The Issue This case presents two questions for consideration. The first question concerns the Petitioners' contention that the grant of the permit at issue must be considered contemporaneously with the matters of file in the application made by the Respondent, The Deltona Corporation, with the Respondent, State of Florida, Department of Environmental Regulation, File No. 64-24208, pending before the Department. From the point of view of the Petitioners, should this contemporaneous review process be afforded, then the current permit would not be granted due to the alleged deficiencies associated with the application, File No. 64-24208. The second question to be answered in this case concerns the dispute between the Respondents on the issue of water quality monitoring as a condition to granting the permit sought herein. The Respondent Department would have the applicant monitor in six lakes in the area of the project and the applicant would restrict its monitoring activity to three lakes in the project area. The Petitioners support the Department in its position on the monitoring question. 1/
Findings Of Fact The Respondent, The Deltona Corporation, has made application with the Respondent, State of Florida, Department of Environmental Regulation, to effect drainage system improvements to a land locked conveyance network which consists of the enlargement and regrading 990 lineal feet of existing channel cross- section and the installation of additional culverts and control structures at road crossings. The project also involves repairs and replacement of a damaged culvert. The work would be accomplished by land based equipment transported to the work site by existing overland routes. The excavated sand fill would be placed on upland property owned by The Deltona Corporation. The details of the project and data related to the geographical area may be found in the Joint Exhibit I admitted into evidence. The date of the application for permit is December 12, 1979. On January 25, 1980, the Department of Environmental Regulation sent out a notice of the pending review by the Department of the permit application. After receipt of that notice, attorney for the Petitioners, on February 12, 1980, wrote to the Department expressing the objection to the project made by property owners in the area of the project site, together with a list of those owners found in an attached Petition of owners' names and addresses. A copy of this letter and attached Petition may be found as Joint Exhibit No. VII admitted into evidence. Subsequent to the receipt of the statement of objections, the Department issued a construction permit dated April 30, 1980, subject to conditions. A copy of this permit may be found as Joint Exhibit No. VIII admitted into evidence. The Petitioners, through their counsel, then filed a formal petition dated May 6, 1980, which was the vehicle utilized in establishing the details of this dispute and was the basis for the Department Secretary forwarding the case to the Division of Administrative Hearings for consideration by a hearing officer in keeping with the provisions of Section 120.57, Florida Statutes. The hearing was conducted on October 16, 1980, and the Petitioners' position was more specifically defined in the course of that hearing and the claim as described in the issue statement of this order constitutes the substance of the Petitioners' position. 2/ Joint Exhibit No. I; petitioners' Exhibit No. 1 and Respondent Deltona's Exhibits 1, 2 and 4 constitute sketches and aerial photographs of the general project area. Joint Exhibit No. 1 identifies the work area with more particularity. Respondent's Exhibit No. 2 indicates the desired flow pattern of the water through the various lake systems and indicates whether the flow is by gravity flow or pump flow. This drawing depicts the proposed channels and structural improvements that would be involved. The Department has indicated that all the regulatory concerns which it has about the project associated with Permit No. 64-26478-4E, the permit in question, have been adequately addressed, subject to the conditions set forth in the permit document. Joint Exhibit Nos. V and VI; Respondent Deltona's Exhibit Nos. 5, 6 and 7; and the Petitioners Exhibit No. 2 are exhibits pertaining to water quality concerns, to include sample results. The testing and other information provided indicates that the project as contemplaced, would meat the regulatory parameters set forth in Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. The Department in expressing its concern that continued water quality monitoring be conducted has indicated that it feels that future periodic monitoring should be done in Jenkins Pond, Lake Big, Lake Diana, McGarity Lake, Sidney Lake and Lake Mitnik. The Respondent Deltona would only conduct this monitoring in the first three lakes named. By looking at the Respondent Deltona's Exhibit No. 2, it could be seen that all of the aforementioned lakes would be in the same basic flow pattern. Of the system of lakes, the area around McGarity Lake is the most highly developed and and has the greatest potential for causing unacceptable pollution. That pollution could be carried through the other lakes within the system as described in view of the potential of the system, if the project is built, to convey a greater volume of water at a higher rate of flow. A more expansive water quality monitoring system within six lakes as opposed to three lakes would increase the opportunity to discover potential hazards from pollutant at an earlier data. This is particularly so by using lakes such as McGarity Lake where there is a higher level of developmental build-out.
