The Issue Whether the August 30, 1988 application of Petitioner James R. Regan for a permit to operate a wastewater (sewage) treatment facility should be granted in that Petitioner has provided reasonable assurances that the operation of the facility will not discharge, emit, or cause pollution in contravention of Department of Environmental Regulation standards or rules.
Findings Of Fact The sewage treatment plant that is the focus of this proceeding is "Weakley Bayou, Inc.," a corporation. The real property upon which it is located is owned by the wife of James R. Regan. Despite corporate status, Weakley Bayou, Inc. has been operated at the option and control of James R. Regan since its inception in the early 1970's. The permit application here at issue was made in Mr. Regan's name, and he has been treated as if he were the corporation throughout all stages of the permit process. Mr. Regan brought the Petition for Formal Hearing in his own name. He was also accepted as the qualified representative for himself and the corporation. "Weakley Bayou, Inc." is an aerobic gravity flow wastewater treatment plant located in Escambia County. In 1988 James R. Regan applied for a renewal of the operating permit for the facility. The Department of Environmental Regulation (DER) issued an Intent to Deny on December 16, 1988, based on agency perceptions derived from observations, monitoring of Petitioner- generated reports, and grab samples, that the facility did not meet the requirements set down in Rule 17-6 F.A.C. Specifically, the Intent to Deny focused on the following problems: A reclaimed water sample taken on December 6, 1988 revealed the facility was exceeding BOD5 (Biological Oxygen Demand) and TSS (Total Suspended Solids) limits in violation of specific condition number 17 of Permit Number D017-71682. The BOD5 was 232.8 mg/l and TSS was 1,430 mg/l. The same sampling showed the facility was exceeding 200/100 ml for fecal coliform in violation of specific condition number 17 of permit number D017-71682 and Rule 17- 6.180(1)(b)4.d., Florida Administrative Code. The fecal coliform was 79,000/100 ml. Ground water monitoring samples show the levels of nitrates in excess of 10 mg/l in well #l on two out of last four quarterly samples, which is in violation of Rule 17- 6.040(4)(q) paragraph 4.2, Florida Administrative Code. During the inspection on December 6, 1988, the sludge blanket in the clarifier was overflowing the weirs, solids had accumulated in the chlorine contact chamber and percolation ponds in violation of Rule 17- 6.110(3) and 17-6.180(2) (e) , Florida Administrative Code. Auxiliary electrical power is not provided as required by Rule 17-6.040(4) (c) and 17-6.110(3), Florida Administrative Code. The applicant was notified March 14, 1988, that emergency power would be required. During the period (1984-1988) that Petitioner's sewage treatment plant has been permitted by DER, it has been periodically inspected and the Petitioner's self-generated reports have been monitored. From time to time after inspections, Petitioner has been notified of pollution and contaminant hazards or violations pursuant to agency standards, which hazards or violations required corrections in order to retain his permit. Among these hazards and violations have been noted large sewage spills, overflows, poor equipment condition, and substandard plant operation. In most instances, Petitioner cooperated with DER and at least attempted to adjust the plant's operation to conform to the notifications. However, as of December 15, 1988, DER notified Petitioner of the following problems with the plant: sludge blanket in the clarifier overflowing the weir, solids accumulation in the chlorine contact chamber, solids accumulation in both percolation ponds, no auxiliary power on the site, and high levels of nitrates (6.9 ppm) in Monitoring well -1. DER's test of an effluent grab sample tested BOD at 232.8 mg/L and Total Suspended Solids (TSS) at 1430 mg/L. That is, samples taken by DER during an inspection indicated excessive levels of TSS, BOD, and fecal coliform, in violation of Chapter 403 F.S. and Chapter 17-6 F.A.C. Mr. Regan admitted that for approximately four years, broken and unrepaired pipes and fittings at his plant had caused sewage spills or overflows of approximately eight thousand gallons of sewage sludge. He contended that the surface enrichment around Monitoring Well #1 was caused by a separation of a two-inch PVC skimmer line which was corrected in March 1988. Although Mr. Regan established that the leak in the pipe had been repaired, the evidence does not permit a finding that this enrichment was solely from that source, that it will dissipate over a reasonable time, or that it has not polluted the ground water. 