The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Walker G. Miller, to construct an addition to his existing boat house of approximately 450 square feet, and an addition to his existing chain link fence, both of which are located on Lake Down, Florida. The Respondent, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioners, Milton and Gail Hess, and David Storey and others, have opposed the Department's intention to grant the permit.
Findings Of Fact The Petitioner in Case No. 80-1769, Milton Hess, is an adjacent landowner to the Applicant/Respondent, Walker G. Miller, with property located on Lake Down, near Windermere, in Orange County, Florida. The Petitioners in Case No. 80-1770, David Storey and others, are also landowners on Lake Down. Applicant's parcel is located on Down Point, which is a peninsular extending from the Lakes's southern shore. The project as contemplated by the Applicant is the construction of a 15 foot by 30 foot unenclosed addition on the north side of an existing dock/boathouse combination located on Lake Down. The 450 square foot addition is to be utilized as a storage room adjacent to the boathouse portion of his existing structure. The present structure has a total surface area of approximately 825 square feet. Additionally, by amendment to the application made on August 13, 1980, Applicant proposes to construct a chain link fence from the south property line to the dock facility. Lake Down is one of the waterbodies that constitutes the Butler Chain- of Lakes. The Lake is characterized by outstanding water quality and diversified biological resources. The Chain-of Lakes is widely recognized as the outstanding aquatic resource in the State, as far as water quality is concerned. Development on Lake Down is light, with widely scattered residential units separated by expanses of citrus groves. The construction of the addition will not significantly impact Lake Down or the Butler Chain-of Lakes, either on a long-term or short-term basis. The shading effect of the structure will result in a slight decline of rooted aguatic vegetation. However, such decline should be minimal. Further, reasonable assurances have been given that the proposed project would not result in any violations of State water quality criteria or standards. The existing dock structure now obstructs a portion of the view of the lake enjoyed by Petitioner Hess. However, by constructing the proposed addition on the north side of the existing boathouse, no further impediment of the view will occur.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be granted by the Department of Environmental Regulation to Walker G. Miller to construct an addition to his boathouse and a chain link Fence on Lake Down as more specifically described in his amended application. DONE and ENTERED this 2nd day of February, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1981. COPIES FURNISHED: David Storey Route 3, Box 929 Orlando, Florida 32811 Jack Ezzard and Kathryn Ezzard Route 3, Box 925 Orlando, Florida 32811 Tari Kazaros Route 3, Box 924 Orlando, Florida 32811 Mrs. H. D. Barrarly Post Office Box 203 Gotha, Florida 32734 Paula M. Harrison Post Office Box 203 Gotha, Florida 32734 Ava Careton Route 3, Box 926 Orlando, Florida 32811 Nikki Clagh Route 3, Box 928 Orlando, Florida 32811 Milton and Gail Hess 4413 Down Point Lane Windermere, Florida 32786 Walker G. Miller Post Office Box 348 Windermere, Florida 32786 B. J. Heller, Esquire 644 West Colonial Drive Orlando, Florida 32804 Richard D. Lee, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Is Petitioner entitled to a surface water permit modification without a maintenance requirement? Is Petitioner entitled to remove an 18-inch culvert which is required to remain in place by permit modification? Does the Division of Administrative Hearings (Division) have jurisdiction to grant the relief sought in this proceeding?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a corporation existing under the laws of the State of Florida that is in the business of, among other things, the production of citrus. Respondent is the agency of the State of Florida with the power and duty to exercise regulatory jurisdiction over administration and enforcement of surface water management systems pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Chapter 40D-4, Florida Administrative Code, within its defined area. Sometime after Petitioner had been granted the initial surface water permit, Respondent began to receive complaints of flooding from property owners adjacent to Petitioner's property. Respondent determined that there was a mistake in the original design due to Petitioner's engineer having stated that there was no off-site flow of water into Petitioner's grove. Respondent's engineer later noted off-site in-flows of water to Petitioner's property which originated at the northeast corner of Petitioner's property. In August 1990, to correct this problem, Petitioner's engineer (Tim L. Martin of Wiles and Associates) requested a modification of Permit No. 404628.01 by proposing that an 18-inch culvert be placed in the northeast corner of Petitioner's property to address 200 acres of off-site flows. Respondent approved this modification to the original permit and the 18-inch culvert was installed. During 1995 Respondent received complaints of flooding from Richard and Janet Harvin, property owners adjacent to Petitioner's property. To address the Harvins' drainage concerns, Dino Ricciardi, an engineer with the United States Department of Agriculture Natural Resource Conservation Service, recommended a spillway. Ricciardi estimated the off-site drainage area to be 400 acres plus or minus 20 per cent. This estimation was twice the amount estimated by Petitioner's engineer at the time of the permit modification permitting the installation of the 18-inch culvert. By letter dated July 28, 1995, Respondent advised Petitioner that the existing 18-inch culvert authorized by the permit modification may be undersized and requested Petitioner's presence at a meeting in Venice, Florida, to discuss concerns of flooding of adjacent properties. By letter dated March 25, 1996, Respondent provided Petitioner with a summary of items for consideration by the parties at the meeting on March 29, 1996, when developing corrective actions for the drainage resolution plan. By letter dated April 16, 1996, Respondent admonished Petitioner for its failure to comply with agreed-upon time frames for providing information concerning a structure at the northeast corner of Petitioner's property. On April 23, 1996, Petitioner's engineer, Jerry Bowden of Kelley and Bowden, Inc., responded to Respondent's letter of April 16, 1996, with a proposal to install a 42-inch culvert with a 54-inch riser. A drawing in this proposal indicated that the existing 18-inch culvert would be removed and a 42-inch culvert with a 54-inch riser would be installed. This drawing shows the 42-inch culvert to be entirely on Petitioner's property. Jerry Bowden estimated the pre-development basin relevant to flows through the proposed 42-inch culvert at 550 acres. Jerry Bowden also stated that the upland properties drained included the Lowe property and a smattering of other properties, including a couple of acres or so of the Harvin property. On May 23, 1996, Petitioner submitted plans attached to Respondent's proposed remedial action plan which indicated that the 18-inch culvert would be removed and a spillway constructed on property located north and northeast of Petitioner's property. By June 1996 Respondent had worked out a remedial action plan to address the concerns of all parties. The plan provided for the construction of a spillway at the northeast corner of Petitioner's property and other structures that allowed the flows to pass through Petitioner's property. The remedial action plan also provided for the construction of out-flow structures at the southwest corner of Petitioner's property that were sufficient to compensate for inflows of the open spillway. The remedial action plan was approved by James Guida, Director of Respondent's Venice Regulation Department. Petitioner and its western grove owner neighbors, the Harrisons, entered into an easement which allowed Respondent to enter the Harrison's land for the construction of the remedial action plan. By letter dated July 6, 1996, Janet Harvin, a property owner that would be affected by the remedial action plan advised Petitioner as follows: You have my permission to go on our property to do the work that Southwest Fla. Water Management approved, on condition that you make sure that we have received notification (2) two days ahead of time so that we may have our cows moved from that pasture. I also would like a representative (Mitch Malone) of SWFWMD and my husband or myself present at the time of the work. We will be responsible for taking the fence down and putting it back up. (Emphasis furnished) Construction on the remedial action plan began sometime in September or October 1996. By letter dated October 16, 1996, Respondent urged Petitioner to complete work on the remedial action plan noting that neighbors were complaining of flooding. Respondent demanded that Petitioner provide a completion date of October 25, 1996. By letter dated October 30, 1996, Jerry Bowden proposed leaving the existing 18-inch culvert and installing a 36-inch culvert with a 42-inch riser in place of the 42-inch culvert with a 54-inch riser. These two culverts would replace the spillway proposed in the remedial action plan. By letter dated November 1, 1996, Respondent advised Petitioner that Respondent would have no objections to Petitioner's proposal provided Petitioner could show that the 36-inch culvert and the 18-inch culvert would have an equal or greater conveyance capacity to that of the spillway. The Respondent also requested detail on a plan or section view drawing to show the scope of the work and calculations or pipe capacity charts to show adequate capacity to handle peak rates of run-off. Respondent assured Petitioner that it would expedite its review of this material. After the November 1, 1996, letter, there was no further contact between Respondent and Petitioner concerning this matter prior to Petitioner's installing the 42-inch culvert. On November 19, 1996, the Harvins discovered that the 42-inch culvert with the 54-inch riser had been installed on their property by Petitioner's engineer, Jerry Bowden. Jerry Bowden knew prior to installing the 42-inch culvert that the culvert could not be installed entirely on Petitioner's property. While the Harvins had given Petitioner permission to go onto their property for certain work approved by Respondent set- out in the remedial action plan, the Harvins never gave Petitioner express or implied consent for the installation of the 42-inch culvert on their property before or after its installation. In fact, Janet Harvin swore out a trespass complaint against Ed Safron, Petitioner's president. Petitioner did not receive prior approval from the Respondent before installing the 42-inch culvert with the 54-inch riser on the Harvins' property. Based on his calculation of the watershed area, Jerry Bowden was of the opinion that the 42-inch culvert was sufficient to handle the off-site flows without the aid of the 18-inch culvert. However, Bowden testified there were other studies that had not been performed that could possibly produce data that would change his opinion that the i8-inch culvert was not needed to handle the off-site flows. On December 10, 1996, Petitioner applied for a letter modification of its permit for the 42-inch culvert it had previously installed on the Harvins' property without approval of either Respondent or the Harvins. This letter application described the project for which permitting was sought by referring to two previous letters dated April 23, 1996, and November 12, 1996. It was indicated in the November 12, 1996, letter that the 18-inch culvert would remain in-place unless at a later date conditions warranted its removal. Subsequent to this letter application, Respondent requested information from Petitioner concerning the maintenance issue. Petitioner did not respond to this request. By letter dated January 13, 1997, the Harvins notified Respondent that as a result of the construction of the 42-inch culvert rather than the spillway and as a result of Petitioner's failure to comply with the conditions in their letter of July 5, 1996, the Harvins would not grant Petitioner blanket permission for maintenance of the structure which Petitioner placed on their property without permission. However, the Harvins did indicate that they would allow maintenance on a case- by-case basis. By letter dated February 6, 1997, Janet Harvin advised Petitioner as follows: This letter is to revoke any and all permission that you could possibly think you have or anyone connected with you could have now, in the past, or in the future, come on our property without explicit permission from my husband or myself. On December 12, 1997, Petitioner issued the letter modification challenged herein which authorized the 42-inch culvert and required that the 18-inch culvert remain in place. The letter modification also placed the burden of maintenance of the system on Petitioner. There is insufficient evidence to show that the 42-inch culvert in combination with the 18-inch culvert is generating an excessive amount of off-site in-flow onto Petitioner's property or that the off-site in-flow onto Petitioner's property has resulted in damage to Petitioner's property or to Petitioner's citrus grove on that property, notwithstanding the testimonies of Edwood Safron or John Douglas to the contrary. Respondent's staff testified that based on their walking the watershed in December 1998, it appears that the watershed that drains to the northeast corner of Petitioner's property is between 300 and 350 acres and that the 42-inch culvert would be adequate from a conveyance standpoint. However, since the Harvins are insisting that the 18-inch culvert remain in place if there is going to be some type of agreement for Petitioner to go onto the Harvins' property to maintain the system, it is necessary that further studies be completed to determine more accurately the need for the 18-inch culvert. On November 23, 1998, Respondent invited Petitioner to apply for a permit modification if it had an expert who could state that the system minus the 18-inch culvert met rule criteria. On December 28, 1998, Petitioner filed a Modification of Permit by Letter with Respondent. There is insufficient evidence to show that the Harvins or any other upstream adjoining landowner had engaged in any unpermitted self-help drainage or that the Harvins or any other upstream adjoining landowner had materially diverted surface drainage onto Petitioner's property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the requested modification. DONE AND ENTERED this 23rd day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1999. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 J. Michael Rooney, Esquire Post Office Box 510400 Punta Gorda, Florida 33951-0400 Patricia J. Hakes, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact The Parties. Respondent, Springs on Kings Bay (hereinafter referred to as "Springs"), is a condominium association representing 12, single-family, condominium owners located on Hunter Spring Run. Hunter Spring Run is a tributary of Crystal River. The Springs and Hunter Spring Run are located in Citrus County, Florida. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. The Petitioners are the owners of real property located north of the Springs' property. The Petitioners' property is located at the waterward edge of North West Third Street, Crystal River, Citrus County, Florida. By water, the nearest point of the Petitioners' property to the proposed facility is approximately 2,600 feet. The evidence failed to prove that access to Crystal River from the Petitioners' property involves use of Hunter Spring Run, that the Petitioners are required to pass near the proposed facility or that the Petitioners ever pass near the proposed facility. The Springs' Application for Permit. On or about December 31, 1991, the Springs applied to the Department for a permit to construct a 1,423 square foot private docking facility with twelve slips, and a 564 square foot private docking facility with six slips. Both facilities were to be located on Springs' property located on Hunter Spring Run. Due to Department concerns, the proposed project was subsequently modified to delete the six-slip docking facility and reduce the twelve-slip facility to 975.6 square feet. The Springs also agreed, as a condition for obtaining the permit, to establish a conservation easement of approximately 504 feet of lineal shoreline in and adjacent to Hunter Spring Run. On or about July 22, 1993, the Department issued a notice of intent to issue the permit sought by the Springs. A copy of the proposed permit, permit number 09-207432-3, was attached to the notice of intent to issue. On or about August 5, 1993, the Petitioners filed a letter challenging the Department's decision to issue the permit. The Proposed Facility. Hunter Spring Run is a Class III water body designated as an Outstanding Florida Water. The proposed facility will consist of a 5' X 30' access walkway, 4' X 119' main pier constructed parallel to the shoreline, two 4' X 18" access piers and two 3' X 39" finger piers mounted on 12-inch diameter pilings. The piers will be constructed on pilings driven into the river bottom. The proposed facility will serve residents of the Springs. One boat slip per resident is proposed. The site of the proposed facility is in water with a depth greater than 3 feet. Submerged aquatic vegetation consists primarily of hydrilla verticillation, which is not a native species. The area where the facility is to be constructed is substantially void of other aquatic vegetation. The shoreline in the area of the proposed facility is relatively steep with a limited transitional area of wetland type species. Water depth drops off relatively quickly to approximately 4 feet. Hunter Spring Run is approximately 160.69 feet wide at the proposed facility site. The proposed facility will extend over approximately 24.3 percent of the width of Hunter Spring Run at the site. The main navigation channel of Hunter Spring Run is primarily located adjacent to the opposite shore from the proposed facility. The property in the immediate area of the Springs' property is generally developed for single-family and multifamily residences. Impact on Water Quality Standards. The weight of the evidence proved that the proposed facility will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department and Springs concerning the impact on water quality standards was uncontroverted by the Petitioners. While there will be some turbidity associated with installation of pilings, it will be temporary, lasting only a few days, and steps will be taken to minimize the turbidity. A turbidity curtain will be utilized. Boat maintenance is prohibited at the facility by the conditions of the proposed permit. Impact on Public Health, Safety and Welfare or the Property of Others. The weight of the evidence proved that there will not be any adverse impact on public health, safety or welfare, or the property of others. By agreeing to an easement of approximately 504 feet of lineal shoreline, the potential impact from docks in the area will be substantially reduced. Section 403.813, Florida Statutes, exempts the construction of single- family docks of 500 square feet or less under certain circumstances. Several such docks could have been constructed along the area subject to the easement. Potentially, a dock could be built every 65 feet of shoreline. By granting the easement, the potential number of docks and slips along Hunter Spring Run has been reduced. Therefore, the proposed project will be of benefit to public health, safety and welfare, and the property of others. While the Petitioners suggested that the proposed facility will have an adverse impact on the "property of others," they failed to prove what that impact will be. In particular, the Petitioners suggested that the facility will have an adverse impact on their property apparently because the Petitioners believe that the construction of the facility will reduce the number of slips they may be allowed to construct or maintain at their property. The evidence, however, failed to prove that this "economic" impact will materialize, or is likely to, or that, if it does, such impact should prohibit the Department from issuing the permit. Affect on Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The weight of the evidence proved that the impact on conservation of fish and wildlife, including endangered or threatened species will be minimal. The Petitioners offered no evidence to counter this finding. Crystal River is frequented by manatees. Manatees are an endangered species. The area where the proposed project will be located, however, has not been designated by the U.S. Army Corps of Engineers as an essential habitat (an area where manatees breed and feed) for manatees. The possibility of any impact on manatees will be minimized. Construction will be allowed at a time of year intended to avoid impact on the manatees. Construction precautions will be taken to avoid any impact on manatees. If a manatee is sighted during construction, all construction must cease until the manatee leaves the area. Boats will be required to observe a "no wake/idle speed" at all times to reduce the potential of harming manatees. Logs of sightings of manatees are to be maintained and reported to the Department. Signs with information concerning manatees will be posted during construction and after construction. The design of the proposed facility will minimize potential impacts on manatees. There is a lack of vegetation to attract feeding by manatees or fish or other wildlife near the proposed project. The Springs has a former Department of Natural Resources consent of use for the project. Affect on Navigation and the Flow of Water and Whether Harmful Erosion or Shoaling will be Caused. The evidence proved that there will not be any negative impact on navigation or the flow of water and that there will not be any harmful erosion or shoaling caused by the proposed project. These will be adequate water depth and width between the furthest point of the dock and the far shore for the passage of boats. Boats are prohibited by the permit conditions to be moored outside of designated moorings. This will reduce the possibility of prop dredging. The conservation easement will also reduce the potential for harm to navigation which could occur if single-family docks were constructed along the shore of the easement. The conservation easement also will insure that 504 linear feet of shoreline remains protected and natural. Affect on Fishing or Recreational Values or Marine Productivity. The proposed project will increase recreational use of the area. It will not adversely impact marine productivity or fishing. I. Temporary or Permanent Project. The proposed project is for a permanent structure. Affect on Significant Historical and Archaeological Resources. There will not be any impact on significant historical or archaeological resources. Affect on the Current Condition and Relative Value of Functions Being Performed by Areas Affected by the Project. The proposed project will not adversely affect current conditions or the relative value of functions being performed by areas affected by the project. Cumulative Impact. Cumulative impact from the proposed project in the area should be minimal. Because of the conservation easement, the cumulative impact of the proposed project will be in the public interest due to the decrease in the potential number of boat slips in the area. There should not be any cumulative impacts to water quality or the public interest standards of Section 403.918(2), Florida Statutes. Standing of the Petitioners. The Petitioners failed to prove that their interest in the proposed project is any greater than any member of the public. The Petitioners' property is located approximately 2,600 feet away from the proposed project. A small peninsula, on which the Springs' property is located, separates the proposed project from the Petitioners' property. The Petitioners did not offer evidence to prove that they use the area where the proposed project is located or that any use for the proposed project will directly impact their property. Ms. Toms suggested that the proposed project will reduce the number of slips the Petitioners may construct or maintain at their property. The evidence, however, failed to prove that the proposed project will have any impact on such construction or maintenance (if allowed) on their property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and issuing permit number 09-207432-3 to Springs on Kings Bay. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 6th day of April, 1994. APPENDIX Case Number 93-5724 Springs and the Petitioners have submitted proposed findings of fact. The Department has adopted the proposed findings of fact of the Springs by reference. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact 1 These proposed findings are not supported by the evidence accepted during the final hearing of this case. Most of these proposed findings are also not relevant to this proceeding. The issue of who owns the Petitioners' property cannot be resolved in this case. 2-3 Not a proposed finding of fact. These paragraphs consist of arguments of law. Those arguments are not relevant to this proceeding. 4 Not supported by the weight of the evidence and not relevant. The Springs' Proposed Findings of Fact Accepted in 1, 4-6 and 9. Accepted in 1-2, 9 and hereby accepted. Accepted in 6 and 10. Accepted in 12-13, 22 and hereby accepted. 5 Accepted in 11, 18-19, 26-30 and 33. There was no proposed finding of fact 6. Hereby accepted. Accepted in 1, 17 and hereby accepted. Accepted in 14-16. Accepted in 2, 23, 47-48 and hereby accepted. Accepted in 11, 13, 18-19 and hereby accepted. Accepted in 25 and hereby accepted. Accepted in 25, 28 and hereby accepted. Accepted in 31-32 and hereby accepted. Accepted in 33-38 and hereby accepted. Accepted in 34. Accepted in 38. Accepted in 33 and 46-48. 19 See 23 and 46-48. 20 Accepted in 23 and 43-48. 31 Cumulative. COPIES FURNISHED: Harold and Charlotte Toms 11364 West Indian Woods Path Crystal River, Florida 34428 Clark A. Stillwell, Esquire BRANNEN, STILLWELL & PERRIN, P.A. Post Office Box 250 Inverness, Florida 34451-0250 Keith C. Hetrick Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether Respondent, the Southwest Florida Water Management District (District), should grant Environmental Resource Permit (ERP) No. 43023532.000 authorizing Respondent, Florida Department of Transportation (DOT or Department), to construct the Pinellas Bayway Bridge Replacement and associated surface water management system.
