDS and that installation of such a system would not violate District rules regarding construction of obstructions in the regulatory flood way. Based upon that information, Mr. Gilbert was able to obtain a variance from the Department's variance board permitting him to install what is known as a "National Sanitation Foundation class I aerobic treatment system" on the property. After obtaining that variance, Mr. Gilbert requested an informal hearing before a Department Hearing Officer regarding the variance board's denial of his request to construct a conventional, but mounded, in-ground OSDS. Following that informal hearing, the Hearing Officer recommended that Mr. Gilbert be permitted to construct a traditional in-ground OSDS utilizing only 36 inches of fill. That informal order was adopted by HRS in a Final Order; and the 36-inch mounded system was constructed upon the Gilbert property, adjacent to the subject property and passed the Department's final inspection.
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 a Final Order be entered in this proceeding granting the Petitioner an OSDS permit authorizing construction of a mounded septic tank and drain-field system, in accordance with the requirements of Rules 10D-6.046, 10D- 6.047, 10D-6.049, Florida Administrative Code, and in accordance with the conditions discussed and found hereinabove. DONE and ENTERED this 7th day of March, 1991, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-18. Adopted. Respondent's Proposed Findings of Fact 1-17. Adopted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert Moeller, Esq. P.O. Drawer 1419 Cross City, FL 32628 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
The Issue The issue is whether an Environmental Resource Permit should be issued to Luther E. Blake, Jr. and Irene Blake Caudle authorizing the construction of a stormwater management system to serve a single-family development known as Walnut Creek, Phases I and II, in Gainesville, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Respondent, St. Johns River Water Management District (District), proposes to issue an Environmental Resource Permit to Respondents, Luther E. Blake, Jr. and Irene Blake Caudle (Applicants), authorizing the construction of a stormwater management system to serve Phases I and II of a single-family development known as Walnut Creek Subdivision in Gainesville, Florida. The system will be located on a 31-acre, L-shaped parcel of undeveloped, forested land. The proposed system includes a 135-lot single family subdivision, internal roadways with curb and gutter, a storm sewer system, and five dry retention ponds. The project site is located west of Northwest 13th Street (Highway 441) in the northwestern portion of the City of Gainesville between Northwest 39th Avenue (State Road 222) and Northwest 31st Boulevard, west of Palm Grove Subdivision, and east of Hidden Pines Subdivision. Petitioner, Glen Springs Preservation Association, Inc. (Association), is a corporation made up of an undisclosed number of persons, at least one of whom resides adjacent to or near the proposed project site. Petitioner, Elizabeth T. Furlow (Furlow), who did not indicate that she is a member, also resides with her husband near the project site. As set forth in the parties' Prehearing Stipulation, Petitioners contend that the proposed system fails to meet certain design and performance criteria, that the Applicants have failed to submit the appropriate documentation to satisfy the operation and maintenance entity requirements, and that the Applicants have failed to provide reasonable assurance that the system meets the general requirements for issuance of a permit. More specifically, they contend that the requirements of Rules 40C-42.023(1)(a)-(c), 40C-42.025(1), (3), (4), (5), (6), (7), (8), and (10), 40C-42.026(1)(a), (c), and (d), and 40C- 42.027, Florida Administrative Code, have not been met.2 On these technical issues, the parties have presented conflicting expert testimony, and the undersigned has accepted the more credible and persuasive testimony, as set forth in the findings below. Respondents have not stipulated to Petitioners' standing. Through the testimony of Furlow's husband, it was established that the Furlows live just south of the project site, approximately 100 yards north of Northwest 31st Boulevard near a creek known as Glen Springs Creek (Creek). The Furlows fear that if a permit is issued, runoff from the project site will cause further erosion of the Creek's banks and flooding during rainfall events. Although three persons who live adjacent to or near the project site appeared as witnesses, only one (Bonnie O'Brien) indicated that she is a member of the Association. Ms. O'Brien has lived just west of the Creek since 1969, around one-half mile from the project site. Over the years, and due to erosion caused by increasing development in the area, much of which began before the District began permitting stormwater systems, the Creek's banks have increased in depth from around a foot or so to as much as six feet. During large storm events, the Creek's waters rise up to as much as five feet in depth. Like the Furlows, Ms. O'Brien fears that runoff from the project will go into the Creek and adversely affect her property. There was, however, no evidence concerning the