Findings Of Fact In approximately 1987, the Petitioner purchased land in Pinellas County, of which approximately 85 percent lies within jurisdictional wetlands. (The jurisdictional wetlands approximate the surface water mean high water line.) Some of the wetlands will have to be filled in order to construct a residential dwelling on the property. The nearest public sewer connection is over a mile away from the Petitioner's property. The only reasonable alternative for the treatment of residential sewerage is an onsite sewage treatment and disposal system. The only reasonable alternative for construction of an onsite sewage treatment and disposal system on the property would require a drainfield to be located well within 75 feet of the jurisdictional wetlands, which are surface waters of the State. In fact, the proposed drainfield would have to be as close as six to twelve feet from the jurisdictional wetlands in most places. In addition, there is a drainage ditch along the road on the western boundary of the Petitioner's property. The drainage ditch contains water for extended periods of time in the rainy summer months. The drainfield for the Petitioner's proposed onsite sewage treatment and disposal system would be approximately 21 feet from the drainage ditch. In other words, a 75 foot setback from the drainage ditch would overlap the 75 foot setback from the jurisdictional wetlands. Although the Petitioner's proposed onsite sewage treatment and disposal system is designed to function without failing during such conditions, parts of the drainfield can be expected to be inundated during the rainy season. In effect, as a result of rainfall and runoff during rainy weather, the water from the wetlands and the drainage ditch would be expected to overflow the jurisdictional line and the ditch banks and inundate parts of the drainfield. There would be a direct connection between the waters inundating the drainfield and the surface waters of the wetland and of the drainage ditch. The Petitioner proposes to have, and several neighbors have, potable water wells to supply drinking water. There are sinkholes all over the area of the Petitioner's property. It is not known whether there is a sinkhole on the Petitioner's property, but it is well known that sinkholes are common in cypress head swamps like the wetlands on the Petitioner's property. If there is a sinkhole, or if one develops, it could act as a direct conduit from the surface water to the aquifer from which the private drinking water wells in the area draw water. Contamination from the Petitioner's drainfield then would be able to contaminate the drinking water. Potential fecal coliform contamination of the surface waters adjacent to the Petitioner's proposed drainfield (both the wetlands and the drainage ditch) also could pose a public health threat. The County recently has disposed of digested sludge in the vicinity of the Petitioner's site (i.e., within approximately a mile away). (It is not clear from the evidence whether this still is taking place.) However, under applicable Department of Environmental Protection rules, the sludge was being applied to pasture at least 300 feet from cypress heads, and the County also was required to meet other environmental controls and regulations for that kind of disposal. The Petitioner's evidence did not prove that discharge from his proposed onsite sewage treatment and disposal system will not adversely affect the health of the Petitioner or the public or that it will not significantly degrade the groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order denying the Petitioner's application for a variance. RECOMMENDED this 14th day of March, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 14th day of March, 1994. COPIES FURNISHED: R. Patrick Mirk, Esquire Post Office Box 10598 Tampa, Florida 33679-0598 David Jon Fischer, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 11351 Ulmerton Road Largo, Florida 34648 Robert L. Powell Agency Clerk Department of Health and Rehabiltiative Services 1323 Winewood Blvd. Tallahssee, Florida 32399-0700 Kim Tucker, Esquire General Counsel Department of Health and Rehabiltiative Services 1323 Winewood Blvd. Tallahssee, Florida 32399-0700
Findings Of Fact Petitioner proposes to erect a hyacinth fence at the entrance to Canal number 4 in Lake Istokpoga. The fence will consist of 4' x 4' posts six feet apart extending approximately 100 feet from each marsh bank of the canal toward Lake Istokpoga with an opening at the entrance of 12 to 14 feet to allow boat access. The fence will be attached to these 4' x 4' posts and extend about 2 feet below the surface of the water to prevent hyacinths from entering the canal and blocking navigation. Three other canals leading into Lake Istokpoga have been equipped with hyacinth fences and to date no problems have occurred. The fence does not extend to the bottom of the lake, is of a type approved by DER and will not materially effect the movement of water into and out of the canal. There is less water turnover in the canals than in the lake. This results in the canals having less oxygen than the lake and therefore are in a more stressed condition. As a result, from an ecological point of view, it is preferred to keep the hyacinths in the lake as opposed to the canals. Hyacinths which die and sink to the bottom take from the water oxygen that is needed to sustain aquatic life. From a navigational standpoint the 12 to 14 feet opening in the proposed fence is adequate for the boats that use the lake and canal. Erection of the fence will have no adverse effect on the ecology or biological resources of the area, and will result in keeping out many hyacinths that otherwise would enter the canal.