Findings Of Fact The Florida Department of Transportation is a state agency charged by statute with the construction, maintenance, and operation of the State Highway System. The Pinellas Bayway Bridge in Pinellas County, Florida, is part of the State Highway System. The Southwest Florida Water Management District is a political subdivision created pursuant to Chapter 61-691, Laws of Florida (1961), which exists and operates under the Water Resources Act, Chapter 373, Florida Statutes. The District has the regulatory authority to implement the ERP program in Pinellas County, Florida. The existing Pinellas Bayway Bridge (the Existing Bridge) is a two-lane bascule structure located within and spanning Boca Ciega Bay, an Outstanding Florida Water. It has three-foot wide walkways on both sides, with no shoulders for the travel lanes. The Existing Bridge connects the cities of St. Petersburg and St. Pete Beach, and was built approximately 40 years ago upon perpetual easements "for public State Road right of way purposes" conveyed in 1960 and 1961 from BOT/IITF to the State Road Department, the predecessor of the Department. The perpetual easements do not contain any restrictions on the perpetual right to construct and maintain a "public state road upon and/or over said land," other than conditions that recognize prior rights of the United States of America and prior grants by the Board of Trustees. The proposed replacement of the Existing Bridge will be located entirely within the boundaries of those perpetual easements. The practice and policy of the Board of Trustees of the Internal Improvement Trust Fund (BOT/IITF), and the Department of Environmental Protection (DEP), has been that, under Section 253.002(1), Florida Statutes, perpetual easements such as those conveyed for the Bayway Bridge are sufficient authorization for expansion of bridges within the boundaries of the perpetual easements. Since the time of construction of the Existing Bridge, the area served by it has transformed from a largely uninhabited barrier island to a densely developed area. The Department has been studying and preparing for replacement of the Pinellas Bayway Bridge since the early 1980's, and studying alternatives since the early 1990's. In the year 2000, with the concurrence of the Pinellas County Metropolitan Planning Organization, the cities of St. Petersburg and St. Pete Beach, and the United States Coast Guard, the Department determined that the best alternative for replacing the Existing Bridge was a fixed-span, high level bridge with four travel lanes and a pedestrian walkway along the southern side of the bridge (the Replacement Bridge or Project). The fixed-span alternative was selected as superior to low-level and mid-level bascule options for superior traffic efficiency, superior access for emergency vehicles, superior emergency evacuation, and improved boat traffic. As part of the design process of the Replacement Bridge, the Bayway Bridge Beautification Committee was formed to provide the Department with input from the residents as to the aesthetics of the Replacement Bridge. The Bayway Bridge Beautification Committee was made up of representatives from the neighborhood and homeowners associations in the area, and submitted a report containing suggested improvements that were incorporated into the ultimate design of the bridge, including lighting, hardscape, and landscape features. Each of the three replacement alternatives (low-level, mid-level, or high-level) would result in the elimination of parking spaces within existing Department right-of-way adjacent to the east and west ends of the Existing Bridge. These parking spaces are intended for the use of drawbridge tenders and Department maintenance vehicles; currently, they also are utilized by fishermen and others recreating on the Existing Bridge. Neither the cities of St. Petersburg nor St. Pete Beach provides public parking in the vicinity of the Existing Bridge. Navigation and Shoaling The height of the Replacement Bridge will allow all boats using the Intracoastal Waterway (ICW) with mast heights of less than 65 feet to freely go under the bridge. Large boats currently must wait for the Existing Bridge to open and have to either circle or move forward and backward while waiting for the drawbridge to open. This will not be the case with the proposed bridge. The fenders lining the channel crossing under the proposed bridge will also be widened to 100 feet from the existing 90 feet. The Replacement Bridge also will be higher in places other than the ICW crossing, including 39 feet high near the west end where Mud Key Channel crosses (versus 9 feet under the Existing Bridge). As a result, more boats will be able to pass under the Replacement Bridge in Mud Key Channel than with the Existing Bridge, and fewer will have to use the so-called Entrance Channel paralleling the south side of the bridge between the ICW and Mud Key Channel. In this respect, the Replacement Bridge will improve navigation. Petitioners contend that additional use of Mud Key Channel, coupled with changes in the ability of boaters to see other boats on the opposite side of the bridge will change, will create a navigation hazard and safety concern for boaters, wading fishermen, and occasional swimmers using Mud Key Channel and the Entrance Channel. As for wading fishermen and occasional swimmers, their activities occur mostly to the south of the extreme western end of the bridge, and boats using Mud Key Channel would pass them whether they pass under bridge at Mud Key Channel or pass under at the ICW and use the Entrance Channel to or from Mud Key Channel. The Replacement Bridge will not increase the number of boats passing by them. As for boaters' ability to see, the Existing Bridge is lower, has more but narrower pilings. The higher Replacement Bridge will have fewer pilings but they will be wider, including 22 feet square pile caps 7 feet high at the water line. In terms of boaters' ability to see through the bridge, the Existing Bridge and Replacement Bride have advantages and disadvantages, depending on the particular circumstances and location of the boats, wading fishermen and occasional swimmers in question. It was not proven that the Replacement Bridge, compared to the Existing Bridge, will create navigation hazards and safety concerns. The Replacement Bridge will extend some 70 feet into the Entrance Channel to Mud Key Channel. Currently, the width of the Entrance Channel is 215 feet, narrowing to 130 feet at the junction with Mud Key Channel. The width of Mud Key Channel at some points is only 100 feet. The Replacement Bridge will narrow the Entrance Channel to a minimum width of 145 feet, will not affect the width at the junction with Mud Key Channel, and will not affect the width of Mud Key Channel itself. The currents in this area are felt least within the Entrance Channel. Boats are currently able to pass each other safely in the Intercoastal Waterway and the narrow confines of Mud Key Channel, which are both narrower than the Entrance Channel will be upon completion of the Project. Boats with masts higher than 65 feet will not be able to go under the Replacement Bridge. Petitioner, Michael T. (Ted) Irwin, has a boat with a 90-foot mast (with radio antenna), which he keeps at his residence north of the bridge site. Once the Replacement Bridge is constructed, he will have to either access the Gulf of Mexico by heading north through Johns Pass, or move his boat to another mooring location. Mr. Irwin testified that Johns Pass, while navigable in his boat, is much more difficult and much less desirable for him than going through the drawbridge at the Existing Bridge. There are over 11,000 boat crossings per year by boats with masts too tall to pass under the Existing Bridge. Of these 11,000, Mr. Irwin's boat accounts for 20 to 60 of those crossings. Mr. Irwin testified that there are three or four other boats in the area with masts taller than 65 feet. Even assuming that those boats are kept north of the bridge site, which was not clear from the evidence, there was no evidence as to the extent to which those boat owners would be inconvenienced by having to use Johns Pass, or as to whether they could make suitable alternate arrangements. Clearly, the Replacement Bridge will have some impact on navigation. While the Replacement Bridge will require Mr. Irwin to change his current boating practices, and while the Entrance Channel will be narrower, the impact on navigation in the area will generally be positive. For the vast majority of boaters, boat traffic will move more freely through the area and, at least in some circumstances, with better visibility. With respect to sediment transport or shoaling, the Department introduced evidence in a bridge hydraulics report showing that the Replacement Bridge would not experience scour around the pilings during either a 100- or 500-year storm event. In addition, there was expert testimony that harmful erosion or shoaling would not occur as a result of the Project. Petitioners offered only speculation on the likelihood of erosion or shoaling, candidly admitting that their concern was that such conditions "might" occur. There is an undisputed evidentiary basis to conclude that sediment transport or shoaling will not occur around the Replacement Bridge. Fishing and Recreation People currently fish from the Existing Bridge using the two three-foot wide catwalks. Although not designated for public parking, people who do not live within walking distance of the bridge site currently park on either end of the Existing Bridge within the Department's right-of-way. All of these parking spaces will be eliminated by the Replacement Bridge; but they would be eliminated under all designs considered, including a low level drawbridge. Other bridges in immediate vicinity are not used for fishing due to lack of nearby parking. Fishing will be allowed from the Replacement Bridge from the single 11-foot wide multi-use path along the south side of the Replacement Bridge. While the multi-use path will allow fishermen and other users to get farther away from passing car traffic, fishing on strong incoming (south-to- north) tides will be less desirable from the south side of the Replacement Bridge, and the higher bridge elevations also will make fishing generally less desirable. There are several other locations within 20 minutes of the Existing Bridge that are available for fishing by the public. In particular, the fishing pier at the old Skyway Bridge in southern Pinellas County is specifically designated for public fishing, as are several other locations. The Replacement Bridge's multi-use path also will be more user-friendly for people who want to walk or bike across. Also, the path will continue from the bridge site to the intersection of State Roads 679 and 652, providing a safe sidewalk where none currently exists. The path will ultimately tie into a trail system linking the area to Fort DeSoto Park. The Replacement Bridge will also be more wheelchair accessible than the Existing Bridge. Water Quality Boca Ciega Bay is an Outstanding Florida Water. The ambient existing water quality in Boca Ciega Bay meets the standards which are applicable to that waterbody in the location of the Replacement Bridge, as demonstrated by the water quality data gathered from Pinellas County and by the Department. Such data were comprised of dissolved oxygen readings from the County and the analysis of water samples provided by the Department. Petitioners questioned whether such water quality data were sufficient, but testimony from District experts demonstrated the sufficiency of these data. Petitioners introduced no evidence to indicate that water quality does not meet standards in the vicinity of the Project. Within the limits of the Project, including the bridge site, the western approach to the bridge, and State Road 679 to the intersection of State Road 652 of the eastern side of the bridge site, there currently is a very limited amount of surface water runoff treatment. Although the project will involve adding several acres of impervious surface, after construction there will be less untreated surface water runoff than exists currently. The proposed treatment system will primarily involve three ponds: two lined effluent filtration ponds along State Road 679; and a wet detention pond located adjacent to the Sunshine Skyway Bridge, known as the compensation pond. The compensation pond is proposed because there is not enough right-of-way in the project area to build ponds or other treatment systems to treat the runoff from the Replacement Bridge. The compensation pond will treat surface water runoff from the Skyway Bridge that today is discharged untreated into the same Outstanding Florida Water, Boca Ciega Bay. The two effluent filtration ponds will be lined with an impermeable material up to the level of seasonal high ground water elevations within the vicinity of those pond sites to prevent groundwater drawdown and prevent interaction between water in the pond and groundwater. DOT introduced detailed site plans, engineering studies and credible expert engineering testimony that the three stormwater treatment ponds will detain stormwater runoff in a manner that complies with the presumptive criteria in the District's Basis of Review. In addition, the two effluent filtration ponds have been oversized so as to treat 100 percent more volume than is required for treatment systems discharging into Outstanding Florida Waters. Less untreated surface water runoff will be discharging into Boca Ciega Bay after construction than is today. Further, much of the impervious area to be added will not be automobile travel lanes, and these areas will not generate the heavy pollutant loadings associated with the travel lanes. In addition, the pollutant loading from the travel lanes on Replacement Bridge will be less than from the Existing Bridge. At the Existing Bridge, pollutant discharge into Boca Ciega Bay occurs in several ways. First, oils and greases from the actual drawbridge mechanism itself drip straight down into the Bay. With the elimination of the drawbridge, this discharge will stop. Second, stopped cars and trucks waiting for the drawbridge to open and close drip oils and greases onto the roadway in greater concentrations than traffic which is moving. This was evident by examining photographs of the travel lanes on either side of the drawbridge, and the dark staining of the roadway where traffic is stopped. With no drawbridge to stop traffic, less oil and grease will be discharged. Third, boats waiting for the existing drawbridge to open also discharge undetermined amounts of uncombusted gasoline and oil into the water. (Generally, their engines are kept running and in and out of gear to maintain steerage while waiting for the bridge to open.) Those boat engines will have to run for less time in the vicinity of the Project if the boats do not have to wait for the existing drawbridge, thus reducing the discharge of uncombusted gasoline and oil into the Bay. Another boost to water quality will occur as a result of the mitigation for the Project. District rules allow impacts to wetlands and other surface waters to be mitigated, and the Department does so in accordance with the program set forth in Section 373.4137, Florida Statutes. That program calls for the Department to contribute a dollar amount to the District based upon the expected acres of wetlands and other surface waters impacted by the project. Mitigation provided for this purpose in accordance with Section 373.4137, Florida Statutes, and approved by the Secretary of DEP, is deemed to satisfy mitigation requirements. In this case, the mitigation project to compensate for impacts by the Replacement Bridge to sea grass beds within the affected surface waters is a water circulation project at Fort DeSoto Park, located at the southern end of Boca Ciega Bay, in the same receiving waters where the impacts will occur. The project consists of opening a dead-end section of the Bay created by the SR 679 causeway to Fort DeSoto Park to improve water flow. Improved water flow will improve dissolved oxygen levels, which in turn will improve conditions for sea grasses, which will in turn lead to more dissolved oxygen. This Project has been approved by separate final order by DEP, satisfying the mitigation requirement. In addition, the Department and the District demonstrated that the mitigation project will improve water quality in the receiving waters. The Project will not degrade water quality in Boca Ciega Bay, and the record is also clear that the Project will actually improve water quality in the Bay. This means that the Project is consistent with the Surface Water Improvement Management Plan adopted by the District, which calls for improved water quality and increased sea grasses. Petitioners called no witnesses with respect to the water quality issue. Although Petitioners listed a water quality expert, James Shirk, as a witness in answers to interrogatories, and even though Respondents deposed Mr. Shirk; Petitioners not only decided not to call Mr. Shirk as a witness, they objected to introduction of Mr. Shirk's deposition into the record of the case. In their PRO, Petitioners criticized a lack of studies to determine the efficacy of proposed Ponds 1 and 2 and the Compensation Pond. They also criticized a lack of studies of water quality impacts of untreated discharges from a 18-inch pipe to be constructed at the western end of the bridge. They argue that, due to the asserted lack of studies, reasonable assurances were not given either that the Project will not degrade water quality or that it will result in a net improvement in water quality. But, based on the evidence in this case, studies of the kind Petitioners want to require were not necessary to prove that the Project will not degrade water quality but rather will result in a net improvement in water quality. In their PRO, Petitioners also cited the deposition testimony of Jeremy Craft that Ponds 1 and 2 discharge into Class III waters "in the vicinity of a Class II water body" and criticized the lack of a "plan or procedure with respect to protection of the Class II waterbody that demonstrates that the regulated activity will not have a negative impact and will [not] result in violations of water quality standards in such Class II waters, as required in the District's Basis of Review [BOR] Section 3.2.5(b)." But there was no other evidence that Ponds 1 and 2 will be a "regulated activity" or "system" that is "adjacent or in close proximity to Class II waters." To the contrary, the evidence that the nearest Class II waters were over a mile away from the Project site and would not be affected negatively by the Project. Similarly, Petitioners in their PRO contend that the Compensation Pond "discharges to Class II waters and waters that are prohibited for shellfish harvesting" and that "[t]here has been no plan or procedure provided with respect to protection of that Class II waterbody that demonstrates that the regulated activity will not have a negative impact on Class II waters and will not result in violations of water quality standards in such Class II waters, as required in the BOR Section 3.2.5(a) and (b)." The basis cited for this criticism was reference to "Shellfish Harvesting Area Classification Map #42 (Effective: June 18, 1997)," that appears to show the Compensation Pond adjacent to or in close proximity to an area where shell fishing is prohibited. There was no testimony explaining the map, which did not purport to map Class II waters. In any event, if the Compensation Pond is "adjacent or in close proximity" to Class II waters which are not approved for shellfish harvesting, and if it is considered to be the "regulated activity" or "system," creation of the Compensation Pond to treat previously untreated discharges will not have a negative effect on Class II waters or result in violations of water quality standards in the Class II waters. Petitioners in their PRO also cite the Final Roadway Soil Survey and Stormwater Pond Report (Report) prepared by the Department's consultants for the purpose of establishing the fact: "Groundwater data beneath the roadway near the east end of Pond 2 indicate that the seasonal high groundwater table is between 4.0 and 4.5 feet, NGVD." Although never made explicit, Petitioners' PRO seems to raise the specter that the liner for this pond was deficient because it only came up to 2.5 feet, NGVD. No witness explained where the Report establishes the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2," or if it even does. It appears that Sheet 9 of Appendix B of the Report indicates a single datum point of groundwater at approximately 4.0 feet, NGVD, on June 1, 2002; meanwhile, Table 4 of Appendix A of the Report also states that the "Estimated Seasonal High Groundwater Table" at the same location is at the "Approximate Elevation" of 1.2 feet, NGVD. In any event, even assuming that the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2" were 4.5 feet, NGVD, all of the expert testimony on the subject of the liner was that it came up high enough to function properly in the location of Pond 2. The last water quality issue raised in Petitioners' PRO addresses the amount of impervious surface runoff treated under the Replacement Bridge Project. Specifically, Petitioners seem to contend that BOR 5.8(b) was interpreted to only require treatment of the runoff contributed by the two additional automobile travel lanes provided by the Replacement Bridge Project; the area of the existing travel lanes and the multi-use path was not figured in the calculation. While not clearly explained, the expert testimony was that the Project met the requirements for water quality treatment under both BOR 5.2.e. and BOR 5.8(b) and (c). BOR 5.2.e. requires projects discharging into Outstanding Florida Waters to provide treatment for a volume 50 percent more than otherwise required for the selected treatment system. BOR 5.8(b)1. requires that, for "off-line treatment systems and on-line treatment systems . . . which provide storage of the treatment volume off-line from the primary conveyance path of flood discharges," the contributing area to be used in calculating the required treatment volume is the area of new pavement. It appears that BOR 5.8(b)1. was used for the parts of the Project not treated by Ponds 1 and 2. The "area of new pavement" was considered, for purposes of BOR 5.8(b)1. to be just the new travel lanes; the area of the multi-use path apparently was not added for purposes of BOR 5.8(b)1. because it would not be expected to add much, if any, pollutant loading. In addition, BOR 5.8(c) provides: When alterations involve extreme hardship, in order to provide direct treatment of new project area, the District will consider proposals to satisfy the overall public interest that shall include equivalent treatment of alternate existing pavement areas to achieve the required pollution abatement. While also not clearly explained, the expert testimony was that BOR 5.8(c) also applied and was met by the Project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Individual Environmental Resource Permit No. 43023532.000. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2003. COPIES FURNISHED: Robert C. Downie II, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 William D. Preston, Esquire 2937 Kerry Forest Parkway Suite B-1 Tallahassee, Florida 32309-6825 Steve Rushing, Esquire David C. Ryder, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about August 1, 1978, respondent Pilot Properties, Inc. filed an application with the Department of Environmental Regulation for the issuance of a construction permit to expand and enlarge a wastewater treatment facility from 18,000 gallons per day to 150,000 gallons per day. The DER issued its notice of intent to issue the permit on November 13, 1978, and the Perdido Key Development Association, Inc. timely requested a hearing on said notice. Over the objection of respondent Pilot Properties, Southwest Escambia Improvement Association, Inc. was joined as a party petitioner. The Perdido Key Development Association, Inc. subsequently withdrew as a petitioner. The remaining petitioner, Southwest Escambia Improvement Association, Inc. is comprised of members who reside on, own property on or have a business interest in Perdido Key. Among its purpose are the improvement of the Perdido Key community and the protection of the environment. The members of the Association utilize Old River for recreational and commercial purposes. The proposed expanded facility is designed to serve cluster homes and condominium complexes on Perdido Key, for a total of approximately 428 units. It will utilize a contact stabilization process whereby raw sewage enters the plant from the individual units, receives treatment and then the effluent is discharged evenly through a spreader or equalizer into two percolation ponds continuing approximately 54,000 square feet. The facility is designed to remove 95 percent of B. O. D. and suspended solids. The plant is not designed to remove nutrients. The percolation ponds serve as a disposal device, and not a treatment device. The ponds are to be constructed at an elevation of six feet. Considering fluctuation, the percolation pond bottoms will be separated from the groundwater by three feet. It is an accepted DER guideline to require a three foot separation between the groundwater and a percolation pond. The conditions of the proposed permit require that a three foot buffer zone be maintained between the bottom of the ponds and the maximum groundwater elevation. The nearest edge of the percolation pond will be located approximately 105 to 110 feet from the water line of Old River. The effluent will be discharged from the plant to the percolation pond and then to the groundwater, which ultimately flows in the direction of Old River. Groundwater monitoring wells are provided to measure the level of nitrogen. The soil on Perdido Key is course-type sand, with little clay or silt. It has a very rapid vertical percolation rate. According to the respondent's witness who qualified as an expert in ecology and botany, the process of adsorption, precipitation and denitrification which occurs as groundwater moves horizontally will prevent the degradation of Old River. This witness observed no suspicious levels of phosphate in samples from Old River. This witness observed no suspicious levels of phosphate in samples from Old River. He found the phosphate nitrate and fecal chloroform level of Old River comparable to that found in other clean water bodies. The petitioner's witness who qualified as an expert in aquatic ecology took samples of groundwater and sand from various areas on Perdido Key to analyze their nitrate and phosphate content. It was his conclusion that phosphate was not attenuated by the sands and that nutrients, particularly phosphate, are being discharged into Old River from sewage treatment facilities existing on Perdido Key. He observed a shifting of the composition of flora in Old River near the site of another existing sewage treatment facility which was not designed to remove nitrates or phosphates. However, the other existing facility was not shown to be comparable in the size of its percolation ponds, the pond elevation from the groundwater or in the manner of discharge form the plant to the percolation pond. This witness did agree that the spreading or equalizing method of discharging effluent from the plant to the 54,000 square feet of percolation ponds could delay the entrance of nutrients to Old River by as much as five months. The petitioner produced a witness who was skilled in the operation and maintenance of wastewater treatment plants similar in design to that proposed by respondent Pilot Properties. This witness testified that this type of facility required greater operating time due to difficulties encountered by hydraulic imbalances on clarifiers and the upward flow of discharge. The witness had no knowledge as to the future operating plans of the respondent. The two respondents presented witnesses who were qualified as experts in the areas of design and construction of sewage treatment systems. Both witnesses had reviewed the subject permit application and were of the opinion that if the proposed plant is constructed as designed, it will meet the minimum treatment standards required by DER's statutes and rules. The application submitted by Pilot Properties was for the issuance of a construction permit. Among the conditions of the proposed issuance of such a construction permit is a requirement that the permitted obtain an operation permit sixty days prior to the expiration date of the construction permit. Prior to the issuance of an operating permit, the applicant must provide the Department of Environmental Regulation with four months of results of analysis and flow measurements. An operation permit is issued only to those facilities which are able to operate within the standards of DER's rules. If the plant does not properly operate, DER requires the necessary corrections and modifications to bring the plant into compliance. DER may also prohibit further hookups if the plant operates improperly.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to the Respondent Pilot Properties, Inc. the requested construction permit subject to the conditions contained in the Department's initial notice of intent to issue the permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day March of 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Jacob Varn Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 T. Michael Patterson, Esquire 26 East Garden Street Pensacola, Florida 32501 Robert T. Fulton General Counsel Pilot Properties, Inc. 664 Cherry Street Winter Park, Florida 32789 William Hyde, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Ben A. Leasure, should have a $3,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly illegally filling 0.17 acres of wetlands contiguous with the Withlacoochee River (River), a Class III water, on land located in unincorporated Hernando County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the owner of an approximate 5-acre parcel of land located at the intersection of Olivet Drive and State Road 50 (5345 Olivet Drive) in unincorporated Hernando County, Florida. The property is also known as Parcel Identification Number R09-123-21-1110-00J0-0010. In broader geographic terms, the property lies just east of Interstate 75, west of U.S. Highway 301, and just west-southwest of Ridge Manor, a small community in Hernando County. The western boundary of the parcel is approximately 500 feet east of the River, a Class III Outstanding Florida Waterbody (OWF), which meanders through the area. See Fla. Admin. Code R. 62- 302.700(9)(i)41. In November 1971, Respondent purchased his property and on a later undisclosed date built a residence. According to Department Exhibit 24, which is a letter authored by Respondent in 1987, he first began filling the floodplain on the western part of his land "probably" in 1971, or just after he purchased the property. Historical aerial photographs of the site indicate that sometime before 1984, he constructed a pond just north of his house, apparently to be used for fishing, and by 1992 he had constructed a second, smaller pond just south of the larger pond. On February 3, 1986, the United States Army Corps of Engineers (Corps) sent Respondent a Cease and Desist Order in the form of a letter in which it advised Respondent that he had placed a "considerable amount of fill material" in wetlands adjacent to the River; that such filling was in violation of the federal Clean Water Act of 1977; that legal action would be taken if further filling occurred; that he must reply within 15 days indicating that he had complied with the terms of the letter; and that within the same timeframe he must provide information concerning the public and/or private need for the work, the effects on the surrounding area, and any other relevant information. By letter dated March 12, 1986, Respondent responded to the Cease and Desist Order and stated that prior to 1977 the land had been changed from wetlands to usable farmland, that his land did not connect to the River, and that there were no natural waters on his property that connected to state or federal waters. A follow-up letter was sent by the Corps on February 26, 1987, in which the Corps advised Respondent that he could resolve the violation "by removing all unauthorized fill material" and restoring the area. He was also told that in lieu of doing this, he could file an application for an after- the-fact permit authorizing the filling. A copy of a Joint Application for Permit was attached to the letter. On March 7, 1987, Respondent replied to the Corps' letter and stated that his land did not connect with any other waterbody; that he had been filling his property since 1971 without objection by anyone; that he had a "hard time understanding all these rules and regulations"; and that he questioned why the Corps was causing him "so much trouble for the last couple of years." Respondent never filed an application for an after-the-fact permit nor did he receive a reply to his letter. After an "Unauthorized Wetland Alteration Field Investigation" was conducted by the Southwest Florida Water Management District (District) sometime in 1992, by letter dated November 3, 1992, the District advised Respondent that it appeared the "wetland in question was disturbed prior to October, 1984" and that any filling done before that date was exempt from its jurisdiction; that it appeared that other dredge/fill work had been performed on the same wetland since that date; that Respondent's claim that the area was being used for agricultural purposes was not supported by any evidence; that Respondent's activities constituted a violation of Chapter 373, Florida Statutes; and that all illegal activity must be ceased immediately. The disposition of further contacts between the District and Respondent, if any, are unknown. Against this backdrop, on August 16, 2002, the Department's Tampa District Office received a complaint from the District stating that Respondent had illegally filled wetlands on his property. (The record does not show why the District waited almost ten years to refer the complaint to the Department.) In response to that complaint, and as a precursor to issuing a formal notice of violation, on August 20, 2002, the Tampa district office sent Respondent a warning letter indicating that a violation "may exist on [his] property" and requesting that he contact the Department to arrange a meeting "to discuss this matter." By mutual agreement, an inspection of the property was scheduled for September 5, 2002. Because a Department representative became unavailable just before the inspection, the Department did not appear at the property on the scheduled date or notify Respondent that the inspection had been cancelled. The following day, September 6, 2002, Department personnel were in the area and appeared unannounced at Respondent's property. However, no one was home and they did not inspect the property. Several weeks later, Department personnel again visited the site but could not gain access. Because Respondent was unwilling to grant access to his property, on April 17, 2003, the Department obtained an inspection warrant from the Circuit Court in Hernando County authorizing an inspection of Respondent's property. On April 22, 2003, seven Department employees inspected the property. Based upon plant species and hydrological indicators found on the property, it was established that the northwestern corner of Respondent's property lay within the surface water floodplain of the River and constituted wetlands, as defined by Section 373.019(22), Florida Statutes, and Florida Administrative Code Rule 62-340.200(19). (The Department also established that there is a fifty percent chance of the filled area being flooded during any given year.) Therefore, any filling on that portion of Respondent's property would require a permit. Department records reflected that Respondent had never obtained a permit authorizing any work. During their inspection, Department representatives observed that a narrow strip of land totaling around 0.20 acres in the northwest corner of the parcel (just west of the larger fish pond) had been filled with concrete debris and sand to a height of around 6 or 7 feet in an effort to sever the connection between the River and the wetlands.5 Unless the berm is removed, the activity could lead to adverse cumulative impacts, including a loss in available habitat for floral and fauna that currently use the area, a loss in water storage capacity of the current system, and a loss in detritus formation and nutrient/pollution cycling. An Enforcement Inspection Report prepared after the inspection recommended that an enforcement action be initiated. On June 10, 2004, the Department issued its Notice alleging that Respondent had violated Florida Administrative Code Rule 62-343.050, which requires a permit to fill wetlands or surface waters, and Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule. On August 12, 2004, Respondent filed his Petition challenging the Notice. In his Petition, Respondent denied that he owned the property on which the filling occurred; alleged that the property had been previously inspected in 1986 by the Corps; alleged that the District confirmed by letter in 1992 that the filling had occurred prior to 1984 and was therefore exempt from regulation; and alleged that he is entitled to "restitution" for damages caused by the Wysong Dam being rebuilt downstream from his property. At hearing, Respondent also suggested that the filled area was not wetlands. This proceeding followed. On November 17, 2004, the Department conducted a second inspection of Respondent's property. The objectives of that inspection were to determine the boundary of the filled area by Global Position Satellite equipment and to allow Eric D. Hickman, the new Environmental Manager who was not present during the first inspection, to perform a review of the property. Through ground reconnaissance and photo- interpretation, Mr. Hickman was able to establish the landward extent of the wetlands and other surface waters of the State. Based on vegetation, soils, and hydrologic indicators found on the site, he was able to confirm that the filled area on Respondent's property is wetlands. In fact, because of the overwhelming evidence of wetland indicators on the property (that is, the site conditions met nearly every single test criterion for a wetland), Mr. Hickman stated that he could make that determination with "100 percent certainty." Mr. Hickman concurred with the findings in the earlier inspection report, including one that the filled area is located entirely within a forested floodplain, which is both a surface water and a wetland due to regular flooding in the area for sustained periods of time. Photographs received in evidence, and testimony by Department representatives, confirm that the flooding occurs on a regular basis. See also Finding of Fact 13, supra. Significantly, Mr. Hickman observed that additional filling had occurred since the first inspection some eighteen months earlier, and that there were two signs on the front of his property reading "Needed Clean Fill." Finally, the location of two large cypress trees on the property suggested that an intact and mature floodplain existed before the alterations occurred. The filling poses a threat to the functions of the land, such as vegetation and habitat. Therefore, removal of the concrete debris and sand is necessary in order to restore those functions. While the Department would not promise that he could do so, it did represent that it would consider Respondent's request to remove the debris and sand to the upland area of his property, which would be much less expensive than hauling it offsite. At hearing, Respondent acknowledged that despite a warning by the Corps in 1986 that the filling was illegal, he has continued to engage in that activity for at least two reasons: to prevent flooding of his property and to prevent contaminated River water from reaching his fish ponds. He further acknowledged that as recently as 2003 he allowed several trucks to dump concrete debris and sand onto his property. (The concrete debris was obtained from a local Walmart store.) Respondent justified his actions in part on the ground that the Corps failed to respond to his letter in March 1987, and he assumed that this was an indication that the filling was legal. He also contended that the filled area was originally uplands when he purchased the property, but it changed to wetlands due to increased runoff from heavy development in the area and the construction of a dam downstream which caused the River to overflow during heavy rains. As a consequence, his property and others in the area (such as homes on Cyril Drive) have been prone to flooding. However, Mr. Hickman established that a floodplain existed on the property before any filling occurred. In any event, the Department has jurisdiction over both natural and artificial wetlands, and permits are needed for filling either type of wetland. Therefore, while the filling may have been performed for a salutary purpose, after 1984 he needed a permit to do so (assuming that such activities in a wetland are permittable). The fact that the land is zoned agricultural by Hernando County does not negate this requirement.5 Finally, a contention that a wetland is changed to uplands by merely placing dry dirt onto the wetland has been rejected. The land still remains a wetland for jurisdictional purposes. Respondent never filed for an after-the-fact permit (as suggested by the Corps in 1987) because it was too "complicated" to fill out the form. He conceded, however, that he did not ask the Department for assistance in doing so. Except for the explanations discussed above, Respondent presented no mitigating evidence. He has asked that due to his financial circumstances the amount of the fine be moderated or forgiven. At hearing, three Tampa District Office employees established that they spent a total of 70 hours of time on this case. At their hourly rate of pay, this totals $1,850.00 in investigative costs. In addition, Mr. Hickman was required to perform a wetland determination on the property. The normal charge for an assessment on a property of this size is $550.00. The reasonableness of these amounts was not disputed by Respondent. However, the Department is seeking reimbursement of only $500.00.
The Issue The issue in these consolidated cases is whether Respondent Florida Keys Aqueduct Authority ("FKAA") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of permit numbers 295404-018-DWC/CM ("Permit 18"), 295404-019-DWC/CM ("Permit 19"), 295404-025-DWC/CM ("Permit 25"), and 295404-027- DWC/CM ("Permit 27") (hereafter "Permits at Issue") authorizing the dryline construction of domestic wastewater collection and transmission systems in the lower Florida Keys.1/