Association's interests, whether the Association is a Florida corporation, the number of members in the Association, and except for Ms. O'Brien, whether any of its members are substantially affected by the proposed activity.3 Design and performance criteria The Applicants propose to use a dry retention system consisting of five dry retention ponds ranging in depth from three to four and one-quarter feet which will be located mainly along the western boundaries of the project site. In general terms, stormwater runoff from the residential lots will sheet flow to roadways and alleys, will be collected by curbs and gutters, and then will be conveyed to the five ponds for water quality treatment. Rule 40C-42.025(1) requires that "[e]rosion and sediment control best management practices shall be used as necessary during construction to retain sediment on-site." The more persuasive evidence shows that the applicants have done so, and that the best management practices used by the Applicants are generally utilized throughout the development community. Therefore, the requirements of this rule have been met. Rule 40C-42.025(3) provides that unless applicable local regulations are more restrictive, "[n]ormally dry basins designed to impound more than two feet of water or permanently wet basins shall be fenced or otherwise restricted from public access." The proposed retention basins that have three-to-one (horizontal: vertical) side slopes will be fenced to prevent public access. The evidence also shows that there are no applicable, more restrictive local regulations. Under Rule 40C-42.025(4), "[a]ll stormwater basin side slopes shall be stabilized by either vegetation or other materials to minimize erosion and sedimentation of the basins." As to this requirement, the evidence establishes that all of the stormwater basin side slopes will be stabilized by vegetation to minimize erosion and sedimentation of the basins, as required by the rule. Further, the proposed retention basin side slopes are four-to-one and three-to-one. Slopes of this dimension are typically stable and will not easily erode. Rule 40C-42.025(5) requires that the systems be designed so that they "accommodate maintenance equipment access" and "facilitate regular operational maintenance." The evidence shows that the Applicants own the entire project site, and each of the five retention ponds can be accessed from roads and alleys within the project site. Rule 40C-42.025(6) requires that an applicant "obtain sufficient legal authorization as appropriate prior to permit issuance for stormwater management systems which propose to utilize offsite areas to satisfy the requirement in subsection 40C-42.023(1), F.A.C." Because the Applicants are not proposing to use any offsite areas for the system, and the system is located entirely on the project site, no "legal authorization" from other persons is required. Under Rule 40C-42.025(7), the system "shall provide gravity or pumped discharge that effectively operates under . . . [m]aximum stage in the receiving water resulting from the mean annual 24-hour storm." Calculations performed by the Applicants, and verified by the District's independent calculations, show that the system is designed to retain all of the runoff from the mean annual 24-hour storm event. Therefore, this rule has been satisfied. Rule 40C-42.025(8) provides that if a system serves a new construction area with greater than 50 percent impervious surface, an applicant is required to demonstrate that "post- development peak rate of discharge does not exceed the pre- development peak rate of discharge" for the mean annual 24-hour storm event. If the system serves a new construction area with less than 50 percent impervious surface, however, the requirements of this rule do not apply. The evidence shows that the proposed retention system will serve a new construction area (around 12 acres) with less than 50 percent impervious area. Therefore, the rule does not apply. Even so, the Applicants demonstrated that the post- development peak rate of discharge from the project site will not exceed the pre-development peak rate of discharge for the 24-hour storm event. In fact, the post-development peak rate of discharge from the project site during the 24-hour mean annual storm event will be zero. Finally, Rule 40C-42.025(10) requires in part that the construction plans and supporting calculations be "signed, sealed, and dated by an appropriate registered professional." The evidence shows that the final set of plans submitted in January 2002 by the Applicants was signed and sealed by H. Jerome Kelly, a professional engineer.4 Specific design and performance criteria Rule 40C-40.026(1)(a) requires that the retention system provide retention of stormwater runoff in one of four ways. Here, the Applicants have designed the system to provide "[o]n-line retention of an additional one half inch of runoff from the drainage area over the volume specified in subparagraph 1. above." Subparagraph 1. requires "[o]ff-line retention of the first one half of runoff or 1.25 inches of runoff from the impervious area, whichever is greater[.]" Because the system will provide on-line retention of a minimum of one inch of runoff from the project area, plus 1.25 inches of runoff from the impervious soil in the project/drainage area, it