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Harold F. Brown is a custom agricultural applicator, and has been in the business for approximately 27 years. He has applied the pesticide aldicarb, known under the brand name of Temik, which is manufactured and sold by Union Carbide, Inc. This pesticide is used in Florida to kill nematodes that attack the roots of plants and trees in the soil. Aldicarb (Temik) is an oxime carbamate which exhibits the neuro- transmitter enzyme cholinesterase, thereby inhibiting the transmission of neurological messages across synaptic junctions. Its effect on humans is to reduce the brain's control of body organs, resulting in neurological disorder which can ultimately cause death. Aldicarb is one of the most toxic substances made for public use. The United States Environmental Protection Agency (EPA) recommends as a guideline a tolerance level of aldicarb residue of 10 parts per billion (ppb). In connection with its pesticide monitoring program the DACS accepts and relies upon residue tolerance levels established by the EPA. HRS also follows the guidelines of the EPA as to residue tolerance levels. Aldicarb was registered for use in Florida in 1975, and has been an effective and desirable product for the growing of citrus and potatoes. It was originally anticipated that the product, when used in accordance with the label instructions, would degrade rapidly under Florida soil and temperature conditions, would be found only in the superficial layers of the soil and would not leach into ground water supplies. The label instructions for the use of Temik on citrus directs an application of 67 pounds of 15G formulation per acre once a year in the springtime. The DER has the duty and authority to protect the waters of this State, including ground water, from pollution. It has enacted rules which prohibit discharges to ground water of substances in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to human beings or which pose a serious danger to the public health, safety or welfare. DER also regulates public drinking water supplies, while private drinking water supplies are regulated by HRS. Existing treatment facilities are not now required and are not equipped to remove aldicarb residues from drinking water. According to data from the United States Geological Survey, 87 percent of all public drinking water supplies in Florida comes from ground water. Ground water accounts for 94 percent of the rural water use. There are two primary sources of ground water for drinking water in Florida--the surficial aquifer, also called the water table or shallow aquifer, and the Floridan aquifer. Approximately 37 percent of the State's population obtains its water solely or primarily from the shallow or surficial aquifer. Ground water contamination occurs when rain falls on a source of pollution, such as chemicals. The rainwater dissolves the chemical and creates leachate which percolate into the water table. This leachate moves both vertically and in the direction of the ground water. Ground water generally moves in a downgradient direction, at lateral speeds varying from several inches to several feet per month. The presence of withdrawal points, such as water supply wells, creates a vacuum and accelerates the movement of leachate. Temik is highly soluble in water and would be expected to move along with the ground water. Chemicals in ground water remain much longer than in surface water because there is a smaller degree of dilution and no exposure to sunlight. On or about August 6, 1982, the Commissioner of Agriculture created a "Temik Task Force" for the purpose of testing food products, ground water and drinking water for Temik residues. This Task Force was placed under the direction of the State Chemist and included members representing the DACS, DER, HRS and the University of Florida's Institute of Food and Agricultural Sciences. The Temik Task Force met with the Pesticide Technical Council on various occasions and reported its findings to the Commissioner of Agriculture on a regular basis. The DACS conducted testing on 256 orange juice and grapefruit juice samples taken from retail stores. No traces of aldicarb residues were detected in these samples from the marketplace. Traces of aldicarb residue were detected in some noncommercial orange juice from fruit sampled at the Alcoma Grove near Lake Wales. This detection did not exceed the federal guideline of 10 ppb. Twenty potato samples were tested, and one of these samples showed aldicarb residues. DER instituted a testing program in various orange groves where Temik had been used to determine whether aldicarb was entering into the ground water. Trained DER personnel utilized monitoring wells and techniques designed to avoid contamination of the ground water samples from surface waters, soils or other causes. While many of the samples revealed no detectable traces of aldicarb or traces of less than 10 ppb, samples taken between August 18, 1982 and January 19, 1983 did reveal residues much greater than 10 ppb. These positive findings existed in shallow wells located in citrus groves in Martin County (Indiantown) and Polk