1/ Thus, there is no reasonable assurance that fixing the leak, by itself, protects the environment. Over a period of time, Petitioner's own groundwater monitoring reports showed excessive nitrate levels and these have worsened since late 1988, according to witness Ray Bradburn. Petitioner contended that a grab sample is not as accurate as a composite sampling. Although DER witnesses concur in this contention of Petitioner with regard to grab samples generally, and although one DER witness suggested that part of the December 1988 grab sample reading by itself would not cause him to deny the permit, no credible evidence disputes the accuracy of the December 6, 1988 grab sample as a grab sample.2/ Petitioner admitted that it was and continues to be his conscious management decision to keep the plant's auxiliary gasoline powered engine locked away from the plant site so as to discourage theft and vandalism, and so as to discourage childish curiosity which might expose Petitioner to liability. He was reluctant to secure the engine on the premises as a hedge against emergency shutdowns of the plant. Mr. Regan, upon advice of outside engineers, has attempted to correct many of the cited errors and omissions. However, notwithstanding the DER's express disapproval of such a method, Mr. Regan has instructed his plant operators to curtail the input of air from the plant's blower to the sewage at night so as to create a "belching" effect designed to clear out certain wastes and thereby attempt denitrification in the clarifier. DER witnesses did not explain in any detail why Regan's belching procedure was unacceptable except that addition of an expensive denitrification unit was preferable and constituted a "reasonable assurance," whereas Mr. Regan's method had not been demonstrated to be successful in the past. Mr. Regan, who bears the burden of proof in these proceedings, did not demonstrate that his "belching" system was a reasonable assurance of denitrification or offer expert witnesses to support such a theory. This sewage treatment plant is subject to a Notice of Violation which became final on September 21, 1989. 3/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the pending permit application. DONE and ENTERED this 31st day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1990.
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue The issue presented for decision herein is whether or not the Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Robert Peterson, to construct a 0.007 MGD wastewater treatment facility with effluent disposal to Dual Class V injection wells in Key Largo, Monroe County, Florida.
Findings Of Fact On January 17, 1986, Robert Peterson, doing business as Peterson's Condominiums, submitted an application to the Florida Department of Environmental Regulation (DER) to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells into G-III groundwater. The proposed site is located at Mile Marker 95.6, U.S. Highway 1, Key Largo, Florida. The sewage treatment plant is to serve a ten unit condominium with provisions for four future units. The designed population to be served is 62. (Permit Application) The Plant is designed to treat the sewage so that after treatment and disinfection, the effluent will, on average contain no more than 20 parts per million biological oxygen demand (BOD-5 day) and 20 parts per million of total suspended solids (TSS). There will be 90 percent removal of these pollutants after treatment. The effluent will be disinfected in a chlorine contact chamber, with chlorine tablets used as the disinfectant. Sludge will be removed by a licensed scavenger truck to Monroe County approved disposal sites. Noise from the plant will be controlled by a blower filter, silencers, and a weather proof hood. (Permit Application). No control is contemplated for odor or aerosol drift other than proper plant operation. No lighting will be provided at the plant. Emergency power `from a rental portable generator will be used if there is an extended power failure. Along with the sewage treatment application, Respondent Peterson also submitted two permit applications for injection of the treated effluent into 2 Class V injection wells. The total volume of treated effluent that would enter into both wells combined is 6500 gallons per day. The 6 inch diameter wells would be 65 feet deep with casing and grout down to a depth of 30 feet. Upon receipt of the permit applications, DER reviewed the application and requested an additional application including groundwater samples measuring total dissolved solids. Peterson submitted two samples, both indicating total dissolved solids significantly greater than 10,000 milligrams per liter. (DER's Exhibits 2, 3 and 4). The samples (TDS) were taken approximately 1 and 6 miles from the proposed site. Based on DER's staff review of hundreds of groundwater quality analyses from the Keys, DER's staff determined that the samples submitted were consistent with