Findings Of Fact The Parties Petitioners Petitioner Dump the Pumps, Inc. ("DTP") is a not-for- profit corporation incorporated under the laws of the state of Florida. DTP challenged the issuance of each of the Permits at Issue. Therefore, DTP is a Petitioner in each case in these consolidated proceedings. Petitioner Theresa Raven is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Petitioner Daniel Fitch is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Petitioner Jim Skura is a member of DTP and an individual petitioner in DOAH Case No. 14-2416, challenging the issuance of Permit 19. Petitioner Margaret Schwing is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. Petitioner Gail Kulikowsky is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. Petitioner Deborah Curlee is a member of DTP and an individual petitioner in DOAH Case No. 14-2420, challenging the issuance of Permit 25. Respondent Florida Keys Aqueduct Authority Respondent FKAA is a special district created by special act of the Florida Legislature. FKAA is charged with, among other things, providing wastewater service to the Florida Keys.4/ Ch. 98-519, Laws of Florida. Pursuant to this authority, FKAA is responsible for the design, construction, operation, and maintenance of the CRWS. FKAA is the applicant for the Permits at Issue being sought to implement the CRWS. Respondent Department of Environmental Protection Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, Florida Administrative Code Chapters 62-4, 62-604, and 62-555, and various industry standards manuals incorporated by reference into DEP rules. DEP's proposed agency actions to grant the Permits at Issue are the subject of these proceedings. The Projects Background and Overview The projects at issue are proposed to be located in the Florida Keys, in Monroe County, Florida. In recognition of, and to protect, the Florida Keys' unique, sensitive ecology, Congress enacted the Florida Keys National Marine Sanctuary and Protection Act, designating the Florida Keys, including the submerged lands and waters and living marine resources within those lands and waters, a National Marine Sanctuary. To further protect the Keys' unique habitat and environmental resources, Congress also enacted the National Key Deer Refuge, designating much of Big Pine Key and other areas within the lower Florida Keys as a refuge for the conservation and management of the Key Deer and other wildlife. 16 U.S.C. § 696. The State of Florida also has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated by DEP rule as Outstanding Florida Waters. Fla. Admin. Code R. 62-302.700(9). Additionally, the Florida Legislature has designated the Florida Keys an Area of Critical State Concern ("ACSC"). § 380.0552, Fla Stat. A stated purpose of the ACSC designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater management facilities that meet the requirements of section 403.086(10), Florida Statutes. § 380.0552(2)(i), Fla. Stat. The June 2000 Monroe County Sanitary Master Wastewater Plan ("Master Plan"), which was prepared as directed in the Monroe County Comprehensive Plan, addressed elevated nutrient levels in Monroe County nearshore waters resulting from discharges of raw sewage and inadequately treated wastewater. A primary purpose of the Master Plan was to plan for a central wastewater collection and treatment system to serve portions of Monroe County. The Master Plan considered the potential use of a number of different types of wastewater systems, including gravity systems, vacuum systems, and low pressure systems. In 2003, Monroe County adopted Ordinance No. 027-2003, authorizing assessment of an annual wastewater fee on properties to be served by the wastewater facilities being installed to implement the Master Plan. In 2010, the Florida Legislature enacted section 403.086(10). In that statute, the Legislature found that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. The statute further finds that the only practical and cost-effective way to improve wastewater management in the Florida Keys is for the local governments in Monroe County——which includes FKAA——to timely complete the wastewater and sewage treatment and disposal facilities pursuant to the Master Plan. To that end, the statute mandates that certain wastewater facilities identified in the Master Plan, including those at issue in these proceedings, be completed by December 31, 2015. To implement the Master Plan and this legislative mandate, Monroe County and FKAA entered into an interlocal agreement, which establishes and specifies FKAA's responsibilities to design, construct, operate, and maintain the central wastewater collection and treatment system. The CRWS is a component of this central wastewater collection and treatment system. It will serve the Cudjoe Regional Wastewater Service Area, which covers portions of Lower Sugarloaf Key, Upper Sugarloaf Key, Cudjoe Key, Summerland Key, Ramrod Key, Little Torch Key, and Big Pine Key. The CRWS consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and a wastewater treatment plant. These proceedings only involve challenges to certain components of the wastewater collection system. The transmission system permit previously was challenged, but that case was dismissed before the final hearing.5/ The wastewater treatment plant is not at issue in these proceedings. Project Planning and Design In furtherance of its responsibilities under the Monroe County interlocal agreement and the 2010 legislation, FKAA engaged Mathews Consulting, Inc. ("Mathews") to undertake planning, design analysis, and preliminary design for the CRWS wastewater collection systems. Mathews prepared the Central Cudjoe Regional Wastewater Collection System Analysis of Alternative Wastewater Collection Systems, dated February 2009 ("Mathews Report"), setting forth the planning and design analysis for implementing the wastewater collection systems portion of the CRWS. A key aim of this analysis was to identify a cost-effective wastewater collection system design, considering project magnitude, physical features of the islands being served, system reliability, operational costs, and socioeconomic factors.6/ In arriving at the proposed design for the CRWS wastewater collection system, Mathews engaged in an exhaustive analysis of the reliability, functional feasibility, physical features and impacts, and affordability of various types of collection systems, including gravity systems, vacuum systems, low pressure systems, septic tank effluent pump systems, and onsite nutrient reduction systems.7/ System reliability, which encompasses environmental considerations, was a fundamental threshold consideration in Mathews' analysis. As part of its analysis of various types of wastewater collection systems, Mathews concluded that low pressure systems are reliable. Based on the Mathews Report, FKAA concluded that, given system reliability, a hybrid system constituted the best alternative for the CRWS. A hybrid system was the most cost- effective system over the 20-year planning horizon and fit within Monroe County's budget of approximately $150 million allocated for the project.8/ Facilities Authorized by the Permits at Issue The CRWS wastewater collection system is a hybrid system because it does not consist of only one type of wastewater system, but instead consists of a combination of types of systems. Specifically, the CRWS consists both of a gravity system, which is being implemented in more densely populated service areas, and a low pressure system, which is being implemented in remote, less populated service areas. These proceedings involve challenges to certain components of the low pressure system portion of the wastewater collection system. The low pressure system at issue in these proceedings consists of multiple components: a residential grinder pump and wet well located on each serviced property; a service pipe lateral from each residential grinder pump wet well to a local force main, which runs beneath the public right of way and conveys the wastewater to the neighborhood lift station; neighborhood/area lift stations containing additional grinder pumps to pump wastewater from the serviced neighborhoods or areas; and transmission mains to convey wastewater from the neighborhood or area lift stations to the wastewater treatment plant. Of these components, all but the transmission mains have been challenged by Petitioners as not meeting the applicable permitting requirements and standards. Permit 19 authorizes the dryline construction of the Upper Sugarloaf Key wastewater collection system. The project consists of 9,300 linear feet ("LF") of eight-inch polyvinylchloride ("PVC") SDR 26 gravity sanitary sewer; 31 sanitary manholes; two neighborhood grinder pump stations; 121 E/One simplex grinder pump stations and 13 E/One duplex grinder pump stations; 27,253 LF of two-inch force main; 1,837 LF of three-inch force main; and 4,737 LF of four-inch force main. Permit 19 constitutes a modification of a previously issued permit, Permit 6, which originally permitted the wastewater collection system for Upper Sugarloaf Key.9/ Permit 19 was sought because after Permit 6 was issued, Monroe County opted to fund additional gravity components of the Upper Sugarloaf Key wastewater collection system. Accordingly, Permit 19 has the effect of increasing the number of gravity sanitary sewer components (which are not at issue in these proceedings) and decreasing the number of low pressure system components of the Upper Sugarloaf Key wastewater collection system. Permit No. 25 authorizes the dryline construction of a wastewater collection system on Cudjoe Key. The project consists of 58,825 LF of eight-inch PVC gravity sanitary sewer; 222 sanitary manholes; 20 neighborhood grinder pump stations; 63 residential E/One low pressure simplex grinder pump stations and 11 E/One duplex grinder pump stations for commercial areas; 28,815 LF of two-inch HDPE SDR 11 force main; 8,615 LF of three- inch HDPE SDR 11 force main; 1,488 LF of four-inch HDPE SDR 11 force main; 1,298 LF of six-inch HDPE SDR 11 force main; and 2,316 LF of eight-inch HDPE SDR 11 force main. Permit 25 constitutes a modification of a previously issued permit, Permit 8, which originally permitted the wastewater collection system for Cudjoe Key.10/ Permit 25 has the effect of increasing the number of gravity sanitary sewer components (which are not at issue) and decreasing the number of low pressure system components of the Cudjoe Key wastewater collection system. Permits 19 and 25 collectively comprise the "inner islands" portion of the CRWS. Permit 18 authorizes the dryline construction of the Big Pine Key North wastewater collection system, to be located in north Big Pine Key. The project consists of 28,375 LF of eight- inch PVC gravity sanitary sewer; 108 sanitary manholes; six neighborhood grinder pump stations; 1,053 residential E/One low pressure simplex grinder pump stations; 11 commercial low pressure lateral connections; 5,267 LF of two-inch HDPE SDR 11 force main; 3,942 LF of three-inch HDPE SDR 11 force main; 11,918 LF of four- inch HDPE SDR 11 force main; 1,588 LF of six-inch HDPE SDR 11 force main; 236 LF of eight-inch HDPE SDR 11 force main; 69,403 LF of two-inch low pressure HDPE SDR 11 force main; 31,065 LF of three-inch HD3PE SDR 11 force main; 5,228 LF of four-inch HDPE SDR 11 force main; and 3,977 LF of six-inch HDPE SDR 11 force main.11/ Permit 27 authorizes the dryline construction of the Big Pine Key South wastewater collection system, to be located on south Big Pine Key.12/ The project consists of 59,651 LF of eight- inch PVC gravity sanitary sewer; 222 sanitary manholes; 15 neighborhood grinder pump stations; 355 residential E/One low pressure simplex grinder pump stations; 101 commercial low pressure lateral connections; 10,521 LF of two-inch HDPE SDR 11 force main; 14,155 LF of three-inch HDPE SDR 11 force main; 14,207 LF of four-inch HDPE SDR 11 force main; 5,339 LF of six-inch HDPE SDR 11 force main; 43,771 LF of two-inch low pressure HDPE SDR 11 force main; 13,481 LF of 3-inch HDPE SDR 11 force main; and 317 LF of four-inch SDR 11 force main. Permits 18 and 27 collectively comprise the "outer islands" portion of the CRWS. The Permitting Process The Notification/Application for Constructing a Domestic Wastewater Collection/Transmission System, which has been adopted by DEP rule,13/ is the application form that must be completed and submitted to DEP to receive authorization to construct a domestic wastewater collection and transmission system. The overarching purpose of the dryline construction permitting process is to ensure that the collection/transmission system is designed in accordance with applicable DEP rule standards, which incorporate reasonable industry standards, so that once the system becomes operational, it functions as intended and does not harm the environment. The application form includes a list of 84 requirements, some——but not necessarily all——of which apply to a specific project. The form requires the applicant's certifying engineer to initial the space next to each applicable requirement, signifying that the requirement is met. The application form also requires the engineer responsible for preparing the engineering documents to sign and seal the application, signifying that the engineer is in responsible charge of the preparation and production of the engineering documents for the project; that the plans and specifications for the project have been completed; that the engineer has expertise in the design of wastewater collection/transmission systems; and that to the best of the engineer's knowledge and belief, the engineering design complies with the requirements of chapter 62-604.14/ Once the application form is submitted, DEP permitting staff reviews the application and determines whether items on the application form and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a request for additional information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to determine whether to issue or deny the permit, DEP determines the application complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as the Department may direct, only if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, it is legally entitled to the permit and DEP must issue the permit. Once the dryline collection/transmission system has been constructed, the permittee must obtain certification from DEP to operate the system as a wetline that pumps wastewater to the treatment plant. To obtain certification, the permittee must provide DEP with an operation and maintenance ("O & M") manual establishing the operation and maintenance protocol for use of the system. Proposed Wastewater Collections Systems FKAA, as the applicant for the Permits at Issue, retained Mathews to design the wastewater collection systems for the "inner islands" and to prepare and submit the applications for these systems to DEP on FKAA's behalf.15/ In preparing the applications for these wastewater collection systems, David Mathews, a licensed professional engineer in Florida employed with Mathews Consulting, completed the application forms for each system. In doing so, Mathews initialed the application checklist, indicating that all applicable requirements were met; signed and sealed the application documents where and as required; and signed and sealed the certification that he is the engineer in responsible charge of the preparation and production of the engineering documents for the project. Initialing the checklist also indicates that the plans and specifications for the project were complete; that Mathews has expertise in the design of wastewater collection/transmission systems; and that to the best of Mathews' knowledge and belief, the engineering design for the application complies with the requirements of chapter 62-604. Mathews submitted the application for the Upper Sugarloaf wastewater collection system16/ to DEP on March 13, 2014, and submitted the application for the Cudjoe Key wastewater collection system17/ to DEP on April 3, 2014. FKAA retained Chen Moore and Associates ("Chen Moore") as the design engineer and Layne Heavy Civil as the contractor for the wastewater collection systems for the "outer islands." On behalf of FKAA as the applicant, Chen Moore prepared and submitted the applications for these systems.18/ Oscar Bello, a licensed professional engineer in Florida, previously employed by Chen Moore,19/ prepared and completed the application forms for each wastewater collection system for the outer islands. In doing so, Bello initialed the application checklist, indicating that all applicable requirements were met; signed and sealed the application documents where and as required; and signed and sealed the certification that he is the engineer in responsible charge of the preparation and production of the engineering documents for the project. Initialing the checklist also indicated that the plans and specifications for the project were complete; that Bello has expertise in the design of wastewater collection/transmission systems; and that to the best of Bello's knowledge and belief, the engineering design for the application complies with the requirements of chapter 62-604. Chen Moore submitted the application for the north Big Pine Key wastewater collection system20/ to DEP on February 12, 2014, and submitted the application for the south Big Pine Key wastewater collection system on April 21, 2014.21/ Each wastewater collection system proposed in the applications is comprised of a gravity system and a low pressure system. As previously noted, the gravity systems are proposed for use in the more densely populated portions of the areas to be serviced by the systems, and the low pressure systems are proposed for use in the less densely populated areas to be serviced by the system. The low pressure systems are comprised in part of progressive cavity pumps manufactured by Environment One Corporation referred to as "E/One" grinder pumps. Each residence served by a low pressure system will be served by an E/One grinder pump and wet well housing the grinder pump located on the serviced property.22/ The grinder pump and wet well are buried, with the top portion positioned slightly above ground to vent gases and prevent surface water flow into the wet well. The grinder pump contained within the wet well is continuously submerged. The pump is connected to an electrical panel inside or outside of the residence, so that the residence provides the electricity to power the pump. Wastewater from the residence flows through a service line into the wet well housing the grinder pump. Once the wastewater reaches a certain level in the wet well, the pump turns on and pumps the wastewater out of the wet well into the force main located under the neighborhood street. E/One grinder pumps are used in wastewater collection systems throughout the United States, including low pressure systems located in other parts of the Florida Keys. They are recognized in the Alternative Wastewater Collection Systems manual, a 1991 publication of the United States Environmental Protection Agency, as appropriate for use in low pressure wastewater collection systems. To prevent wastewater backflow into the residential wet wells, check or safety valves are located in the lines conveying the wastewater from the wet wells and at the street right-of-way where the service lines connect to the neighborhood force main. The low pressure systems also contain piping components consisting of service laterals, local force mains, and transmission mains, of various diameters comprised of extruded high density polyethylene ("HDPE"). HDPE pipes are flexible and are pieced together by welding section ends together. They do not have joints with rubber gaskets, which may shrink, deteriorate, or leak over time. Due to their flexibility, HPDE pipes can be horizontally drilled under roadways and wetlands, eliminating the need to disturb the surface and to dewater in order to lay the pipes. As such, these pipes are particularly suitable for projects in which the pipes will be placed in areas having roadways or surface development, or in areas that are environmentally sensitive or have a high water table, such as the Florida Keys. The low pressure systems also feature neighborhood/area lift stations. The residential grinder pumps generate sufficient force to pump the wastewater collected in the neighborhood force mains to neighborhood/area lift stations.23/ Each lift station contains a series of submersible grinder pumps that activate based on wastewater level in the lift station. The lift stations are designed and located to pump wastewater from the serviced neighborhoods or areas to transmission mains that ultimately convey the wastewater to the treatment plant. For each of the proposed wastewater collection systems, the system capacity exceeds 100 gallons per day per capita. Exceeding the 100 gallons per day flow quantity is permissible, per the application form, if the applicant is able to better estimate the flow using water use data or other justification. Here, FKAA estimated the stated system capacity for each application based on historic actual water use data, which provides a more accurate estimate of wastewater system capacity; accordingly, the proposed systems are not limited to a design capacity of 100 gallons per day per capita. Review and Proposed Issuance of the Permits at Issue Upon receiving the applications from Mathews Consulting and Chen Moore, DEP staff reviewed them for compliance with all applicable statutory and rule requirements and standards. DEP's review included a substantive design accuracy review by two licensed professional engineers in Florida, each having extensive wastewater systems design permitting experience. Ultimately, DEP determined that FKAA provided reasonable assurance that each wastewater collection system for which FKAA submitted an application met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to Issue for each of Permits 18, 19, 25, and 27. At the final hearing, DEP's assistant director for the Southern District and a wastewater systems design expert, Al McLaurin, opined that FKAA had provided reasonable assurance to support the issuance of Permits 18, 19, 25, and 27. Mr. McLaurin persuasively testified that, based on results of the Little Venice Water Quality Monitoring Report showing a substantial improvement in water quality in canals of a subdivision as a result of installation of a central wastewater system, implementing the CRWS should result in a substantial improvement in water quality in the nearshore waters of the Florida Keys. Establishment of Prima Facie Entitlement to Permits at Issue The relevant portions of each of the permit files, including the permit application, supporting information, and Notice of Intent to Issue for each of the Permits at Issue were admitted into evidence at the final hearing. With the admission of these documents into evidence, FKAA established its prima facie case demonstrating entitlement to each of the Permits at Issue. See § 120.569(2)(p), Fla. Stat. The Challenges to the Permits at Issue Once FKAA demonstrated prima facie entitlement to the Permits at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permits at Issue.24/ See id. To prevail in these proceedings, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. They have raised numerous bases that they contend mandate denial of the Permits at Issue. As an overarching matter, Petitioners argue that DEP's review of the applications for the Permits at Issue was not sufficiently rigorous, and that as a result, DEP did not accurately review the applications, did not catch errors or require the projects to adhere to the appropriate permitting standards and requirements, and incorrectly determined that FKAA provided reasonable assurance for issuance of the Permits at Issue. Petitioners base their argument in part on McLaurin's testimony that DEP's review is "cursory." However, following this characterization, McLaurin went on to describe the nature and depth of agency review to which the applications were subjected. DEP review staff reviewed the applications to ensure that the projects were accurately designed and will function without causing adverse environmental impact as required by the applicable permitting rules.25/ DEP's review process does not entail re- designing or re-engineering the project, or questioning the design engineer's judgment on design matters, as long as the projects are accurately designed and functional in accordance with the applicable permitting requirements and standards. When inaccuracies or incomplete items are discovered in the review process, they are addressed with the applicant through the RAI process.26/ If the deficiencies are not addressed in a manner sufficient to meet the applicable permitting requirements and standards, the permit is denied. As a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to the permitting standards and requirements——as is authorized and appropriate pursuant to the certification provisions on the application form, rules 62-604.300 and 62-4.050(3), chapter 471, and Florida Board of Engineering rules. Accordingly, the undersigned rejects the contention that DEP's review of the applications for the permits at issue was insufficient. Scouring Velocity Petitioners allege that the system, as designed, will not achieve a two-feet-per-second ("2 fps") minimum wastewater flow rate, such that it will experience insufficient velocity to scour and prevent accumulation of solids in the pipes. In support, Petitioners presented the testimony of Donald Maynard, who relied on the application form, Force Mains section, item no. 78, which references the Recommended Standards for Wastewater Facilities, dated 1997——the so-called "Ten States Standards." Maynard testified that portions of the proposed systems do not meet the Ten States Standards, which establishes a 2 fps minimum flow rate, the minimum he claimed is necessary to prevent sedimentation and plugging of the systems piping. On this basis, Petitioners contend that the systems do not meet the mandatory regulatory requirements regarding minimum flow rate. However, pursuant to DEP rules, the Ten States Standards manual does not mandatorily apply to this project. As previously noted, the CRWS is an "alternative collection/transmission system" under DEP rules because it is "not comprised of strictly