County (Alcoma Groves near Lake Wales). Aldicarb residues in the amount of 129 ppb were found in the Indiantown well sample on August 18, 1982. This same well located at a site where the water table is about 4 to 5 feet below soil surface was retested on September 16, 1982, and found to contain aldicarb residues of 35 ppb. On September 29, 1982, aldicarb residues amounting to 81 ppb were discovered from samples from a surface pond in Volusia County. On or about December 8, 1982, aldicarb residues in amounts of 41, 93, 49 and 47 ppb were detected from four different monitoring wells located at the Alcoma Grove ground water testing site near Lake Wales. Testing conducted on or about January 19, 1983, at the Alcoma Grove site revealed aldicarb residue levels of 125, 100 and 65 from samples taken from three monitoring wells. All positive findings came from samples taken below the unsaturated zone or water table in the surficial or shallow aquifer. Although extensive testing has not been completed by DER, residue levels in excess of 10 ppb have not been detected in areas outside an actual area treated with Temik. No residues of Temik have been found in wells located outside a citrus grove. Based upon reports from the Temik Task Force indicating that the pesticide residues were being found in the ground water, the DACS promulgated Emergency Rule 5E-ER-83-1 on January 19, 1983. This rule (which is not the subject of challenge in this proceeding), placed all uses and formulations of aldicarb on the "restricted use pesticide" list and implemented a reporting procedure requiring advance notice of aldicarb use (with the exception of its use in potted plants) and other information regarding its use. HRS tested for traces of Temik residue from approximately 171 drinking water wells. On January 25, 1983, a sample from the Birdsong well in Winter Garden, Orange County revealed aldicarb residue at a level of 5 ppb. This well was located in the middle of a citrus grove and contained a broken casing. Based upon the above positive finding of Temik residue in the Birdsong drinking water well, the DACS promulgated Emergency Rule 5E-ER-83-2 on January 28, 1983. This rule (also not the subject of the instant challenge) temporarily suspended the use of the pesticide Temik statewide, with the exception of authorized experimental use and nursery use in containerized plants. Subsequent to January 28, 1983, 224 samples were taken from some 154 residential drinking water wells in the Hastings area. These wells were representative of approximately 96 percent of the total potato growing acreage in the three counties of Putnam, Flagler and St. Johns. No aldicarb residue was detected from these samples, and the DACS was so informed on February 3, 1983. Based upon the Hastings area sampling and results, coupled with the lower rate of application of Temik for potatoes (as opposed to citrus) and the localized area of intended use, the challenged Emergency Rule 5E-ER-83-3 was promulgated on February 4, 1983. This Rule replaced and superseded the two prior emergency rules concerning aldicarb. It basically provided for the classification of aldicarb as a restricted use pesticide, and temporarily suspended its use statewide with exemptions for nursery use in containerized plants, authorized experimental use and application to potato fields only in St. Johns, Putnam and Flagler Counties, with reports required for potato applications. Testing of food products, ground water and drinking water has continued since the promulgation of Emergency Rule 5E-ER-83-3 and is expected to continue on the part of DACS, DER, HRS, the IFAS, and the manufacturer, Union Carbide. While the DACS and HRS have not discovered any samples from food products or drinking water wells exceeding the EPA guideline of 10 ppb, further aldicarb residues have been discovered. One grapefruit sample taken from the Orange County Packing-house on February 8, 1983, was found to contain 10 ppb. Another private drinking water well, the Sharpe well in Orange County, revealed an aldicarb residue level of 6 ppb on February 8, 1983. This well, located within 10 feet of the Temik-treated area, was also defective in that it had been struck by a tractor and contained a broken casing. Samples from another defective drinking water well in Volusia County revealed an aldicarb residue level of 6 ppb on February 16, 1983. There are no existing statistics or other evidence concerning the number of defective private drinking water wells in Florida. Three non-drinking wells at the same site in Volusia County revealed aldicarb residue levels of 52, 15 and 130 ppb. Ground water samples taken on or about February 23, 1983, from four sandpoint wells in the Newberger Grove in Lutz, Hillsborough County, revealed aldicarb residues of 26, 30,126 and 315 ppb. These samples were taken from depths below the ground surface ranging from 6.9 to 13.2 feet. The EPA and Union Carbide had discovered similarly high levels of aldicarb residue at this Lutz site in 1979 and 1980. There was some evidence that Temik had not been applied to the Lutz grove site since 1981. There was also some indication, or at least inference, that in those areas where high levels of aldicarb residue were discovered in ground water, the application of Temik to the citrus grove had not been performed in accordance with the manufacturer's label directions. This inference was neither proven nor disproven at the hearing.