is found that the capacity of the proposed retention system is more than adequate to capture the quantity of stormwater runoff required by this rule. Under Rule 40C-42.026(1)(c), the system must be designed to "[p]rovide the capacity for the appropriate treatment volume of stormwater specified in paragraphs (a) and (c) above, within 72 hours following the storm event assuming average antecedent moisture conditions." To assure compliance with this rule, and to demonstrate that the system meets the required recovery of the water quality treatment volume, the District performed modeling to predict the vertical infiltration rate and the groundwater mounding effects of the proposed retention system. For the reasons stated below, it is found that the system will provide the required amount of treatment volume capacity within 72 hours of a storm event assuming average antecedent moisture conditions, as required by the rule. The District used one of the latest versions of the MODRET computer modeling program, a methodology routinely used by the District to support an application for this type of retention system. That program takes into account vertical percolation into the soil; once the water reaches the water table, the model then takes into account the lateral or horizontal movement of the water out of the pond. The model is used to determine whether the required water quality treatment volume, which is significantly less than the storage volume in the ponds, will draw down within three days. The modeling confirmed that this requirement will be satisfied. Data from the Applicants' on-site soil survey was used in the model to establish the depth below ground surface of the seasonal high water table level. This resulted in a conservative assumption of an above-normal average antecedent moisture condition beneath the retention ponds. The Applicants also collected soil samples from the project site, including those areas where the retention ponds will be located, and they performed laboratory tests in accordance with ASTM D2434 to calculate the vertical hydraulic conductivity and the horizontal hydraulic conductivity for those soils. The results of both tests fall within accepted ranges as stated in the published soils texts and governmental soils surveys for the project area. In addition, the Applicants conducted an independent test to determine the mean seasonal high water table on the project site. Based on visual observations of the soil samples, the Applicants determined that the mean seasonal high water table is between six and seven feet below ground surface. The visual observation of the soil samples is compatible with the results of Petitioners' soil augers obtained off the project site. As noted earlier, the proposed retention ponds will have a depth of three to four and one-quarter feet, which places the bottom of the ponds above the mean high water table as determined by the Applicants' calculations and as stated in the soils survey for Alachua County. Therefore, the dry retention ponds should not be considered impervious surfaces. Finally, Rule 40C-42.026(1)(d) requires that the retention system "[b]e stabilized with pervious material or permanent vegetation cover." The evidence shows that the proposed retention system will be stabilized with permanent vegetative cover. Other requirements and concerns Runoff from other developed properties in the vicinity of the proposed project site discharges into the Creek, contributing to erosion in the Creek. Not all of these existing developments have stormwater management systems on-site, since some of the older properties were built before the District assumed regulation over this activity. The proposed system can be effectively operated and maintained without causing or exacerbating the erosion problems that currently exist within the Creek system. This is because once the system is built, the amount of runoff leaving the site will be less than what is now present in the pre-development state. Thus, the project, as now designed, will not adversely affect drainage and flood protection on adjacent or nearby properties. Through the submission of a copy of the Articles of Incorporation and Declaration of Covenants for the Walnut Creek Homeowner's Association, the Applicants demonstrated that the District's requirements regarding the operation and maintenance of the proposed system after completion of construction will be met, as required by Rule 40C-42.027(4).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting application number 42-001- 71000-1 of Luther E. Blake, Jr. and Irene Blake Caudle for an Environmental Resource Permit. DONE AND ENTERED this 14th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Department of Environmental Regulation enter a final order finding that the proposed storm water discharge from the Fairfield Village site be determined to have no significant impact on the water quality of the state of Florida. It is further RECOMMENDED that the petition of the Concerned Citizens of West Escambia County, Florida, be dismissed for failure to establish by a preponderance of the evidence that its substantial interests will be adversely affected by the proposed discharge. DONE AND ENTERED this 23rd day of December 1980 in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December 1980.