other groundwater TDS levels throughout the Keys. (Testimony of Barrone and Me1e). Use of the samples by DER was reasonable and proper. Groundwater in which the TDS is greater than 10,000 milligrams per liter (parts per millions) is classified as G-III groundwater. Such water is considered non-potable. (Testimony of Barrone and Mele; Florida Administrative Code, Rule 17-3.403(1)). After review of the application, DER issued an "intent to issue" Peterson the permits requested on March 5, 1986. (DER's Exhibit 7). The "intent to issue" as drafted by DER established certain conditions to monitor water quality and to test treated effluent before it is discharged to Class V wells. As an example, flow, pH, and chlorine residuals are to be sampled daily; BOD and total suspended solids are to be sampled monthly and fecal coliform is to be sampled once per quarter. Test results are to be submitted to DER on a monthly basis and the analysis program is conditioned to demonstrate substantial compliance with water quality standards as set forth in pertinent sections of the Florida Administrative Code. Provided the monthly reports reveal violation of DER's standards, the permittee will be required to rectify the problems. (DER's Exhibit 7, testimony of Barrone and Mele). Additionally, DER has conditioned its intent to issue on a trial or experimental basis and this project will again be subjected to review in one year. (DER's Exhibit 7, condition 12). Should the permittee fails to bring the facility into full compliance within the one year period, an operational permit will not be issued. DER imposed this condition on the subject wastewater treatment plant, based on the fact that it is a new model and DER does not have extensive experience with the monitoring of this type plant. (Testimony of Barrone and Mele). Evidence introduced reveals that the plant manufacturer, Smith and Loveless, is the largest manufacturer of factory built water and wastewater pump stations and treatment plants. The manufacturer pioneered prefabricated treatment plants with over 30 years experience. Evidence reveals that there are at least three plants in operation in Florida without any operational problems. Upon "issuing the intent to issue", DER directed the permit applicant (Peterson) to publish notice in the Key West Citizen (Peterson's Exhibit 1). Notice of this proposed agency action was published in the Key West Citizen on March 17, 1986, giving any substantially affected party 14 days from that date to file a petition for administrative proceedings with DER's Office of General Counsel. (Petitioner's Exhibit 2). On March 26, 1986, DER received a letter from Petitioner McInerny, Popp and other local citizens (C.C. Waggle) protesting the proposed project. The Objectors indicated that they had heard that the proposed agency action was advertised in the Key West Citizen but that the Key West Citizen was not available in their area. 1/ Based on these protest letters, DER afforded Objectors, including Petitioners, a new point of entry into these proceedings. Petitioners Ohi, Popp and McInery timely petitioned for an administrative hearing challenging the proposed agency action. The challenges by Petitioners, based on DER's second point of entry, were timely filed. When the proposed facility becomes operational, it will not cause foul odors or create a nuisance due to aerosol drift based on the design features. (Testimony of Barrone, Mele and Sikorski. The extended aeration facility, as proposed, is the most reliable type of sewage treatment plant for this type operation. (Testimony of Mele). The expected pollutants produced from domestic sewage are BOD, dissolved solids and to a lesser extent heavy metals, nitrates, phosphorus and bacteria. (Testimony of Mele). After treatment, the effluent from this facility is not expected to be either toxic or carcinogenic. (Testimony of Mele). The Class V wells into which the treated effluent would be placed are approximately 500 feet from the nearest shoreline, the Atlantic Ocean. This is the closest distance to any Outstanding Florida Water. As such, the treated effluent will be diluted prior to its discharge into the Atlantic Ocean. (Permit Application, Testimony of Mele). Respondent Peterson has provided Respondent DER reasonable assurances that the proposed facility, upon operation, will not violate the Department's rules relating to air, noise and water quality standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Environmental Regulation enter a Final Order issuing Respondent, Robert Peterson, doing business as Peterson's Condominiums, a permit to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells with the conditions as set forth in the DER's "intent to issue" dated March 5, 1986. RECOMMENDED this 1st day of December 1986 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December 1986.