Findings Of Fact Respondent is an individual who owns or operates a water system that provides piped water for human consumption to the Hardy House Diner in Washington county, Florida. The water system serves at least 35 persons daily at least 60 days out of the year. Respondent has owned or operated the water system since at least October 28, 1976. Respondent does not continually apply effective disinfectant measure to the water distributed to the customer of the Hardy House Diner, nor is Respondent's water system equipped with any disinfection equipment. Respondent's water system has a daily flow greater than 2,500 gallons per day, but less than 100,000 gallons per day. The operation, maintenance and supervision of the water system is not performed by a person who has passed an examination that entitles such a person to be a certified operator. Neither the Department nor the Washington County, Florida Health Department has received from Respondent reports which contained information about the operation and maintenance of the Respondent's water system. The water system's lack of disinfectant equipment and the absence of a certified operator for the system and Respondent's failure to file operation reports have existed continuously since "October, 1976. Representatives of the Department conducted a public water systems inspection of Respondent's water system on October 26, 1976. At that time, the system was found to be unsatisfactory in several categories, including general plant condition, existence of safety hazards, lack of chlorination, failure to submit regular reports, failure to submit monthly bacteriological samples, failure to perform chemical analysis of drinking water and failure to install a raw water tap between the pump and point of chlorination. A second inspection was performed on April 7, 1977, in which it was determined that Respondent still had not installed a chlorinations system, had failed to submit monthly operating reports had failed to employ a certified operator, had failed to submit monthly bacteriological samples, and had failed to perform annual chemical analysis of water disposed from the system. On December 7, 1977, a representative of the Department whose job responsibilities included inspecting public water systems was refused permission to enter and inspect the water system serving the Hardy house diner and its customer. The Department representative was refused entry after he had identified himself and made his purpose known to Respondent. The Department has incurred expenses of $117.58, including personnel time and travel expense, in the course of investigating Respondent's alleged violations.
Recommendation RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, finding the Respondent to be in violation of the above-referenced statutes and regulations, and requiring Respondent to pay the state its reasonable costs and expenses, in the amount of $117.58 incurred in investigating and prosecuting this administrative proceeding. RECOMMENDED this 26th day of February, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 2230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1979. COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Eugene Hardy 1005 Highway 90 West Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 78-1209 DER Case No. WC-10-78 EUGENE HARDY, Respondent. /
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
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.