The Issue The issue to be resolved in this proceeding concerns whether an on-site sewage disposal system ("OSDS") construction permit should be issued to the Petitioner based upon the question of whether the property lies within the ten- year flood elevation of the Suwannee River, and if so, whether an appropriate system can be designed which will remove the system an adequate distance above the ten-year flood elevation level and thus comply with Rule 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Allyn B. Giffin, wishes to construct a vacation-type, part-time residence on his lot lying in Dixie County, Florida, in the vicinity of the Suwannee River. The subject proposed disposal system site lies at the Suwannee River Water Management District's river mile no. 50 and the ten-year flood elevation for that site and river mile is 21 feet above mean sea level ("MSL"). The property also lies within the "regulatory floodway" of the Suwannee River, as regulated by the Suwannee River Water Management District, and may require a "works of the district" permit. The elevation of the surface grade at the subject site is approximately 17 feet, 7 inches above MSL, as shown by the survey of Herbert Raker, a certified land surveyor. Because the property lies within the regulatory floodway of the Suwannee River, the pertinent rule requires that an engineer certify that any mounding of the system to raise it above the flood plain and the regulatory floodway level will not cause any alteration in the base flood level in that regulatory floodway of the Suwannee River. Aside from being within the regulatory floodway and beneath the ten- year flood elevation, the property is amenable to the type of subsurface septic tank and drain-field system proposed. The water table at the time of the site evaluation performed by Mr. Fross, of the Department was 72 inches below the existing surface grade. Based upon mottling in the soil, the estimated wet season water table was 42 to 48 inches below surface grade. Since the surface grade elevation at the proposed site is 17 feet, 7 inches, and the ten-year flood elevation is only 21 feet, it was shown to be quite feasible to elevate the septic tank system in a filled mound and mound pad, such that the entire system could be raised the required regulatory distance above the ten-year flood elevation level. Mr. Ted Biddy was accepted as an expert witness in the field of civil engineering with emphasis on sanitary system engineering. He testified on behalf of the Petitioner. Mr. Biddy has designed a sewage disposal system for the Petitioner, which design is admitted into evidence, which is designed to be constructed and to operate above the ten-year flood plain elevation found above. The system is called a "mounded balancing system". It will consist of a raised earthen pad with a raised mound on top of that pad containing the septic tank and drain-field system at an elevation sufficient to maintain the required regulatory differential between the bottom elevation of the drain-field trenches and the ten-year flood elevation. This system was established by Mr. Biddy's testimony to avoid any deleterious effect on public health and environmental safety which might be posed by the sewage effluent entering the system if it were placed below the existing surface grade of the lot in question. The water table elevation is at a minimum of 42 inches below the surface grade of the lot; and if the proposed system were raised above the ten- year flood elevation, the bottom grade of the drain-field trenches would be at least five feet above the surface grade elevation of the lot at the proposed installation site, plus an additional 42 inches above the wet season water table level established by the testimony of Mr. Fross, who did the site evaluation for the Department. It was thus established that such a mounded system will meet all of the parameters contained in Chapter 10D-6 and, specifically, Rules 10D- 6.044-049, Florida Administrative Code, the rules as they applied at the time of application and hearing. Dr. Richard Hunter, testifying as an expert witness for the Department, had not seen this design until the day of the hearing. Upon reviewing it, he agreed that if such a system were installed on the lot in question, it would meet all of HRS regulatory parameters and would be permittable, at least for a two-bedroom dwelling. Mr. Biddy further established that even with a three-bedroom dwelling, as originally proposed by the Petitioner, because it would only have intermittent, occasional use as a vacation retreat, the sewage loading would be substantially less than would the loading from a normal three-bedroom, full-time residence. It is also true, as found above, that the property is in the regulatory floodway of the Suwannee River. Because of this, the Department's rule requires that an engineer certify that installation of such a mounded system will not raise the base flood level of the so-called "100 year flood". This is a balancing system, as described by Mr. Biddy, which involves the removal of approximately 877 cubic yards of fill material from the site or that portion of the site which lies within the regulatory floodway. This is an amount exactly equal to the required amount of fill to construct the mounded system, as proposed. Because