Findings Of Fact Upon consideration of the oral and documentary evidence in the record, as well as the pleadings and joint prehearing stipulation, the following relevant facts are found: Cast-Crete owns and operates a concrete batch plant in Hillsborough County, Florida, and manufactures concrete products such as reinforced beams, lintels, seals and drainage structures on the property. The plant is located on the west side of State Road 579, 3/4 mile north of Interstate 4, Section 28, Township 28 South, Range 20 East. The concrete products are manufactured in various forms which are laid out over a large portion of Cast-Crete's property. Lubricating oils are utilized to facilitate the removal of the product from the confining forms. During this process some of the lubricating oil is spilled onto the ground. Also, cleaning solutions containing degreasers are utilized to wash the concrete trucks eight to ten times per day. This solution ends up on the ground. Aggregate limerock (crushed limestone) is used in the concrete formulation process and is stored in large piles on the property. In order to contain the dust, water is sprayed on the aggregate piles 24 hours a day. The wash water from the continuous process of wetting the aggregate, other waste water and some stormwater is channeled through the property and into a settling pond in the northwest corner of Cast-Crete's property. This pond discharges continuously off the property by way of a concrete flume into a county maintained ditch. Water in the ditch travels in a westerly direction approximately 200 to 300 yards before it passes under Black Dairy Road, where the watercourse deepens and widens. The ditch discharges into a marshy area which drains into Six Mile Creek and other water bodies. The pond at the northwest corner of Cast-Crete's property is equipped with a metal skimming device to remove oils and greases floating on the surface of the pond. Nevertheless, it is estimated that approximately 100 gallons of oil per year are discharged by Cast-Crete. Oil and grease in the outflow water is occasionally above 5 mg/L. Oil and grease layers have been observed on water at both Black Dairy Road and Six Mile Creek, probably resulting from road run- off. Approximately 90 percent of the water discharged from the property is a result of the wetting or washdown of the aggregate piles. The excess water which comes from the aggregate piles is laden with dissolved limestone, lime and limestone particles. This limestone dust raises the pH level of the water. Because of the continued wetting of the aggregate, water flows through the settling ponds and off of Cast-Crete's property at a rate of approximately 4.8 gallons per minute, or 7,200 gallons per day or 2.5 million gallons per year. During a rain event, the flow increases markedly. Except during times of heavy rainfall, water flowing from the respondent's property provides a thin stream of water in the drainage ditch approximately six inches wide and several inches deep. The pH of the wastewater from Cast-Crete's discharge flume is between 10 and 11 units. During high volume flows, the pH remains at or above 11 units. An increase of one unit of pH in the wastewater means that the wastewater has become 10 times more basic, since pH is measured on a logarithmic scale. The natural background of unaffected streams in the area of and in the same watershed as the Cast-Crete property is less than 8.5 units. Specific conductance or conductivity is the measure of free ions in the water. Typical conductivity readings from other water bodies in Hillsborough County range between 50 and 330 micromhos per centimeter. The specific conductance of Cast-Crete's wastewater ranges from 898 to 2000 micromhos per centimeter. This is due to the presence of calcium carbonate and calcium hydroxide in the water. Blue-green algae is the dominant plant species in the ditch between the Cast-Crete discharge flume and the first 150 meters of the ditch. A biological survey of the ditch system indicates that the diversity of species east of Black Dairy Road is low. This is attributable in part to the high pH of the wastewater. The low diversity can also be attributed to the fact that the County maintains the ditch by use of a dragline on an annual basis. Background samples from a site within one mile to the northwest of the Cast-Crete property were taken. The site (a stream passing under Williams Road) is an appropriate place to take background samples because the water there is unaffected by Cast-Crete's discharge or other man-induced conditions. The pH background sample ranged from 4.6 units to 5.1 units. The specific conductance background samples ranged from 70 to 100 micromhos per centimeter. Samples taken from a site potentially impacted by Cast-Crete's discharge showed a pH level of from 6.35 to 7.37 units and specific conductance of from 592 to 670 micromhos per centimeter. Cast-Crete discharges water from its concrete plants operation without a permit from the DER.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered requiring respondent to submit a complete application for an industrial wastewater permit within thirty (30) days, and that, if it fails to do so, it cease discharging wastewater from its property until such time as an appropriately valid permit is issued by the DER. Respectfully submitted and entered this 3rd day of May, 1985, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1985. COPIES FURNISHED: David K. Thulman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building Blairstone Road Tallahassee, FL 32301 W. DeHart Ayala, Jr. 501 E. Jackson Street Suite 200 Tampa, FL 33602 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA, Petitioner, vs. CASE NO. 84-1647 CAST-CRETE CORPORATION OF FLORIDA Respondent. /