Findings Of Fact On May 4, 1979, the Department received from Hudson an Application for Variance from Rules 1704.244(1)(f), 1704.244(1)(h)(1), 1704.244(1)(i)(1) and 1704.4244(4), Florida Administrative Code. The request was for a period of twenty four months and was prompted by Hudsons alleged inability to meet the standards set forth in the rules at a secondary waste water treatment facility which is operated in conjunction with a pulp and paper plant in Palatka, Florida. The wastewater is discharged from the plant into Rice Creek and from the creek into the St. Johns River. Hudson stated in its request for a variance that no technology exists, now or in the foreseeable future, which would enable Hudson to meet the rule standards. Hudson further stated that it is presently utilizing the best available technology economically feasible at its Palatka plant. After reviewing the Application for Variance, the Department requested additional information concerning Hudson's application which involved: Hudson's inability to meet applicable water quality standards within the 800 meter mixing zone set forth in Rule 1704.244(1)(f), Florida Administrative Code. Hudson's inability to meet water quality standards within 10 percent of the total length of Rice Creek as required by Rule 1704.244(1)(h)(1), Florida Administrative Code. Hudson's inability to meet a dissolved oxygen level of not less than 4 mg/1 as required by Rule 17-4.244(1)(i)(1), Florida Administrative Code. and Hudson's inability to meet a minimum dissolved oxygen level of 1.5 mg/1 at any time or place. Due to its alleged inability to meet the applicable standards, Hudson proposed that the zone of mixing be extended into the St. Johns River and that average and minimum dissolved oxygen levels be inapplicable in the extended mixing zone. Hudson clarified its request on July 11, 1979, to include in the mixing zone that portion of Rice Creek between Hudson's point of discharge and Rice Creek's confluence with the St. Johns River and 2000 feet beyond the confluence into the river. Additionally, Hudson clarified its request for average and minimum dissolved oxygen levels 0.0 mg/1, respectively, within the modified mixing zone. On August 24, 1979, the Department issued a Notice of Intent to approve the variance subject to the following conditions: That the variance be in effect for a period of not ore than 24 months. That Hudson study alternative discharge and monitoring systems with details and scope of the studies to be approved prior to the effective date of the variance. That Hudson utilize its treatment facilities to the maximum extent to minimize BOD5 loading into Rice Creek and maximize dissolved oxygen levels. Within two months of the effective date of the variance, Hudson is to provide the Department a report outlining how the company will meet this requirement. That Hudson continue to apply new technology as it becomes available and conduct ongoing studies in this area and submit the same to the Department upon completion and That Hudson continue to study, stress and utilize water reuse conservation techniques to reduce the amount of water consumed per ton of product produced. Subsequently, the Department received from Hudson a technical program for continued water quality studies at Rice Creek. Following further communications and discussions, Hudson and the Department agreed on a six month study to replace the two month requirement concerning dissolved oxygen levels in the effluent. Eventually, the Respondents agreed on a study to encompass conditions 5(b) and (c) set forth, supra. Following receipt of a letter to the Department from the Florida Game and Fresh Water Fish Commission, Hudson agreed to incorporate into its study the issues raised by that agency. At the formal hearing the Petitioner and Intervenor, an adjoining property owner, pressed their objections to the Department's intent to issue a variance to Hudson. Hudson demonstrated that its wastewater treatment system at its Palatka facility utilizes the most effective and technologically advanced treatment system available. Hudson has made a major commitment towards upgrading its treatment facilities as new and practicable treatment technologies become available. Hudson's Palatka plant has the highest quality of effluent of any paper mill operating in the state. Hudson is unable to meet the present standards for discharge due primarily to the classification of Rice Creek as a Class III water body. Although classified as a Class III water, Rice Creek, even in the absence of the Hudson discharge, would be unable to meet the standards of the Florida Administrative Code for such waters at all places and times. There is no practicable technology currently available which would enable Hudson to meet Class III water standards. Hudson's annual average for discharge of Biochemical Oxygen Demand ("BOD") and Total Suspended Solids ("TSS") exceeded the Best Available Technology ("BAT") standard proposed by the Federal Environmental Protection Agency by 47% and 22% respectively. Hudson's permit levels only require the standards to be exceeded by 20% and 19%, respectively. Despite Hudson's good faith efforts to meet water quality standards, it is not presently possible to meet Class III criteria for discharge into the St. Johns River. Accordingly, a variance is required from the mixing zone and dissolved oxygen provisions of Chapter 17-4 Florida Administrative Code, if Hudson is to continue in operation. In the intended mixing zone proposed by Hudson, dissolved oxygen levels of 0.0 mg/1 could be expected at certain times of the year and under certain conditions. The variance does not authorize Hudson to discharge at levels in excess of its present permits. If the Palatka plant were to close, Putnam County and a surrounding area would experience severe economic harm due to the tremendous impact the plant has on the local economy. The water quality of the St. Johns River is not significantly affected by the discharge into Rice Creek.