conventional gravity sewers, pump stations, and force mains." Fla. Admin. Code R. 62-604.200(1). Rule 62-604.400(4) states: "[t]he manuals referenced in rule 62-604.300(5)(b), (c), and (j), F.A.C., shall be used in the evaluation of the design and construction of alternative collection/transmission systems in Florida." The Ten States Standards manual is not among the list of technical manuals that mandatorily apply to alternative systems, so the standards established in those manuals are not mandatory regulatory standards, but may be used as guidance. Thus, the 2 fps minimum flow standard established in the Ten States Standards is not a requirement applicable to the Permits at Issue. As such, item no. 78 on the application form, requiring a 2 fps flow rate based on the Ten States Standards, is inapplicable to these systems. Rene Mathews, president of Mathews Consulting, acknowledged that in some extreme street ends and cul-de-sacs, the systems will not meet the 2 fps flow rate. However, she credibly testified that this rate is not a requirement but may be used as guidance——and, in fact, was used as guidance in designing the wastewater collection system. She explained that in areas where 2 fps velocity cannot be achieved, FKAA will be required to clean more frequently. Mathews' testimony is consistent with that of Al McLaurin, who also stated that the 2 fps flow rate is not a mandatory regulatory standard and that DEP's rules afford discretion to allow it to permit systems having lower flow rates where, as here, the permittee provides reasonable assurance that it will clean and maintain the system's pipes with sufficient frequency to prevent them from becoming plugged. Oscar Bello, formerly of Chen Moore and the responsible engineer for the applications for the outer islands wastewater collection systems for which Permits 18 and 27 are proposed to be issued, concurred with Ms. Mathews' testimony regarding the inapplicability of the 2 fps standard. He also concurred in the need for additional cleaning in areas where the 2 fps flow rate will not be achieved. Mr. Gary Maier, a professional engineer supervisor with DEP's South District who manages wastewater permitting groups and reviews wastewater systems permit applications, also confirmed that the 2 fps flow rate is not a mandatory DEP regulatory requirement on which permit denial can be based. Ms. Mathews is a licensed professional engineer in Florida and has been practicing as a civil engineer for over 14 years. Her firm has handled over 150 wastewater projects, including the wastewater collection systems for the inner islands at issue in these proceedings. Over the course of her career, she has designed between 30 and 40 wastewater pump stations. Although she is not the engineer whose seal and certification appear on the applications for the inner islands wastewater collection systems, her firm designed, prepared, and submitted the applications for these systems, and she worked on these projects. She is knowledgeable about and understands the systems at issue. Mr. McLaurin is a licensed professional engineer in Florida with many years of engineering and engineering-related experience that includes wastewater systems design in the private and public sectors and wastewater systems applications review with DEP. Through his experience, he has gained extensive understanding of the statutes and DEP rules applicable to wastewater permitting. Although McLaurin was not directly involved in DEP's review of the applications for the Permits at Issue, he is thoroughly familiar with, and possesses complete understanding of, the permit applications and supporting documentation. Mr. Bello is a licensed professional engineer in Florida. He has approximately ten years of experience in infrastructure permitting in the public and private sectors. Bello is the design engineer responsible for designing the outer islands wastewater collection systems and preparing and submitting the applications to DEP on FKAA's behalf. As such, he possesses extensive, in-depth understanding of the systems' design and functionality. Mr. Maier is a licensed professional engineer in Florida with over 20 years of environmental regulatory experience, including extensive experience in interpreting and applying DEP's wastewater rules and reviewing wastewater systems permit applications. Mr. Maynard is a professional engineer licensed in Maine and Vermont, and has many years of engineering experience. Although he is experienced in a wide range of engineering-related fields, his experience appears primarily concentrated in hydrogeologic design, environmental site assessment, and contaminated sites assessment and remediation. He has some experience with septic system design and indirect discharge experience; however, that experience appears to be largely limited to on-site septic systems. He lacks experience in designing or implementing low pressure wastewater collection systems like those at issue in these proceedings. Maynard has no significant understanding of, and lacks experience in, interpreting or implementing Florida's wastewater statutes and rules. He was contacted to testify approximately two weeks before his deposition. He acknowledged that he spent only a few days reviewing pertinent documents and that he had not reviewed all of the information prior to being deposed. His testimony evidences that while he has extensive knowledge of engineering principles regarding fluids, piping, and pumps, he is only superficially familiar with the projects at issue and possesses very little understanding of the wastewater permitting rules applicable to these projects. The undersigned finds persuasive the testimony of Mathews, McLaurin, Bello, and Maier that the 2 fps flow rate is not a mandatory standard applicable to the projects authorized by the Permits at Issue, and that in areas of the systems in which a 2 fps flow rate will not be achieved, requiring more frequent cleaning to ensure that the pipes do not become plugged is adequate to meet DEP's rule requirements. The undersigned finds Maynard's testimony on this issue unpersuasive due to his lack of experience with projects similar to the CRWS wastewater collection systems, his lack of knowledge of and experience with DEP's wastewater permitting rules and requirements, and his lack of anything more than superficial familiarity with the projects at issue. Petitioners did not show that the Permits at Issue should be denied due to inadequate scouring velocity in violation of DEP rules and applicable technical manual standards and requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, will not experience wastewater backups or releases into the environment as a result of inadequate scouring velocity. FKAA has demonstrated that the systems, in compliance with DEP rules and applicable technical manual standards and requirements, will have wastewater flow of sufficient velocity to scour and prevent sedimentation in the piping, and that in the few remote areas where the velocity may be lower than recommended, more frequent cleaning of the piping will prevent sedimentation. Pipe Separation Petitioners allege that the Permits at Issue violate rule 62-604.400(2)(g), which requires a minimum ten-foot horizontal separation distance between wastewater collection/transmission pipes and public water system pipes.27/ Petitioners presented the testimony of Donald Maynard to support their position. Maynard identified several locations in the Upper Sugarloaf and north Big Pine Key wastewater collection systems where the rule's horizontal separation distances between the wastewater lines and public water system lines are not met. In Petitioners' view, this constitutes a fatal flaw warranting permit denial. In rebuttal, Mr. Maier testified that a six-foot horizontal separation between the wastewater and public water systems pipes meets DEP's wastewater permitting rules. This is because the ten-foot separation distance established in rule 62- 604.400(2)(g) applies "[e]xcept as provided in subsection 62- 604.400(3)." Rule 62-604.400(3) provides, in pertinent part, that if there are conflicts in the separation requirements between wastewater collection systems and drinking water facilities established in rule 62-604.400(2) and those established in Florida Administrative Code Rule chapter 62-555, the requirements in chapter 62-555 apply. Rule 62-555.314(1)(g) states that new or relocated underground water mains shall be laid to provide a horizontal distance of at least six feet, and preferably ten feet, between the outside of the water main and the outside of any existing or proposed wastewater force main. DEP interprets these rules as establishing a minimum six-foot separation distance between public water system lines and wastewater lines, regardless of whether a new water line is being laid in proximity to an existing wastewater line, or vice versa. Maier explained that the purpose of requiring minimum separation distances between water and wastewater lines is to separate the lines a safe distance from each other to enable work on one line to be done without inadvertently damaging the other line. In recognition that construction practices have improved over the years, so there is less chance for such damage than when the rule initially was adopted, DEP amended the separation distance in the public water systems rule to six feet, but inadvertently failed to amend the wastewater collection system rule to reflect the same distance. In an effort to clarify that the six-foot minimum is the standard applicable to construction of wastewater lines as well as drinking water lines, DEP amended rule 62-604.400 to add subsection (3), which states that in the event of a conflict between the rules, the drinking water rule provisions (which establish the six-foot separation minimum) control. Petitioners contend that this interpretation is incorrect because rule 62-604.400(2)(g) does not conflict with rule 62-555. Petitioners assert that there is a logical basis for interpreting these rules as establishing different, non- conflicting standards: specifically, that the construction of new sewer lines near old, potentially leaking drinking water lines raises the potential for sewage to contaminate drinking water, whereas installing new water lines near old, leaking sewage lines raises the potential for drinking water to infiltrate sewage lines. Maier disagreed, persuasively testifying that there is no rational basis for the different separation standards in the rules; thus, DEP treats them as conflicting and the six-foot separation standard in rule 62-655 controls. Maier testified, credibly, that under any circumstances, both the new and old water lines are pressurized so any leakage will force water out of the lines rather than allowing sewage to infiltrate the lines. Per the explanation provided by Mr. Maier, DEP's interpretation of its own rules is reasonable and therefore is accepted.28/ Mr. Maynard's testimony is not afforded weight due to his lack of experience with and understanding of DEP's wastewater collection/transmission systems permitting rules. Conversely, based on his experience with DEP wastewater regulation over many years, Mr. Maier's testimony is deemed persuasive on the pipe separation distance issue. Petitioners failed to show that the Permits at Issue should be denied for noncompliance with applicable pipe separation requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the wastewater collection systems proposed to be authorized by the Permits at Issue meet the applicable wastewater line and drinking water line horizontal distance requirements in DEP's wastewater collection system rules. Friction Coefficient Standard Petitioners allege that the friction coefficient of 140, also called the "C Factor,"29/ submitted as part of the wastewater systems design exceeds the maximum value of 120 established in the Ten States Standards, and, therefore, does not meet DEP's rule standard for this value. Petitioners assert that as a result of using too large a C Factor in the system design, head loss that occurs as the wastewater flows through the system pipes is underestimated, so the systems will not function as anticipated. As previously discussed, because the wastewater collection systems at issue in these proceedings are alternative systems, the Ten States Standards do not mandatorily apply. Accordingly, the C Factor of 120 in the Ten States Standards is inapplicable to the systems. The C Factor used in designing the systems was chosen based on the material that comprises the piping——here, HDPE, which has an industry standard C Factor of between 140 and 150. The systems were designed using the more conservative value in the allowed C Factor range for HDPE piping. Under any circumstances, the difference in system performance of using a 140 C Factor instead of a 120 C Factor in designing the system is negligible. Using HDPE piping for low pressure systems is standard, and the use of the 140 C Factor in the system design complies with the industry standard for such piping. Petitioners did not demonstrate that the use of a C Factor of 140 in the wastewater collection systems design violates DEP's applicable requirements and standards, or that the systems will malfunction due to underestimated head loss, causing environmental harm or property damage. FKAA demonstrated, by a preponderance of the competent substantial evidence, that using the 140 C Factor in the wastewater collection systems design complies with DEP rules and applicable technical manuals, and adequately addresses head loss due to friction. Thus, it is not anticipated that the systems will malfunction due to head loss and release sewage, causing environmental harm or property damage. System Design Capacity Petitioners allege that the wastewater collection systems, as designed, will have insufficient capacity to handle the volume of wastewater put into the system. The application form, item 1, requires the system to be designed based on an average daily flow of 100 gallons per capita plus wastewater flow for other specified uses, unless water use data or other justification is used to better estimate the flow. Rather than designing the system based on an assumed average daily flow of 100 gallons per capita, design engineers Chen Moore and Mathews Consulting instead used actual water consumption data from FKAA's historic water consumption records for the past four years on a bimonthly basis for each parcel that will be served by the systems. Overall calculations of daily flow were based on the assumption that every dwelling unit contributed to the flow. Water consumption was converted to gallons per day per equivalent dwelling unit ("EDU"), each house connected to the system was identified, and the average EDU per house was determined. Chen Moore and Mathews took a localized approach in determining flow rate per area contributing to the wastewater collection systems. Homes using water to irrigate landscaping were identified through aerial photographs and by on-the-ground surveys. The estimated amount of flow into the systems was reduced to address irrigation water consumption for landscaping that would not be returned to the wastewater flow from the dwelling unit. Petitioners' witness Donald Maynard testified that Census Bureau information provides a more accurate estimate of the actual population for purposes of system design capacity than relying on historic water use data. He opined that using historic water consumption data underestimates the amount of flow into the system because the data are based on historic population figures that are lower than the current population of the lower Keys. He also testified that considering landscape irrigation in estimating wastewater flow artificially reduced the estimate of wastewater volume that will flow into the systems. He concluded that these flow estimation methods were unreliable and resulted in undersized collection systems. Maynard acknowledged that he does not have any experience in designing low pressure sewer systems, that he did not perform any independent system design flow estimate calculations, that he did not independently research or investigate information relevant to determining system capacity, that he relied on information provided by others regarding Keys population trends, and that he had assumed, without verifying, that the Keys population has increased. In fact, the credible evidence showed that Monroe County's population, including certain areas of the lower Keys, decreased between 2000 and 2010. Rather than relying on general information, such as census data, to estimate system capacity, the CRWS system design engineers used years of parcel-specific data regarding actual water consumption to determine system capacity. This is a more precise and accurate method of determining system capacity than that suggested by Mr. Maynard. Petitioners have not shown that the systems' design capacity is insufficient to handle the volume of wastewater that will flow into them, in violation of DEP rules and applicable technical manual standards and requirements. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, have sufficient capacity to accommodate the amount of wastewater that will flow into and be conveyed by the systems, and therefore meet DEP rules and all applicable technical manual standards and requirements. Peaking Factor Petitioners also allege that the wastewater collection systems, as designed, are based on an incorrect peaking factor of 4.0, and, thus, are undersized to handle peak flow that occurs at certain times, such as seasonally when the Keys occupancy rate is greater than average or immediately following power outages. As a result, Petitioners contend, wastewater will back up into homes, onto the ground, and into groundwater, and will flow into surface and nearshore waters, causing environmental harm and endangering human health. Petitioners offered the testimony of Donald Maynard to support their position. Maynard testified that, based on a preliminary design study performed by Brown and Caldwell in 2008, the correct peaking factor for the collection systems is 4.5, rather than 4.0, as proposed. Oscar Bello, design engineer for the outer islands wastewater collection systems, explained that the 4.5 peaking factor recommended in the Brown and Caldwell study related to the capacity of the wastewater treatment plant,30/ not the collection systems. Bello testified, credibly, that using a peaking factor of 4.0 to design the wastewater collections systems is sufficient to address peak usage conditions and will not undermine the systems' performance under those conditions.31/ Mr. Bello's testimony was buttressed by testimony by Tom Walker, assistant executive director for FKAA. Walker explained that it is prudent to build in a larger safety margin for treatment plant capacity. This is to ensure that under extreme conditions, if all systems components are working at——or, in some places over——capacity, the flow into the plant does not exceed its capacity. As previously discussed, Mr. Bello has extensive experience in infrastructure permitting in the public and private sectors. As the design engineer responsible for the outer islands wastewater collection systems, he possesses great understanding of the design and function of these particular systems. Mr. Walker is a licensed professional engineer in Florida. He has been a practicing engineer since 1976 and has extensive experience with municipal wastewater systems in Florida, as well as in Texas and overseas. He has been employed by FKAA since 2006, and has been deeply involved in the design and implementation of the CRWS. The testimony of Bello and Walker was credible and persuasive regarding the adequacy of the peaking factor proposed for the systems. By contrast, Maynard is only superficially familiar with the systems at issue and lacks substantial experience with, and understanding of, the rules applicable to the systems. As such, his testimony on this issue was not persuasive. Petitioners failed to demonstrate that the peaking factor of 4.0 proposed for the wastewater collections systems at issue does not comply with any applicable regulatory standards or will result in undersized systems that will not function properly and will result in discharge of wastewater into homes and the environment. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems are designed to accommodate peak wastewater flows without malfunctioning, and that the peaking factor to which the systems have been designed meets DEP rules and all applicable standards and requirements. Quick Connect for Emergency Pump Out Petitioners allege that the system, as designed, violates DEP rules because it does not provide rapid pump out connection for the individual residential "pump stations" to enable them to be quickly accessed and pumped out in emergency circumstances. Petitioners posit that each individual residential single grinder pump and wet well constitutes a "pump station" and that DEP rules require every "pump station" to have emergency pumping capability. The term "pump station" as used in DEP's wastewater rules means a station consisting of two or more pumps, not an individual residential pump and wet well. This is apparent from the context in which the term is used in the Notification/Application Domestic Wastewater Collection/ Transmission form section titled "Pump Stations" and in the rules and technical manuals applicable to alternative collection systems. Mr. McLaurin confirmed that DEP rules do not require individual residential grinder pumps and wet wells to have emergency pumping capability. The lift stations serving the neighborhoods and other areas contain two or more pumps and thus are "pump stations" subject to the emergency pumping capability requirement. Ms. Mathews credibly testified, and other credible evidence in the record shows, that each lift station is equipped with a system that allows a pump to be dropped into the lift station, where a hose is extended and the pump is connected to the pump quick connect, enabling the wastewater to be pumped out of the station through the system pipes. A hatch must be opened in order to access the lift station to use the quick connect pump out system, but there is no credible evidence showing that this constitutes an impediment to rapidly engaging the pump out system. Petitioners have not demonstrated that the pump stations lack emergency pumping capability in violation of applicable DEP rules. FKAA demonstrated, by a preponderance of the evidence, that the neighborhood/area lift stations meet the DEP rule requirement to have emergency pump out capability. Explosion Potential of Pumps Petitioners allege that the residential grinder pumps and the neighborhood/area lift station grinder pumps are unsuitable for the conditions to which they will be exposed because they are not explosion-proof, and that including them in the systems design violates DEP rules, the Ten States Standards, the National Electrical Code ("NEC"), and the National Fire Protection Association ("NFPA") Standards. Specifically, Petitioners assert that methane will accumulate in the residential grinder pump wet wells and in the lift stations, and, as such, these areas are considered "Classified Hazardous Area, Class I, Division 2, Group 2" under NFPA Standards. Petitioners contend that the mechanics of the grinder pumps make them susceptible to explosion under such conditions, so they are not suitable for use as proposed in the systems. In support, Petitioners presented the testimony of Michael Boismenu, who opined that use of grinder pumps in this type of environment constitutes a violation of NEC section 501.125 for motors and generators. Boismenu testified that the grinder pumps have the potential to ignite if they are exposed to a hazardous environment, which includes areas in which combustible gases, such as methane, accumulate. As such, Boismenu opined that grinder pumps should be classified as "Class I, Division 1" under the NEC and NFPA Standards. Under this classification, grinder pump use in an environment in which combustible gases accumulate would violate the