The Issue The issues to be determined in these consolidated cases are whether All Aboard Florida – Operations, LLC (“the Applicant”), and Florida East Coast Railway, LLC (“FECR”), are entitled to an Environmental Resource Permit Modification authorizing the construction of a stormwater management system and related activities to serve railway facilities, and a verification of exemption for work to be done at 23 roadway crossings (collectively referred to as “the project”).
Findings Of Fact The Parties Petitioners Martin County and St. Lucie County are political subdivisions of the State of Florida. Petitioners have substantial interests that could be affected by the District’s proposed authorizations. Intervenor Town of St. Lucie Village is a political subdivision of the State of Florida. Intervenor has substantial interests that could be affected by the District’s proposed authorizations. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company based in Miami. All Aboard Florida is part of a group of corporate entities formed for the principal purpose of developing and operating express passenger train service in Florida. Co-applicant Florida East Coast Railway, LLC, is a Florida limited liability company based in Jacksonville. FECR owns the existing railway corridor the passenger train service will use between Miami and Cocoa. South Florida Water Management District is a regional agency granted powers and assigned duties under chapter 373, part IV, Florida Statutes, including powers and duties related to the regulation of construction activities in wetlands. The proposed activities are within the boundaries of the District. Background The objective of the All Aboard Florida Project is to establish express passenger train service connecting four large urban areas: Miami, Fort Lauderdale, West Palm Beach, and Orlando. Most of the passenger service route, including the portion which will pass through Martin County and St. Lucie County, will use an existing railroad right-of-way used since the late 1800s. The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It supported passenger and freight operations on shared double mainline tracks from 1895 to 1968. The passenger service was terminated in 1968 and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The passenger service will use the FECR right-of-way from Miami to Cocoa and then turn west on a new segment to be constructed from Cocoa to Orlando. The railway corridor will be operated as a joint facility, with passenger and freight trains sharing the double mainline tracks. The Applicant is upgrading the portion of the corridor between Miami and Cocoa by, among other things, replacing existing railroad ties and tracks, reinstalling double mainline tracks, and improving grade crossings. The Applicant is also installing Positive Train Control systems which provide integrated command and control of passenger and freight train movements and allow the trains to be directed and stopped remotely or automatically in the event of operator error or disability, or an obstruction on the track. The All Aboard Florida Project is being developed in two phases, Phase I extends from Miami to West Palm Beach, and Phase II from West Palm Beach to Orlando. This proceeding involves a segment within Phase II, known as Segment D09, which runs from just north of West Palm Beach to the northern boundary of St. Lucie County. The railway corridor in Segment D09 passes through Jonathan Dickinson State Park in Martin County and the Savannas Preserve State Park, parts of which are in both Martin County and St. Lucie County. Surface waters within these state parks are Outstanding Florida Waters (“OFWs”). The railway in Segment D09 also passes over the St. Lucie River using a bridge that can be opened to allow boats to pass. The Applicant plans to run 16 round trips per day between Miami and Orlando, which is about one train an hour in each direction, starting early in the morning and continuing to mid-evening. In 2013, the District issued the Applicant an exemption under section 373.406(6), which exempts activities having only minimal or insignificant adverse impacts on water resources. The 2013 exemption covers proposed work in approximately 48 of the 65 miles which make up Segment D09, and includes replacement of existing tracks and re-establishment of a second set of mainline tracks where they were historically located. The 