of this, the addition of the 877 cubic yards of fill material for the mounded system will not cause additional displacement and resulting raising of the base flood level. Thus, the Department's rule in this regard will be complied with. This is because the fill material will replace an equal amount of material excavated from the lot in that portion below the regulatory floodway level, which excavated material will be removed from the regulatory floodway entirely, thus resulting in no net gain of fill material within the regulatory floodway and, therefore, no additional displacement or elevating of the base flood level. In summary, it has been demonstrated that the addition of the mounded system, as proposed by the Petitioner through the testimony of Mr. Biddy, will not pose any environmental hazards or any potential harm to public health and safety and will result in the sewage disposal system proposed being installed at an elevation properly above the ten-year flood elevation of 21 feet above MSL. The Department has interpreted the Executive Order of the Governor, 90-14, purporting to prohibit such systems beneath the 10-year flood elevation of the Suwannee River as requiring strict prohibition of such systems in those circumstances when it carries out its enforcement of the requirements of Rule 10D-6.047(6), Florida Administrative Code, the rule applicable to this permit application, hearing and circumstances. Further, the Petitioner has agreed to limit the size of his dwelling to a two-bedroom dwelling instead of a three- bedroom dwelling.
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 a Final Order be issued by the Department of Health and Rehabilitative Services granting a permit to the Petitioner, Allyn B. Giffin, authorizing the installation of an on-site sewage disposal system in the manner and under the conditions enumerated in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 29 day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of May, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4424 Petitioner's Proposed Findings of Fact 1-7. Accepted. Respondent's Proposed Findings of Fact The Respondent submitted no proposed findings of facts. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esq. HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Conrad C. Bishop, Jr., Esq. P.O. Box 167 411 N. Washington Street Perry, FL 32347
Findings Of Fact Respondent, Okaloosa County Board of County Commissioners, gave notice of a new storm water discharge to the Department for the proposed replacement of a 42" diameter storm water pipe with one 48" in diameter. Notice was given in letters, telephone calls and personnel meetings between representatives of Okaloosa County and the Department. Upon investigation of the project, the Department determined that the project would not significantly enlarge the storm water discharge system, nor enlarge the watershed which the system now drains. The Department also determined that the addition of an energy dissipater, a structure not now present at the discharge end of the pipe, would improve the performance of the discharge system by limiting the velocity of the storm water discharge to 2.3 feet per second. The Department determined that the new storm water discharge would not have a significant adverse impact on the water quality or designated uses of Gap Creek. On May 6, 1980, the Department issued to Okaloosa County a letter of intent to exempt the project from storm water licensing requirements. The Department considered the following in reaching its conclusion that the replacement of the existing pipe would not significantly affect water quality or designated usage: The use of an energy dissipater structure designed to limit the discharge velocity into Gap Creek to a maximum of 2.3 feet per second. The placing of sod around all storm water inlets associated with the pipe replacement to prevent the continued entry of sand into the system; and The pipe replacement and addition of the energy dissipater will not result in a significant enlargement of the existing storm water discharge system, nor otherwise result in the drainage of a larger area. The replacement of the drainage pipe by the county will not add to the amount of water entering Gap Creek, or significantly affect the quality of water in the Creek. Presently, storm water runoff travels within a county-owned drainage ditch and overflows at the point where the county intends to replace the existing 42" pipe. The present pipe is not capable of handling the amount of runoff in the ditch and this results in water overflowing the drainage ditch at the mouth of the pipe and traveling by natural contour to Gap Creek. The 48" replacement pipe and energy dissipater will allow a greater volume of water to remain in the drainage ditch and divert its flow away from the front and back yards of some Gap Creek residents.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, granting the applicant, Okaloosa County, an exemption from storm water licensing requirements for the installation of a 48" storm water pipe to replace an existing smaller pipe that enters into Gap Creek. DONE and ORDERED this 27th day of February, 1981, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, 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 February, 1981.