NEC. Contrary to Mr. Boismenu's position, the credible evidence, consisting of the testimony of Rene Mathews and supporting documentation, shows that the residential grinder pumps are "unclassified," per NEC section 820-11, table 4.2. This means that the risk of fire and explosion is so low that there is no requirement for any particular fire protection measures to be implemented in using the individual residential grinder pumps. Also contrary to Boismenu's position, Ms. Mathews' testimony and the supporting documents show that the neighborhood/area lift station grinder pumps and wet wells are classified as "Class I, Division 2" under the NEC and NFPA Standards. Under this classification, there is a potential for fire and explosion under abnormal circumstances, such as if the pumps were not operating properly.32/ To address this potential—— which is remote——the lift station grinder pumps' electrical components were specifically designed to meet the Class I, Division 2 standard and also will be continuously submerged, mitigating the risk of fire or explosion.33/ Mr. Boismenu is an engineer and previously was a licensed professional engineer in New York. He has extensive experience in the energy production field, but never has worked on a wastewater project similar to the CRWS and has no experience applying the NEC or NFPA standards to wastewater projects. He first received specific information from Petitioners on the projects at issue on or around September 9, 2014, so his familiarity with the projects is based on two weeks of review in preparation for his deposition. His testimony revealed that he lacks specific knowledge about, or understanding of, the electrical features of the individual residential or neighborhood/area lift station grinder pumps or their classifications under the NEC and NFPA Standards. By contrast, Ms. Mathews' testimony was specific, detailed, and accurate, and was buttressed by documentation addressing the NEC and NFPA Standards applicable to residential and neighborhood/area lift station grinder pumps. This evidence, which was credible and persuasive, demonstrates that the residential and neighborhood/area lift station grinder pumps do not pose a significant threat of fire or explosion, and, thus, meet DEP's rules and the NEC and NFPA Standards. As previously discussed, the Ten States Standards manual——which Petitioners contend imposes an "explosion proof" standard——does not mandatorily apply to these systems. DEP rules and technical manuals applicable to these systems do not impose such a standard. Accordingly, the fact that the grinder pumps are not completely "explosion-proof" is not a cognizable ground for denying the Permits at Issue. Petitioners did not demonstrate that the residential and neighborhood/area lift station grinder pumps violate DEP rules and applicable technical manuals, the NEC, or the NFPA Standards regarding potential for fire and explosion. FKAA demonstrated, by a preponderance of the competent substantial evidence, that using E/One grinder pumps in the wastewater collection systems does not present a substantial fire or explosion risk and does not violate DEP rules or applicable technical manual standards and requirements. Air Release Valves Petitioners allege that the wastewater collection systems, as designed, inadequately provide for the release of combustible gases from the collection lines. As a result, Petitioners contend, gases may become trapped in the lines, obstruct wastewater flow, create an explosion risk, and endanger the public health and safety. Petitioners presented Mr. Maynard's testimony to support this contention. Maynard testified that methane and hydrogen sulfide would be generated by the wastewater and would accumulate in pockets in the wastewater lines. According to Maynard, this is mostly a problem at high points in the lines, particularly if there is not enough velocity to purge the gas from the line. He stated that "normally, you would put in vents to allow that gas to escape." The evidence shows that wastewater collection systems design does, in fact, include measures for releasing air and gases from the system. Specifically, in compliance with DEP's Design and Specification Guidelines for Low Pressure Sewer Systems, the design provides for air release valves to be located at the high points in the lines and at dead ends in the system lines. It is standard practice to add air release valves to pipes as necessary during pipe installation because the best locations for the valves are more accurately determined during the installation process. FKAA provided specific protocol for ensuring the correct operation of these valves and will submit as-built drawings showing location and proper placement of air release valves when it requests certification to operate the CRWS. Petitioners did not prove that the wastewater collection systems, as designed, fail to adequately provide for the release of air and gases, in violation of DEP rules and applicable technical manuals. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the systems, as designed, will include air release valves in compliance with DEP rules and applicable technical manuals. As such, gases will not accumulate and obstruct wastewater flow or explode. System Pressure Capacity Petitioners allege that E/One grinder pumps create pressure that exceeds the pressure capacity of the force main pipes, so that the pipes will burst and release sewage into the environment and onto property served by the pumps. In support, Petitioners presented the testimony of Donald Maynard and of Dr. Gunnar Hovstadius, both of whom testified that an E/One grinder pump34/ can generate pressures as high as 180 to 200 pounds per square inch ("psi"). According to both witnesses, if many grinder pumps are running simultaneously ——which they allege could occur as power is restored following a power outage——the pressure generated by the pumps could exceed the pressure capacity of the pipes, causing them to burst. Dr. Hovstadius relied on his experience with grinder pumps in Westport, Connecticut, following Hurricane Irene. There, sewage backed up into a home served by a grinder pump after power was restored following a lengthy outage. According to Hovstadius, numerous grinder pumps started up and simultaneously exerted substantial pressure on the wastewater system piping and other components, causing failure of the residence's grinder pump connection with the lateral pipe and allowing sewage accumulated in the force main to back up into the home. In rebuttal, Rene Mathews credibly testified that the normal operating pressure range for the E/One grinder pump is zero to 80 psi. Beyond 80 psi, the pump's performance falls into a non-typical operating range and the pump begins to heat up, causing thermal switches in the pump to shut the motor down at 100 to 120 psi. Thus, while it is remotely possible that the E/One grinder pumps could generate pressures in the range of 180 to 200 psi before failing, as a practical matter, operation of the pumps' thermal switches render this scenario highly unlikely. The system piping is certified for a working pressure of 160 psi, which exceeds the maximum 100 to 120 psi that may occur before pump shutdown; moreover, the piping must meet the American Water Works Association ("AWWA") standards C-901 and C-906, which means that the piping has a much higher pressure capacity——as high as 240 to 400 psi——specifically to withstand certain surge conditions. Additionally, even if many grinder pumps were simultaneously running when power is restored following an outage, the pumps would not exert a sudden maximum pressure surge on the system piping. This is because as each pump restarts and begins to run, the pressure in the pump gradually builds; if a pump reaches the 100 to 120 psi range——which, as previously noted, is outside the normal operating range——the thermal switch causes it to shut down. Also, as a practical matter, after a massive outage, power typically is restored to one neighborhood or area at a time rather than simultaneously to the entire power grid. Thus, any scenario involving all pumps simultaneously running at maximum pressure is highly unlikely. For these reasons, it is highly unlikely, under any reasonable circumstances, that pressure generated by the grinder pumps would cause the system piping to burst. Petitioners further assert that since the HDPE piping comprising the collection systems is only being tested to 150 psi, rather than to failure pressure of between 250 and 500 psi, it is not being adequately tested to ensure it can withstand higher pressure levels that may occur under extreme operating circumstances. Rene Mathews explained, and Al McLaurin confirmed, that pressure testing of the pipes, which takes place after construction is complete and before the systems are certified as operable by DEP, is performed to detect leaks that may have been created during the construction process——not to determine the failure pressure of the piping. The piping being used in the system is certified for a working pressure of 160 psi and meets the AWWA pressure capacity standards of 240 to 400 psi. Testing system pipes to failure pressure is neither necessary nor required under DEP rules or the applicable technical manuals, and is not desirable because it would damage or destroy system piping, unnecessarily adding to system cost. Dr. Hovstadius is a recognized expert in pumping systems, with worldwide experience in wastewater pump technology. He is knowledgeable about E/One grinder pumps and has experience with their use in one wastewater system in the northeastern U.S., where one grinder pump failed and flooded a home with sewage. However, he is not familiar with the specific details of the CRWS, having spent only a small amount of time before his deposition familiarizing himself with some of the documentation and information regarding the projects. He did not perform an independent engineering analysis of, or calculations regarding, the wastewater collection systems, and he was not aware of certain design features of the CRWS, such as check valves and the High Tide Technologies around-the-clock monitoring system,35/ which reduce the risk of a scenario as described in his testimony. By contrast, Ms. Mathews has extensive wastewater engineering experience, and the firm with which she is employed is the design engineer for the inner islands systems. She has previous experience designing systems with grinder pumps and possesses extensive knowledge and in-depth understanding of the CRWS and details specific to the wastewater collection systems. Mr. McLaurin has years of experience in wastewater systems engineering and extensive experience in regulatory review of wastewater water systems, so is very knowledgeable about DEP rule requirements and their application to wastewater systems. For these reasons, the testimony of Mathews and McLaurin is deemed more persuasive than that of Maynard and Hovstadius on the issue of system pressure capacity. Petitioners failed to demonstrate that the E/One grinder pumps will exert pressures exceeding the systems' piping pressure capacity, causing system piping bursting or failure. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the E/One grinder pumps used in the systems design will function as anticipated, will not exert pressures that exceed the systems' piping capacity, and will not cause system piping to burst or fail. Wastewater Service During Power Outage Petitioners allege that because E/One grinder pumps require electric power to operate, they are inappropriate for use in the Florida Keys, due to the likelihood of power outages during significant weather events such as hurricanes. Petitioners allege that during power outages, sewer service to homes served by grinder pumps will be interrupted, in violation of DEP rules and technical manuals, including the Ten States Standards and the Design and Specification Guidelines for Low Pressure Sewer Systems. They further allege that continued use of residential wastewater systems during power outages will result in the release of sewage from grinder pumps wet wells into the environment and onto properties served by the pumps. The CRWS design and operating protocol contain measures specifically directed to these issues. Specifically, the neighborhood/area lift station design includes a quick connect riser pipe that will be used to periodically flush the systems and can be used in emergencies to pump water out of the lift stations into the force mains and to the treatment plant, thus preventing lift station overflow. Additionally, each residential grinder pump includes an outlet connection for a mobile generator. During a power outage, FKAA can pump out residential grinder pump wet wells using mobile generators, pump trucks, or vacuum trucks. As a practical matter, residential grinder pump wet wells can contain wastewater volumes of two days' normal use without pump out and, with conservative use, can go for longer periods without being pumped out before overflowing. If pump out becomes necessary, the pump design and FKAA's operating protocol provides for such service.36/ FKAA has over 150 trucks it can deploy to pump out residential pump wet wells and lift stations, and will purchase an adequate number (estimated at 30 to 40) of 10,000 kilowatt generators for emergency use. FKAA has determined that it will need thirty utility personnel crews working in two shifts to maintain the CRWS system, and has undertaken the planning and budgeting necessary to ensure adequate personnel availability during emergencies. Additionally, FKAA anticipates having volunteer assistance in such situations. In the event FKAA requires further assistance in addressing widespread pump out issues during emergencies, Layne Heavy Civil and Gianetti Contracting37/ are obligated by contract to provide generators to FKAA for use to pump out residential wet wells and lift stations. FKAA also is a member of FlaWARN, Florida's network for wastewater emergency response, through which wastewater utilities provide mutual assistance during emergencies. Through this membership, FKAA is ensured that it will receive assistance from other utilities as needed to address pump out and other wastewater related issues during emergencies. The wastewater collection systems also incorporate the Grinder Pump Guardian monitoring system by High Tide Technologies for each residential grinder pump and each neighborhood/area lift station. Under this monitoring system, each pump is continuously (24 hours a day, 7 days a week) wirelessly monitored. If a pump malfunctions, such as when wastewater inflow exceeds wet well capacity while the pump is running, alarm data is transmitted by satellite to a computer central server, which automatically notifies utility personnel of the specific type of malfunction by high water alarm, communication alarm indicating power failure, or alarm indicating excessive runtime or starts and stops. Notifications will include the street address location of the pump for which the alarm was sent, as well as the type of event triggering the alarm. This monitoring system will enable pump malfunctions to be immediately detected and rapidly addressed by maintenance personnel, significantly decreasing the likelihood of wastewater spill or release into homes or the environment. FKAA has undertaken extensive planning and activity to establish specific procedures and protocol for addressing collections systems operation, even though it is not required under DEP rules to provide this information until it submits a request to DEP for certification to place the CRWS into operation. By that time, FKAA will have fully prepared its operations and maintenance procedures and protocol addressing all aspects of CRWS operation, including operation during emergency circumstances. This information is required by DEP rule to be kept in a manual that is available for use by operation and maintenance personnel and for inspection by DEP personnel. See Fla. Admin. Code R. 62- 604.500. Petitioners did not demonstrate that sewer service will be interrupted in violation of DEP rules. FKAA demonstrated, by a preponderance of the competent substantial evidence, that uninterrupted sewer service will be provided, including during extended power outages and other emergency circumstances, as required by DEP rules.38/ Shutoff Valves and Backflow Prevention Devices Petitioners allege that the systems design does not include backflow prevention devices, so that if lines become plugged, sewage will back up into residences and may, under certain circumstances, cause residential wastewater lines to burst. They presented Donald Maynard's testimony in support of this position. Maynard's testimony was contradicted by Mr. McLaurin's persuasive testimony and other credible evidence showing that the system design does contain backflow and shutoff valves to prevent wastewater from backing up from the force mains into the residential wet wells and into the residences served by the grinder pumps. FKAA demonstrated, by a preponderance of the competent substantial evidence that, in compliance with DEP rules and applicable technical manual requirements and standards, the systems design incorporates safety valves to prevent the backflow of wastewater into residences and spillage and release into the environment. Petitioners did not demonstrate that the systems, as designed, do not contain backflow and shutoff valves to prevent backflow of wastewater into residences, in violation of DEP rules and applicable technical manuals. Shaft Seal Leakage Petitioners allege that the grinder pumps' design violates DEP rules because the pumps do not contain shaft seal leakage device detectors. Petitioners' only evidence presented to substantiate this allegation is Hovstadius' testimony that he heard of an incident in which flushing dental floss into a sewage system resulted in the floss wrapping around the pump shaft, opening the seal, and allowing the pump motor to be flooded. However, Petitioners did not present any competent substantial evidence showing that not including shaft seal leakage devices on grinder pumps violates any applicable permitting requirements and standards. The competent, credible evidence establishes that shaft seal leakage devices are not required for the grinder pumps proposed to be used in the proposed collection systems, for two reasons: first, shaft seal leakage devices are not required for alternative wastewater collection systems; and second, the E/One grinder pumps that will be used in the systems are smaller than the five and ten horsepower pumps for which shaft seal leakage devices typically are required. Rather than including shaft seal leak detection devices, the systems instead incorporate the Grinder Pump Guardian monitoring system by High Tide Technologies for each residential grinder pump and each neighborhood/area lift station. As previously discussed, this monitoring system immediately notifies utility personnel of pump malfunction issues so that they can be rapidly addressed. Petitioners did not demonstrate that the lack of shaft seal detectors on the grinder pumps being used in the systems violates applicable DEP rules or requirements in the technical manuals applicable to alternative wastewater collection systems. Other System Design and Function Issues Petitioners allege other collection systems design flaws that they assert will cause system components to malfunction, resulting in environmental harm and property damage in violation of DEP rules. Dr. Hovstadius strongly criticized the use of E/One grinder pumps in wastewater collection systems to be located in the Florida Keys, due to the potential for flooding during storm surges. He contended that the pumps are not submersible for extended periods, so will leak and malfunction if submerged for long periods. Hovstadius opined that under such conditions, the pumps may short out and cease to function, causing sewage to back up onto the properties served by the pumps. In rebuttal, FKAA's witness Rudy Fernandez credibly testified that the E/One grinder pumps are submersible and will function properly while fully and continuously submerged. Mr. Fernandez is a licensed professional engineer in thirteen states, including Florida. He has approximately 40 years of public and private sector engineering experience in wastewater systems design, operation, and compliance. He is a member of the Water Environment Federation, having served on its technical practice committee at the time the committee published a revised version of the Manual of Practice No. FD-12, Alternative Sewer Systems (1986),39/ which applies to alternative collection/ transmissions systems pursuant to rule 62-604.400(4). As such, he is very knowledgeable about alternative wastewater collection systems, including the use of E/One grinder pumps in such systems. Although Dr. Hovstadius is an expert in pumping systems, his experience with E/One grinder pumps is relatively limited, particularly when compared to that of Mr. Fernandez. Further, Fernandez is very knowledgeable about the specific components of the CRWS, including the design and operation of the grinder pumps. By contrast, Hovstadius had only general knowledge about the CRWS, and was unaware of key details, such as the inclusion of safety check valves, to prevent sewage backflow into homes served by grinder pumps. Accordingly, Fernandez's testimony is deemed more persuasive than that of Hovstadius regarding E/One grinder pump submersibility. Petitioners have not shown that the E/One grinder pumps will malfunction as a result of being continuously submerged, thus releasing sewage into the environment and cause property damage. Petitioners also assert, through Hovstadius' testimony, that E/One grinder pumps are prone to malfunction from flushing common items such as baby wipes, dental floss, and tampons, or rinsing cooking grease down the kitchen drain. Rene Mathews credibly testified that such items are a problem for all types of wastewater system, not just low pressure systems or systems using E/One grinder pumps. To reduce the likelihood that such items are deposited into the wastewater collection system, FKAA will distribute flyers and host public education events to educate residents and the transient population regarding proper use of the wastewater collection systems. The O & M manual, which has been provided in draft form, includes a list of items that should not be introduced into any sewer system, and this list will be distributed to all properties served by the collection systems. Petitioners have not shown that E/One grinder pumps are any more susceptible to malfunction than other wastewater system components as a result of items being flushed or washed down drains. Additionally, FKAA has established that its systems operation protocol will include measures to reduce the likelihood of malfunction due to items being deposited in the systems. Petitioners also allege that E/One grinder pumps are inappropriate for use in the neighborhood/area lift stations. In support, they presented the testimony of Donald Maynard, who testified that having multiple grinder pumps in lift stations may be problematic during low occupancy periods in the Keys. The grinder pumps in each lift station function as a series, with a lead pump being activated at a particular wastewater level and each successive grinder pump thereafter activated by increasing wastewater levels in the lift station. Maynard contended that during low occupancy periods, the wastewater levels in the lift stations will be too low to activate the grinder pumps in the stations, causing sediments to accumulate and pipes to plug. Rene Mathews countered Maynard's position with credible testimony that grinder pumps are commonly used in designing lift stations in low pressure wastewater collection systems. She explained that the neighborhood/area lift stations have been designed so that the grinder pumps will be continuously submerged as required to meet the Class I, Division 2 NEC and NFPA Standards. Shop drawings submitted during construction will depict neighborhood/area lift station water levels sufficient to