2013 exemption covers all but 24 of the roadway crossings within Segment D09 where work is to be done in connection with the All Aboard Florida Project. In 2015, the District issued the Applicant a general permit under rule 62-330.401, which authorizes activities that are expected to cause minimal adverse impacts to water resources, for the installation of fiber optic cable along the rail bed within Segment D09. The 2013 exemption and 2015 general permit were not challenged and became final agency action. The Proposed Agency Actions The ERP Modification covers work to be done in approximately 17 of the 65 miles which make up Segment D09. The work will consist primarily of replacing existing tracks, installing new tracks, making curve modifications in some locations to accommodate faster trains, culvert modifications, and work on some fixed bridge crossings over non-navigable waters. The 2017 Exemption at issue in this proceeding covers improvements to 23 of the 24 roadway crossings that were not covered by the 2013 exemption. Proposed improvements at Southeast Florida Street in Stuart will be permitted separately. The improvements covered by the 2017 Exemption include upgrading existing safety gates and signals; installing curbs, guardrails, and sidewalks; resurfacing some existing paved surfaces; and adding some new paving. Petitioners argue that, because the District’s staff report for the ERP Modification states that the ERP does not cover work at roadway crossings, track work at roadway crossings has not been authorized. However, the staff report was referring to the roadway improvements that are described in the 2017 Exemption. The proposed track work at the roadway crossings was described in the ERP application and was reviewed and authorized by the District in the ERP Modification. “Segmentation” Petitioners claim it was improper for the District to separately review and authorize the proposed activities covered by the 2013 exemption, the 2015 general permit, the ERP Modification, and the 2017 Exemption. Petitioners contend that, as a consequence of this “segmentation” of the project, the District approved “roads to nowhere,” by which Petitioners mean that these activities do not have independent functionality. Petitioners’ argument is based on section 1.5.2 of the Applicant’s Handbook, Volume 1,1/ which states that applications to construct phases of a project can only be considered when each phase can be constructed, operated, and maintained totally independent of future phases. However, the activities authorized by the four agency actions are not phases of a project. They are all parts of Phase II of the All Aboard Florida Project, which is the passenger railway from West Palm Beach to Orlando. Section 1.5.2 is not interpreted or applied by the District as a prohibition against separate review and approval of related activities when they qualify under the District’s rules for exemptions, general permits, and ERPs. Much of Phase II is outside the District’s geographic boundaries and, therefore, beyond its regulatory jurisdiction. The District can only review and regulate a portion of Phase II. The District is unable to review this portion as a stand-alone railway project that can function independently from other project parts. The Proposed Stormwater Management System Where the Applicant is replacing existing tracks or re- establishing a second set of tracks, it will be laying new ties, ballast, and rail on previously-compacted earth. In those areas, no stormwater management modifications were required by the District. The Applicant’s new proposed stormwater management system will be located in a five-mile area of the corridor where an existing siding will be shifted outward and used as a third track. In this area, swales with hardened weir discharge structures and skimmers will be installed to provide stormwater treatment beyond what currently exists. The weir discharge structures will serve to prevent erosion at discharge points. The skimmers will serve to capture any floating oils or refuse. Because the FECR right-of-way is not wide enough in some three-track areas to also accommodate swales, the proposed stormwater management system was oversized in other locations to provide compensating volume. The District determined that this solution was an accepted engineering practice for linear systems such as railroads. Petitioners argue that the Applicant’s proposed stormwater management system is deficient because some of the proposed swales do not meet the definition of “swale” in section 403.803(14) as having side slopes equal to or greater than three feet horizontal to one foot vertical (3:1). The statute first defines a swale to include a manmade trench which has “a top width-to-depth ratio of the cross-section equal to or greater than 6:1.” The swales used in the proposed stormwater management system meet this description. Petitioners showed that the plans for one of the 46 proposed swales included some construction outside the FECR right-of-way. In response, the Applicant submitted revised plan sheets to remove