Findings Of Fact Petitioner, John H. Phipps Broadcasting Stations, Inc., owns approximately 10,600 acres of land bordering on Lake Jackson. The corporation owns roughly seventy percent of the waterfront property around Lake Jackson. The corporation's land is used for agriculture. Less than ten percent of the land is used in a minor grain operation involving the interspersion of cover via several small grain fields. Most of these grain fields are in self-contained basins creating no erosion or runoff problems. These fields are conducive to the propagation of wildlife, particularly quail and deer. The grain produced by these fields is used, at least in part, in the corporation's cattle operation. Approximately twenty-five percent of the corporation's land is used in a cattle breeding operation involving three to five hundred head of cattle. No feed lot operation is involved. The cattle are in pastures, the majority of which are bounded by the waters of Lake Jackson. The corporation fences to and into the water because of the fluctuating level of Lake Jackson and the necessity to contain their cattle. This practice has been ongoing for more than twenty-nine years. The corporation presently has no permits of an environmental nature in connection with the cattle operation. The testimony by Petitioner's witnesses is that the pasture cattle operation is very conducive to good water quality because it captures runoff and allows it to percolate. The remainder of the corporation's land is used in a timber operation which includes controlled burning to help contain erosion. Witnesses for Petitioner corporation testified that the water quality of Lake Jackson bordering the corporation's land is excellent. A high priority of the agricultural operation of the corporation is the maintenance of good water quality in Lake Jackson. Activities are not permitted on the corporation's land that degrade the water quality of the lake. Attempts are made to keep runoff from the lake. The evidence indicates that there are no discharges of water from the corporation's lands into Lake Jackson other than natural runoff. The testimony presented by Petitioner corporation at the final hearing was that the corporation intends to continue using the property as it is presently used and has no tentative plans for a different use of the property. Petitioner, Colin S. Phipps, owns approximately 1,000 acres bordering in part on Lake Jackson. He is also president of John H. Phipps Broadcasting Stations, Inc. Colin S. Phipps rents his acreage and shooting rights to an individual who farms the acreage. He testified that nothing was done on the property that presently requires permits from the Department of Environmental Regulation. John H. Phipps and John E. Phipps personally own parcels of land bordering on Lake Jackson. The three individual petitioners in this cause are officers of the corporate Petitioner. No evidence was presented to show activities on behalf of the petitioners on their property other than that set forth above. Further, it was the position of the petitioners that they did not foresee a change in the activities presently occurring on their property. It was their position that they had no tentative future plans for the property. They did indicate that they did not know what the future might bring. An experienced and qualified appraiser appeared on behalf of petitioners and testified that he had read the rules being challenged in this cause, was familiar with the subject property, and that in his opinion the vagueness of the proposed rules would dramatically and adversely affect the value of Petitioners' land. There are several problems with this opinion testimony. The witness did not testify that he had appraised the property. Rather, he testified that he was very familiar with the property. Thus, his testimony on the value of the land is speculation, albeit knowledgeable speculation, rather than the considered expert opinion of an appraiser. Further, the witness' opinion was based on his reading as a layman of the proposed rules and his speculation of their effect on the real estate market in which the subject lands might be offered for sale. The Hearing Officer found that the witness was a qualified appraiser with experience in appraising the economic impact of environmental regulations on waterfront property. Nevertheless, his interpretation of the proposed rules carries with it no aura of correctness for he is not, and, perhaps as all of us, cannot be, an expert in the interpretation of rules. The rules must speak for themselves and the witness can only speculate on the effect of different interpretations which might be given the rules. Therefore, the Hearing Officer concludes that the opinion of the witness is so speculative that his testimony is incompetent to support findings of fact as to the effect of the proposed regulations on the market value of Petitioners' real property.
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."3 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting the water quality of the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the St. Lucie River area near Laniger's WWTP is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2, at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter [sic] 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. The force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, the Department received a response from Laniger's attorney, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal Warning Letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger requested that the Department to act on the permit application, and the Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