fully submerge the grinder pumps, in compliance with the lift stations' design. As additional support for their position that grinder pumps are inappropriate for use in the neighborhood/area lift stations, Petitioners cite a provision in the O & M manual stating that "grinder pumps are not designed to be small lift stations." This statement must be considered in context. The statement appears in the E/One grinder pump "Product Introduction" chapter in the Service Manual for the pumps, which is part of the O & M manual. The full discussion in which this statement appears reads: "Environment One Grinder Pumps are designed to grind and pump domestic sewage. The grinder pumps are not designed to be small lift stations. They are not capable of handling waters with high concentrations of mud, sand, silt, chemicals, abrasives, or machine waste." In context, it is apparent that this statement is directed at informing the user regarding the types of materials that should not be disposed of in a system using E/One grinder pumps; it does not state that E/One grinder pumps are inappropriate for use in lift stations. As previously discussed, FKAA's O & M manual contemplates public education and outreach efforts to help assure that materials and items that would damage the pumps, as well as other wastewater system components, are not discarded in the systems. To verify that the wastewater collections systems have been correctly designed for their intended use and will not cause environmental or property damage, FKAA retained Stephen Wallace to perform an independent analysis and evaluation of every aspect of the proposed systems. Mr. Wallace is a wastewater systems engineer having over 30 years of experience in hydraulic systems design. Over his career, Wallace has designed and constructed over 140 low pressure systems, including more than 100 systems using E/One grinder pumps. Although Wallace has not previously been involved with projects in the Florida Keys, while visiting the Keys, he personally observed physical and environmental conditions, such as high ground water levels, sandy soils, flat topography with threat of flooding, sensitive flora and fauna, and seasonal population fluctuations, that are comparable to those attendant to projects on which he has worked in Australia. Under Wallace's direction, a professional team consisting of engineering specialists in pumps and pump stations, low pressure wastewater systems design, and hydraulic modeling, and a mathematician independently analyzed and evaluated the CRWS low pressure systems design to determine whether they would provide long-term satisfactory performance. The team selected two representative project areas in Upper Sugarloaf Key and Ramrod Key and independently performed a hydraulic engineering analysis using a model specifically developed for modeling the performance of low pressure systems, then compared their results to the designs by FKAA's design engineers, Mathews Consulting and Chen Moore. Their results validated the designs prepared by Mathews and Chen Moore. Based on his team's analysis and evaluation, Wallace credibly and persuasively opined that the CRWS, as designed, will be successfully implemented and will not cause environmental pollution. FKAA witness Rudy Fernandez also testified, credibly, that the wastewater collection systems have been correctly designed and adequately cover all concerns that Petitioners have raised. Fernandez verified that the systems design includes safety valves to prevent backflow from the system into homes served by the systems. He concurred with Mathews and McLaurin that testing the transmission piping to 150 psi is sufficient to determine whether leakage points were created during construction, and confirmed that it is inappropriate to pressure test the pipes to failure because, as a practical matter, the system will not experience pressures high enough to cause pipe bursting or other failure. He agreed with Mathews' and Chen Moore's system design 4.0 peaking factor, and disagreed with Petitioners' witnesses' testimony that the pumps will exert pressure sufficient to cause system pipes to burst upon power restoration following an outage. Fernandez opined that there is a substantial likelihood that the systems, as designed, will function successfully, and that it is unforeseeable that the collections systems, as designed, will cause pollution. Petitioners failed to prove that including E/One grinder pumps in the wastewater collection systems is inappropriate and will result in systems' malfunction and consequent spillage and release of wastewater into the environment and onto the properties served by the systems. FKAA demonstrated, by a preponderance of the competent substantial evidence, that the E/One grinder pumps will function normally when fully submerged and are appropriate for use in lift stations. Accordingly, including them in the systems' design will not cause the systems to malfunction and release wastewater into the environment and onto the properties served by the pumps, in violation of DEP rules. Petitioners' Standing Respondents challenge the standing of DTP40/ and the individual petitioners in these proceedings. DTP is a not-for-profit corporation incorporated under the laws of the state of Florida. Its mailing address is Post Office Box 1956, Big Pine Key, Florida 33043. DTP's corporate purpose is to oppose the use of grinder pump systems proposed by FKAA and permitted by DEP as part of the implementation of the CRWS. In addition to challenging the Permits at Issue in these proceedings, DTP actively participated in hearings before the Monroe County Board of County Commissioners ("BOCC") in an effort to convince the BOCC to reduce or eliminate the use of grinder pumps as part of the CRWS. DTP has approximately 265 members, a substantial number of whom own and/or reside on property that may be serviced by a grinder pump as proposed by the Permits at Issue. The evidence also establishes that a substantial number of DTP's members own or reside on property proximate to properties that may be served by grinder pumps. DTP alleges that, for a variety of reasons, using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps. This, in turn, would harm groundwater, the nearshore environment, and DTP's members' properties. A substantial number of DTP's members may be requested to grant an easement to FKAA for the installation and maintenance of the grinder pumps that will serve their property. These members assert they will be injured by losing their ability to control who has access to their property. They also allege they will be injured due to the potential for collection systems malfunction alarms to interfere with their enjoyment of their property. As discussed above, grinder pumps require electricity to operate and therefore cannot operate during power outages unless alternative sources of electric power, such as generators, are used. Therefore, during extended periods of electrical outages, DTP members whose property is served by the grinder pumps may be asked to conserve water usage until electric power is restored. Continued use of residential systems served by grinder pumps during extended power outages, absent pump out according to operating protocol, could result in discharge of raw sewage from the wet wells. If not promptly and adequately cleaned up, this may create a human and environmental health risk and adversely affect nearshore waters. A substantial number of DTP's members use and enjoy the nearshore waters of the lower Florida Keys for various water-based recreational activities including fishing, kayaking, boating, canoeing, bird watching, swimming, and lobstering. Petitioner Theresa Raven is a resident and owner of property on Big Pine Key. Her address is 29462 Geraldine Street, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 18 is issued, Raven's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Raven uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Daniel Fitch is a member of DTP and an individual petitioner in DOAH Case No. 14-2415, challenging the issuance of Permit 18. Fitch is a resident and owner of property on Big Pine Key. His address is 29462 Geraldine Street, Big Pine Key, Florida 33043. His home is served by the CRWS. If Permit 18 is issued, Fitch's property will be serviced by an E/One grinder pump. Accordingly, he will be asked to grant an easement over his property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages he may be asked to conserve water usage until electric power is restored. Fitch uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. He asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and his property. Petitioner Jim Skura is a member of DTP and an individual petitioner in Case No. 14-2416, challenging issuance of Permit 19. Skura is a resident and property owner on Sugarloaf Key. His address is 19860 Caloosa Street, Sugarloaf Key, Florida 33042. His home is served by the CRWS. If Permit 19 is issued, Skura's property will be serviced by an E-One grinder pump. Accordingly, he will be asked to grant an easement over his property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages he may be asked to conserve water usage until electric power is restored. Skura uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. He asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and his property. Petitioner Margaret Schwing is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. She is a resident and property owner on Big Pine Key South. Her address is 29756 Springtime Road, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 27 is issued, Schwing's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Schwing uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Gail Kulikowsky is a member of DTP and an individual petitioner in DOAH Case No. 14-2417, challenging the issuance of Permit 27. She is a resident and property owner on Big Pine Key. Her address is 30788 Pinewood Lane, Big Pine Key, Florida 33043. Her home is served by the CRWS. If Permit 27 is issued, Kulikowsky's property will be serviced by an E/One grinder pump. Accordingly, she will be asked to grant an easement over her property to FKAA for the installation and maintenance of the grinder pump, and during extended periods of electrical outages she may be asked to conserve water usage until electric power is restored. Kulikowsky uses and enjoys the nearshore waters of Big Pine Key for water-based recreational activities such as swimming, snorkeling, boating, and nature observation. She asserts that using grinder pumps as part of the CRWS will directly cause or indirectly result in the release of raw sewage and wastewater into the environment and onto properties served by the pumps, causing harm to groundwater, the nearshore environment, and her property. Petitioner Deborah Curlee41/ is a member of DTP and an individual petitioner in Case No. 14-2420, challenging the issuance of Permit 25. She is a resident and owner of property on Cudjoe Key. Her address is 1052 Spanish Main Drive, Cudjoe Key, Florida 33042. Her property will not be served by an E/One grinder pump; however, she lives less than a quarter-mile from a proposed lift station and less than a mile from two other proposed lift stations. She is concerned that if there is a pump failure at these lift stations resulting in a sewage spill, the area in which she lives, including her property, would be negatively impacted and the sewage would flow into the groundwater and nearshore waters. She uses and enjoys the nearshore waters of Big Pine Key for water-based and other recreational activities, including fishing, boating, kayaking, snorkeling, picnicking, and engaging in nature observation and enjoyment activities as a member of entities whose purpose is to protect the environment. Entitlement to Permits at Issue As discussed above, FKAA met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permits at Issue by entering into evidence the applications and supporting materials for the wastewater collection systems and the notices of intent for each of the Permits at Issue. In addition, FKAA presented persuasive, competent, and substantial evidence far beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate entitlement to the Permits at Issue. As discussed above, Petitioners failed to prove, by a preponderance of the competent substantial evidence, that the wastewater collection systems at issue, as designed, do not comply with DEP rules and applicable technical standards and requirements, resulting in environmental harm and property damage. On rebuttal, FKAA and DEP thoroughly addressed and rebutted each of the grounds that Petitioners allege justify denial of the Permits at Issue. Accordingly, Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the issuance of Permit No. 295404-018-DWC/CM (Permit 18), at issue in Case No. 14-2415; Approving the issuance of Permit No. 295404-019-DWC/CM (Permit 19), at issue in Case No. 14-2416; Approving the issuance of Permit No. 295404-027-DWC/CM (Permit 27), at issue in Case No. 14-2417; and Approving the issuance of Permit No. 295404-025-DWC/CM (Permit 25), at issue in Case No. 14-2420. DONE AND ENTERED this 3rd day of February, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2015.
The Issue The issue in this case is whether sanctions, including attorney's fees and costs, should be assessed against Respondent, the Lake Region Audubon Society, Inc. (LRAS), and awarded to Petitioner, Spanish Oaks of Central Florida, LLC (Spanish Oaks), under Sections 57.105, 120.569(2)(e), and 120.595(1), Florida Statutes,1 after LRAS unsuccessfully challenged the Southwest Florida Water Management District's (SWFWMD's) issuance of Environmental Resource Permit (ERP) Number 44025789.001 to Spanish Oaks.
Findings Of Fact LRAS' Amended Petition SWFWMD issued ERP 44025789.001 to Spanish Oaks on April 27, 2004. On May 11, 2005, Donna Stark, a member of LRAS, made a presentation to the LRAS board of directors asserting that Spanish Oaks was using one-to-three sinkholes to collect runoff water, instead of digging retention ponds, contrary to legal requirements and was polluting the underlying aquifer. She asked LRAS to consider filing an administrative challenge to the ERP. After the presentation, the LRAS board decided that its five-member Steering Committee--which took the place of a president, rotated responsibility for conducting board meetings, and functioned like an executive committee--would continue to investigate and make a decision as to what role LRAS should have in the future. The Steering Committee reviewed the information presented by Starks, decided to file a challenge, and invited Starks to help draft a Petition for Administrative Proceeding (LRAS Petition), which was signed by four members of the Steering Committee between May 31 and June 2, 2005, and was filed with SWFWMD on June 6, 2005. Because the timeliness of the LRAS Petition could not be ascertained from the allegations, SWFWD dismissed the Petition without prejudice. On July 11, 2005, an Amended Petition was filed, clarifying that LRAS was orally informed about the Spanish Oaks ERP by one of its members, later identified as Donna Stark, on May 10, 2005. The Amended Petition was signed by LRAS Steering Committee/Acting President Carrie Plair on July 6, 2005, and filed with SWFWMD, which determined that the Amended Petition was timely filed and substantially complied with the requirements for a petition and referred it to DOAH, where it was given DOAH case number 05-2606 and scheduled for a final hearing on September 22-23, 2005. The Amended Petition alleged in ¶5: The following evidence of the karst nature of the site is submitted: On February 3, 2005, in a meeting of Donna Stark, a member of [LRAS], with Sherry Windsor and biologist Jeff Whealton, the District personnel called in their geologist Tom Jackson for his professional opinion on this issue. Based on his training in karst geology and years of field observation at this site (prior to current ownership), Mr. Jackson referred to this structure as a fracture (an elongate sinkhole). Another individual who has graduate training in karst topography and who has studied this site for several years also has informed [LRAS] that this sinkhole has a vertical pipe and was an active "surface-to- ground water system" (Affidavit of Charles Cook - Ex. 8) Petitioners have consulted professionals who specialize in geological and geotechnical engineering and who are well recognized for their work in the state. Based on the available information they have expressed concern and have indicated that a thorough and detailed investigation consisting of geophysical and geotechnical methods should be performed to address the concerns of this Petition. Donna Stark, a member of [LRAS], observed first-hand the sinkhole in the southeast portion of Spanish Oaks collapsed during construction of the retention pond (perhaps due to heavy equipment or due to heavy rains of the fall 2004 hurricanes). Refer to Affidavit - Ex. 9. Paragraph 5. iv) of the Amended Petition continued and asserted that “[o]n November 13, 2004, LRAS member Donna Stark was informed by a man who had worked on the Spanish Oaks site [later identified as George Wilt] that the retention ponds were 30 feet deep.” It also asserted that LRAS member Donna Stark observed firsthand a sinkhole collapse that allegedly occurred in the southeast portion of Spanish Oaks site during construction of Retention Pond A. The Amended Petition alleged that on January 25, 2005, Donna Stark, along with a state employee (later identified as Timothy King), observed a "very large cone- shaped depression with smooth steeply-sloping sides – so steep that Donna Stark was nervous that the front-end loader driving up and down the slopes could end up in the aquifer if he lost traction in the loose unconsolidated sands. In the center of the depression was a lake perhaps 50 feet in diameter." The Amended Petition further alleged that “Donna Stark judged the distance from the top of the ground surface to the water surface to be about 15 feet.” It also asserted: "On February 4, 2005, Donna Stark went to the District office in Bartow to discuss this issue with the engineer in charge of the project, Sherry Windsor, biologist Jeff Whealton and geologist Tom Jackson. The engineering worksheet in the file shows a required depth of 6.5 feet from pond bottom elevation (136.5') to top of bank elevation (143.0')[.] It was suggested by one of the District scientists that the retention pond had collapsed during construction to create the observed depth. This is the only logical explanation in the opinion of Petitioner since [that would be a violation and grounds for revocation, as well very expensive, and would serve no useful purpose]." It also alleged that, "[w]hen Donna Stark returned on February 10, 2005, the area had been filled with sand to the required elevation and was flat-bottomed." On the clay core issue, paragraph 5. iv) of the Amended Petition alleged: "When Donna Stark spoke to William Hartmann, [SWFWMD] Surface Waters Regulation Manager, on April 21, 2005 he indicated that he had received no phone call from Permittee and that District staff had not inspected the clay core construction. At that time, the 'As-Built' inspection had been requested." The "Concise Statement of Ultimate Facts Alleged" included the statement: "Permittee also did not inform the District, as required, when (and if) a clay core was constructed in the berms. Serious impacts on adjacent property may be expected if the clay cores were not properly constructed." The Amended Petition in ¶6 alleged the following as disputed issues of material fact: the Permit allows construction of a retention pond in a sinkhole in the southeast portion of the site; construction of a retention pond in a sinkhole creates a danger to public health and safety; Spanish Oaks failed to notify SWFWMD that it was beginning construction of the clay cores of certain berms surrounding the retention ponds, as required by a permit condition so that SWFWMD could inspect during the construction; and Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures. LRAS’ Amended Petition asserted in ¶7. ii) that the Spanish Oaks development violated Florida Administrative Code Rule 62-522.300(1) and (3),2 which provided in pertinent part: (1) . . . [N]o installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. * * * (3) Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. It was alleged that this violation required reversal or modification of the proposed agency action. It was later revealed that the professionals referred to in paragraph 5. iii) of the Amended Petition included three engineers, one named Larry Madrid, and "many, many professionals of different government agencies." The attached "affidavit" (actually, an unsworn statement) of Charles Cook set out the basis of his knowledge of karst geology in general, and the Spanish Oaks site in particular, and his "conclusion that three depressional features existed on the subject parcel and I personally explored a subterranian [sic] void in a depressional sinkhole located in the southern part of the parcel in question, and believe it was an active recharge conduit connecting with subsurface aquifers." The attached "affidavit" (actually, an unsworn statement) of Donna Stark included the statement: "I hereby certify that the information submitted to [LRAS] concerning Spanish Oaks is true and accurate to the best of my knowledge." It also repeated some of the allegations in the Amended Petition and gave her "qualifying credentials for the above observations and interpretations" including: Ph.D. in Ecology from the University of Minnesota - 1971 with thesis title "Paleolimnology of Elk Lake, Itasca State Park, Northwestern Minnesota" Post-doctoral Research at Limnological Research Center, University of Minnesota 1972-1973 - published 1976 Science teaching at Southeastern College in Lakeland 1973-1974. Full Professor. The Amended Petition also was buttressed with citations cited to several scientific publications about karst geology, sinkholes, and stormwater retention ponds. It is clear that LRAS relied heavily on Donna Stark and her educational background and scientific knowledge, her alleged personal knowledge, and her alleged discussions with various professionals, including District personnel. Starks actually drafted almost all of the Petition and Amended Petition for the LRAS Steering Committee. Proceedings in Case 05-2606 LRAS was represented in Case 05-2606 by Paul Anderson, a member of LRAS' Steering Committee. By letter filed July 27, 2005, LRAS requested that the ALJ enter an order requiring a halt to all work on Spanish Oaks. On August 1, 2005, Spanish Oaks filed a Motion to Dismiss, or in the Alternative, Motion to Strike. The grounds were that there was no jurisdiction to enforce compliance with permit conditions, which the prayer for relief in the Amended Petition seemed to seek, and that allegations of non-compliance with ERP conditions should be stricken as irrelevant to issuance of the ERP. Discovery was initiated in Case 05-2606. In addition, in response to concerns expressed in the Amended Petition, Spanish Oaks hired Sonny Gulati, a professional engineer and expert in the field, to undertake a sinkhole investigation on the Spanish Oaks property using ground penetrating radar (GPR) and standard penetration testing (SPT). Mr. Gulati concluded that there were no active sinkholes on the site and prepared a report to that effect. Spanish Oaks presented the report to LRAS in August 2005; Spanish Oaks also served LRAS with a Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes (Motion), and informed LRAS that Spanish Oaks would file the Motion within 21 days if LRAS did not drop its opposition to the ERP. The Motion specifically alleged the impropriety of the sinkhole and clay core issues raised in the Amended Petition but did not mention the erosion control issue. LRAS' first attempt at discovery was defective in that its interrogatories and requests for production were directed to witness Tom Jackson instead of SWFWMD. SWFWMD moved for a protective order, which was granted on August 17, 2005. LRAS promptly served interrogatories and requests for production on SWFWMD and Spanish Oaks. Also on August 17, 2005, an Order was entered explaining to LRAS the procedure for obtaining qualified non- attorney representation, and an Order on Motion to Dismiss or Strike and Request for Stop-Work Order was entered. The latter Order recognized that the peculiar procedural posture of the case (namely, that LRAS' Amended Petition was timely even though it challenged an ERP purportedly issued in April 2004) contributed to the incorrect wording of LRAS' prayer for relief; placed a gloss on LRAS' prayer for relief as seeking denial, not revocation, of the ERP; and declined to strike allegations of non-compliance with the ERP, as they could be relevant to LRAS' challenge to the provision of reasonable assurance by Spanish Oaks. The stop-work request was denied for lack of jurisdiction to give injunctive relief in an enforcement matter. (Unbeknownst to the ALJ, on July 22, 2005, SWFWMD approved the transfer of the ERP to the operation phase, with responsibility for future operation and maintenance transferred to the Spanish Oaks of Central Florida Homeowners Association (HOA), notwithstanding the requirement of Section 120.569(2)(a), Florida Statutes, that SWFWMD take no further action on the ERP except as a party litigant.) By letter dated August 26, 2005, LRAS requested that Spanish Oaks allow its retained engineer to enter, inspect, and conduct investigations on the Spanish Oaks site. Spanish Oaks denied this request. At the end of August and in early September 2005, the parties exchanged hearing exhibits and witness lists in accordance with the Order of Pre-Hearing Instructions. When LRAS followed the procedure for obtaining approval of qualified, non-attorney representation by Mr. Anderson, Spanish Oaks objected to Mr. Anderson's qualifications. On September 7, 2005, an Order Authorizing Qualified Representation was entered. It recognized the short- comings in Mr. Anderson's qualifications, and the possibility that representation by a Florida attorney would benefit LRAS and make the proceeding fairer to all (including LRAS). Also on September 7, 2005, Spanish Oaks filed its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. Cf. Finding 14, supra. On September 12, 2005, LRAS filed a request for permission to add Mr. Madrid to its witness list. On September 14, 2005, an Order Denying, without Prejudice, Request to Add Witness was entered because the request did not indicate whether LRAS had conferred with the other parties. On September 15, 2005, Spanish Oaks filed a Response in Opposition to Request for Entry upon Land for Inspection and Other Purposes and Motion for Protective Order. Spanish Oaks asserted that it no longer had control over the retention ponds, which were controlled by the HOA, and that home construction was in progress, making timing and coordination of the request problematic, if not impossible. Spanish Oaks also asserted that, if the inspections were allowed, multiple issues would have to be addressed, including potential liability and insurance issues, and that more detail would be required to ensure that LRAS' inspection, which could include drilling sample borings in the retention ponds, would not compromise the integrity of the stormwater system and retention ponds. By letter dated September 19, 2005, LRAS requested that Spanish Oaks agree to the addition of Mr. Madrid as a witness. By another letter dated September 19, 2005, LRAS requested that Spanish Oaks produce back-up documentation supporting Mr. Gulati's sinkhole investigation report, including site maps of GPR test locations, the uninterpreted GPR raw data, the GPR strip charts, as well as the actual SPT soil borings, because LRAS' retained expert geologist, Marc Hurst, had advised LRAS that the information was necessary for him to determine the reliability of Mr. Gulati's report and conclusions. A telephone hearing was held on September 20, 2005, on LRAS' requests to add Mr. Madrid to its witness list, for Mr. Hurst to be allowed entry on the Spanish Oaks site to inspect and investigate, and for Mr. Hurst to be allowed to review the back-up documentation and SPT borings supporting Mr. Gulati's report. No party ever requested a continuance of the final hearing (set to begin in just two days), and the request to add Mr. Madrid as a witness was denied as too late. It is not known what Mr. Madrid's testimony would have been. LRAS dropped its request for entry on land in the face of the opposing arguments from Spanish Oaks. As to the back-up documentation supporting Mr. Gulati's report, Mr. Gulati was required to bring the documents to the final hearing but Spanish Oaks was not required to produce the SPT borings, which were represented to be numerous and a large quantity of soil. Immediately before the start of the final hearing, Spanish Oaks filed both a Motion in Limine, which was denied, and a Motion for Summary Recommended Order. Ruling on the pending motions was deferred. Spanish Oaks' Motion for Summary Recommended Order Motion was based on arguments that LRAS' filing of the Amended Petition was "ultra vires" and that LRAS had no standing. These issues (which ultimately were resolved in favor of LRAS and against Spanish Oaks) were the focus of much of the effort of Spanish Oaks in discovery and in the final hearing, as reflected in the Recommended Order in the case. Recommended and Final Orders in Case 05-2606 After the final hearing, Spanish Oaks filed a proposed recommended order suggesting that jurisdiction to rule on its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, should be retained. A Recommended Order that ERP 44025789.001 be issued to Spanish Oaks was entered in Case 05-2606 on November 10, 2005. Jurisdiction was retained to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. On November 30, 2006, SWFWMD entered a Final Order adopting the Recommended Order in its entirety and issuing ERP 44025789.001 to Spanish Oaks. As to the ERP criteria, the Recommended Order found in pertinent part: Alleged Sinkholes * * * Marc Hurst, a geologist who testified for LRAS, opined that Mr. Gulati’s sinkhole investigation was insufficient to demonstrate whether or not the Spanish Oaks retention ponds were constructed over sinkholes.11 However, Mr. Hurst offered no opinion as to whether the retention ponds are located over active sinkholes. Nor did Mr. Hurst specifically disagree with Mr. Gulati’s conclusion that the Spanish Oaks retention ponds have not been impacted by active sinkholes.12 To the contrary, Mr. Hurst admitted that the retention ponds were holding water on the day that he observed them--indicating that to him that the ponds were not acting as a strong conduit to the aquifer. Mr. Gulati also noted the significance of the presence of water in the ponds, stating that, if there were active sinkholes in the ponds, they would not hold water.13 EN. 11 - Notably, Mr. Hurst has only participated in four sinkhole investigations and reviewed the reports of approximately six other such investigations, while Mr. Gulati has conducted between 700 and 800 during the past ten years. EN. 12 - The anecdotal testimony of Charles Cook and Tom Jackson regarding their observations of depressions and “cracks” at the site several years earlier did not support a finding that there is an active sinkhole. Mr. Jackson, a geologist for SWFWMD, was not willing to draw such a conclusion. EN. 13 - Mr. Gulati acknowledged that, in areas where the aquifer is under artesian pressure, an active sinkhole will hold water. However, that aquifer condition does not exist in the vicinity of Spanish Oaks. T. 358. The only suggestion of any sinkhole- related damage to the retention ponds came from Donna Stark, who testified that George Wilt--a heavy equipment operator at the site incorrectly identified by Ms. Stark as “an employee of Spanish Oaks”--told her that there had been a sinkhole collapse during the excavation of Pond A. This hearsay testimony was directly contradicted by Mr. Wilt himself, who testified that he made no such statement. Despite the allegation in LRAS’ petition regarding observations of collapse of sinkhole by Donna Stark, Ms. Stark herself admitted at hearing that she did not witness any actual collapse. Rather, she testified that, on January 25, 2005, she saw what she believed to be the aftermath of a sinkhole collapse. Stark may have been confused by the amount of excavated material being stored on the ground surface around the pond. 43,906 cubic yards of dirt was excavated from Pond A alone and was stacked to a height of 8-10 feet higher than the natural ground elevation. Others who observed the site on January 25, 2005, saw no evidence of a sinkhole collapse. Tim King, a Florida Fish and Wildlife Conservation Commission employee who was with Ms. Stark on January 25, 2005, merely reported seeing pond excavation in process. Laura Howe, a SWFWMD employee who inspected the site on that date, observed that “[i]t appears depth of ponds are [p]robably close to permitted depth.” Moreover, Ms. Stark admits that, on February 10, 2005, she observed the ponds to be “[s]even and a half feet, or six and a half, whatever it should be.” Ms. Stark’s suggestion that the collapse was filled in between January 25 and February 10, 2005, is belied by testimony that repairing a sinkhole collapse of the size suggested by Ms. Stark would have required much more material than was available. (No dirt was imported onto the site.) The evidence admitted at hearing requires a finding that there was no sinkhole collapse onsite. Spanish Oaks provided reasonable assurance that the System was designed and constructed to include sufficient separation between the pond bottoms and the Floridan Aquifer to prevent groundwater contamination. Construction of Berms LRAS contended in its Amended Petition that Spanish Oaks failed to give notice prior to constructing clay cores in some of the berms onsite, as required as a condition of the ERP, and that this failure constituted failure to provide reasonable assurances.14 EN. 14 - The Amended Petition actually alleged that this was a permit condition violation requiring revocation of the ERP. However, it was ruled prehearing that "the Petitioner's request for revocation actually is a request for a final order denying Spanish Oaks' application for a permit" and that "the allegations of non- compliance with permit conditions should not be stricken but instead should be considered only as they might relate to Spanish Oaks' provision of required reasonable assurances for issuance of a permit." See Order on Motion to Dismiss or Strike and Request for Stop-Work Order, entered August 17, 2005. The interconnection of the three ponds that are part of the System will allow them to function as one pond, while a perimeter berm around the entire Spanish Oaks project will ensure that surface water runoff is retained onsite and directed toward the ponds. Ponds A and C are located, respectively, at the southeast and northeast corners of Spanish Oaks.15 The design plans submitted with the ERP application indicated that the berms alongside the eastern side of Ponds A and C are to include clay cores, a design feature that was included as a specific condition in the ERP. The purpose of the clay cores was to prevent offsite impacts caused by lateral movement of water. EN. 15 - Pond B is centrally located in the Spanish Oaks’ interior. The specific conditions of the ERP also required that Spanish Oaks notify SWFWMD's "Surface Water Regulation Manager, Bartow Permitting Department [William Hartmann], at least 48 hours prior to commencement of construction of the clay core, so that District staff may observe this construction activity." LRAS proved that Mr. Hartmann did not personally receive a phone call prior to the construction of the clay cores, as required by the ERP, and that SWFWMD staff did not observe the construction. Mr. Hartmann explained that this constituted a permit condition compliance issue which would prevent the ERP from being transferred to the operation phase until SWFWMD was assured that the clay core was, in fact, constructed as required. To confirm proper construction of the clay core, Spanish Oaks undertook soil borings. SWFWMD staff engineer Sherry Windsor was onsite to observe the soil borings. Spanish Oaks also submitted a report from its engineering consultant certifying that the clay cores had been properly constructed in accordance with the ERP. SWFWMD typically relies on a project engineer’s signed and sealed certifications of compliance matters. SWFWMD staff observations and the certification provided by the Spanish Oaks engineer satisfactorily resolved the issue of proper clay core construction. Failure to notify Mr. Hartmann prior to construction, as required by the ERP, does not undermine Spanish Oaks' provision of the necessary reasonable assurance for issuance of the ERP. Endnote 3 at Finding of Fact 4 in the Recommended Order in Case 05-2606 stated: "The Amended Petition also alleged that Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures, but no evidence was presented by LRAS on this issue, which appears to have been abandoned." As to the ERP criteria, the Recommended Order concluded in pertinent part: The applicable criteria for the issuance of a standard general ERP for the Spanish Oaks project are set forth in Rules 40D-4.301 and 40D-4.302, as well as SWFWMD's Basis of Review (BOR), which is made applicable pursuant to Rule 40D-4.301(3). LRAS’ challenge to the ERP alleges the presence of a sinkhole or a sinkhole collapse in one or more of the retention ponds for the Spanish Oaks subdivision, and the impact that such alleged sinkhole or sinkhole collapse would have on conditions for issuance relating to groundwater quality. LRAS’ case reflects a basic misperception of the permitting criteria applicable to surface water management system retention ponds. Section 6.4.1.b. of the BOR, which establishes specific design criteria for retention areas, requires as follows: Depth – The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District, where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer. As found, the Spanish Oaks retention ponds comply with this criterion. LRAS also contends that the Spanish Oaks retention ponds violate Rule 62- 522.300, a rule which, in LRAS’ view, prohibits the location of a stormwater retention pond in or over a sinkhole. LRAS’ reading of the rule is incorrect. Rule 62- 522.300(1), with certain exceptions not relevant here, provides that no installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. The purpose of a zone of discharge is to provide a mixing zone “extending to the base of the designated aquifer or aquifers, within which an opportunity for the treatment, mixture or dispersion of wastes into receiving ground water is afforded.” Fla. Admin. Code R. 62-520.200(23). No evidence introduced at hearing suggests that the surface water runoff that infiltrates through the bottom surfaces of the Spanish Oaks retention ponds, and then travels approximately 70 feet through soil before reaching the Floridan aquifer, will exceed applicable ground water criteria when it reaches the aquifer. For that reason, the Spanish Oaks retention ponds do not need a zone of discharge. Rule 62-522.300(3) provides that Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. (Emphasis supplied). Classes F-1, G-1, and G-II groundwaters are designated for potable use and are located within an aquifer. Fla. Admin. Code R. 62-520.410. “Aquifer” is specifically defined as “a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells, springs or surface water." Fla. Admin. Code R. 62- 520.200(2). Unless the alleged sinkholes allowed "direct contact" with the Floridan Aquifer, a zone of discharge would be permitted, assuming one were needed. No evidence introduced at hearing suggests that discharges from the retention ponds will come into direct contact with Class G-1, Class F-1, or Class G-II groundwaters. Instead, the discharges from the Spanish Oaks ponds only indirectly contact a drinking water aquifer, after infiltrating through tens of feet of separating soil layers. LRAS has not identified any applicable rule that prohibits the location of a retention pond in or over a relic sinkhole. Indeed, the record establishes that the presence of a sinkhole in or under a retention pond is problematic only if sinkhole activity affects the approved design of the retention pond. See Findings 47 and 49, supra. LRAS’s assertion of a sinkhole collapse at Spanish Oaks during the time frame alleged is contrary to the greater weight of the evidence, which established that the ponds have been constructed and are operating as designed and that there is no active sinkhole on the Spanish Oaks site that adversely affects the quality of receiving waters such that state water quality standards would be violated, or that otherwise affects Spanish Oaks’ ability to provide reasonable assurance of meeting applicable permitting conditions. LRAS offered no evidence to establish that water percolating through the Spanish Oaks retention ponds will come into direct contact with a drinking water aquifer or that a state water quality standard would be violated by the project. The greater weight of the evidence established that the Spanish Oaks retention ponds comply with the applicable construction requirement as stated in BOR Section 6.4.1.b. There is more than sufficient soil underlying the Spanish Oaks retention ponds to assure compliance with this requirement. As found, Spanish Oaks' failure to notify Mr. Hartmann before beginning construction of the clay core berm does not prevent Spanish Oaks from providing reasonable assurance that permit criteria will be met. As a result, Spanish Oaks has met its burden of proof and persuasion that all conditions for issuance of the permit have been satisfied and that it is entitled to the requested ERP. As suggested in the proposed recommended order filed by Spanish Oaks in Case 05-2606, the Recommended Order retained jurisdiction to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. Spanish Oaks "renewed" the motion by filing its Petition in this case. SWFWMD's Final Order adopted the Recommended Order in its entirety. Petition in Case 05-4644F The Petition in this case asserts essentially that LRAS had no competent substantial evidence: that there was an active sinkhole under the retention ponds on the Spanish Oaks site; that the required clay core was not installed; or that erosion control measures were not used. As to the sinkhole allegations, Spanish Oaks asserts that, even if there were a reasonable basis for filing the Amended Petition in Case 05- 2606, it should have been withdrawn upon receipt of Mr. Gulati's report and Spanish Oaks' Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. As indicated in the findings of fact and conclusions of law in Case 05-2606, Donna Stark and Charles Cook did not testify precisely as LRAS had been led to believe from their "affidavits" in the Amended Petition that they would. Likewise, the testimony of Timothy King and George Wilt was not supportive of Donna Stark's "affidavit" as to a sinkhole collapse during construction on the site, or her testimony as to Mr. Wilt's statements to her. The testimony of Tom Jackson and Charles Cook also did not completely support Donna Stark's "affidavit" as to the existence of sinkholes on the site. But while the use of "discovery" to establish the testimony of those individuals before the hearing certainly might have alerted LRAS to problems with the "affidavits" it was relying on, it was not incumbent on LRAS to undertake such "discovery" in order to avoid sanctions. It is not found that LRAS's prosecution of its Amended Petition in reliance on those "affidavits" was frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS' prosecution of the Amended Petition after receiving Mr. Gulati's report and notice of Spanish Oaks' intention to file its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, also was not proved to be frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS attempted to follow up on Mr. Gulati's report so as to enable its retained expert, Mr. Hurst, to verify whether it should be accepted as conclusive proof of the hydrogeology of the site, and perhaps assure LRAS that its Amended Petition could be withdrawn, but LRAS' attempts were unsuccessful. As a result, LRAS was left to presentation of Mr. Hurst's testimony based on the information he had. Mr. Hurst testified to the likely existence of at least three sinkholes at the site. He based this testimony on his knowledge of the area's stratigraphy, aerial photographs and topographical maps showing unexplained surface depressions, and evidence reported in Mr. Gulati's report. In addition, there are two documented sinkholes in the "immediate vicinity" of the site and about a dozen more within two-to-three miles. Based upon his review of all of the pertinent data, Mr. Hurst testified that the surface depressions on the site probably are part of a "lineament"--i.e., a fracture in the limestone formation below the earth's surface along which sinkholes tend to form. While he was unable to testify that an active sinkhole existed at the site, he maintained that the information presented to him was insufficient to disprove the existence of an active sinkhole at the site. He also testified to his opinion that relic sinkholes probably existed under the retention ponds. As found in the Recommended Order in Case 05- 2606: A relic sinkhole, as contrasted to an active sinkhole, has either been sealed or has self-sealed, so that there is no connection between the sinkhole and the underlying aquifer. An active sinkhole provides a direct connection--referred to by both LRAS’ and Spanish Oaks' experts as a “good communication”--between the surface and the aquifer. Mr. Hurst testified that, even if no active sinkhole existed at the site, the likely relic sinkholes made it more likely that active sinkholes would open there and create a direct conduit to the aquifer. At the final hearing and in its proposed recommended order in Case 05-2606, LRAS argued that the Spanish Oaks retention ponds violated Rule 62-522.300, even if they were not constructed over active sinkholes but rather only over relic sinkholes. As concluded in the Recommended Order and Final Order in Case 05-2606, such an interpretation of the Rule would be "incorrect" and a "misperception." But LRAS' primary argument was that Spanish Oaks did not provide reasonable assurance that there were not active sinkholes at the site, and the "fall-back" argument was not unreasonable to make based primarily on Mr. Hurst's testimony. The Petition also asserted that LRAS had no evidence in support of its allegation that the required clay core was not installed, or that required erosion control measures were not provided. But facts supported a finding that Spanish Oaks did not notify SWFWMD, as required, which was ruled to be relevant to the provision of reasonable assurance in general, and the erosion control issue was a minor feature of the Amended Petition, and the Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, filed in Case 05-2606 did not mention it. Evidence was presented during the final hearing in Case 05-2606 that the challenge in LRAS' Petition and Amended Petition was virtually identical to a challenge to Spanish Oaks' ERP that was filed by Donna Starks on behalf of her not-for- profit corporation, Central Florida EcoTours, in early May 2005 but was time-barred and dismissed because Starks and Ecotours received mailed notice of the issuance of the ERP to Spanish Oaks on April 27, 2004. Spanish Oaks implied during the final hearing in Case No. 05-2606 that Donna Starks told LRAS about the fate of the EcoTours challenge and asked LRAS to file its Petition and Amended Petition at her behest to block the Spanish Oaks development for leverage to accomplish her ulterior motive- -namely, purchase of the property by EcoTours. But those allegations were denied by LRAS and were not proven during the hearing in Case 05-2606.