the swale at issue. The Emergency Access Way The ERP application includes proposed modifications to portions of an existing unpaved emergency access way which runs along the tracks in some areas. The access way is a private dirt road for railroad-related vehicles and is sometimes used for maintenance activities. At the final hearing, Petitioners identified an inconsistency between an application document which summarizes the extent of proposed new access way construction and the individual plan sheets that depict the construction. The Applicant resolved the inconsistency by correcting the construction summary document. Petitioners also identified an individual plan sheet showing proposed access way modifications to occur outside of the FECR right-of-way. This second issue was resolved by eliminating any proposed work outside the right-of-way. Petitioners believe the proposed work on the access way was not fully described and reviewed because Petitioners believe the access way will be made continuous. However, the access way is not continuous currently and the Applicant is not proposing to make it continuous. No District rule requires the access way segments to be connected as a condition for approval of the ERP. Water Quantity Impacts An applicant for an ERP must provide reasonable assurance that the construction, operation, and maintenance of a proposed project will not cause adverse water quantity impacts to receiving waters and adjacent lands, adverse flooding to on-site or off-site property, or adverse impacts to existing surface water storage and conveyance capabilities. The District’s design criterion to meet this requirement for water quantity management is a demonstration that the proposed stormwater system will capture the additional runoff caused during a 25-year/3-day storm event. The Applicant’s proposed stormwater system meets or exceeds this requirement. Petitioners argue that the Applicant failed to provide reasonable assurance because the ERP application materials did not include a calculation of the discharge rates and velocities for water discharging from the swales during the design storm. The ERP application contains the information required to calculate the discharge rates and velocities and the Applicant’s stormwater expert, Bruce McArthur, performed the calculations and testified at the final hearing that in the areas where there will be discharges, the discharge rates and velocities would be “minor” and would not cause adverse impacts. The District’s stormwater expert, Jesse Markle, shared this opinion. Petitioners argue that this information should have been provided to the District in the permit application, but this is a de novo proceeding where new evidence to establish reasonable assurances can be presented. Petitioners did not show that Mr. McArthur is wrong. Petitioners failed to prove that the proposed project will cause adverse water quantity impacts, flooding, or adverse impacts to surface water storage and conveyance capabilities. Water Quality Impacts To obtain an ERP, an applicant must provide reasonable assurance that the construction, operation, and maintenance of a regulated project will not adversely affect the quality of receiving waters, such that state water quality standards would be violated. The District’s design criteria for water quality required the Applicant to show that its proposed stormwater system will capture at least 0.5 inches of runoff over the developed area. To be conservative, the Applicant designed its proposed system to capture 1.0 inch of runoff in most areas. Under District rules, if a stormwater system will directly discharge to impaired waters or OFWs, an additional 50 percent of water quality treatment volume is required. The proposed stormwater system will not directly discharge to either impaired waters or OFWs. In some locations, there is the potential for stormwater discharged from the proposed stormwater system to reach OFWs by overland flow, after the stormwater has been treated for water quality purposes. The Applicant designed its proposed stormwater system to provide at least an additional 50 percent of water quality treatment volume in areas where this potential exists. To ensure that the proposed construction activities do not degrade adjacent wetlands, other surface waters, or off-site areas due to erosion and sedimentation, the Applicant prepared an Erosion and Sediment Control Plan. Temporary silt fences and turbidity barriers will be installed and maintained around the limits of the construction. The District’s design criteria for water quality do not require an analysis of individual contaminants that can be contained in stormwater, except in circumstances that do not apply to this project. Compliance with the design criteria creates a presumption that water quality standards for all potential contaminants are met. See Applicant’s Handbook, V. II, § 4.1.1. Although not required, the Applicant provided a loading analysis for the proposed swales which could potentially discharge overland to impaired waters or OFWs. The analysis compared pre- and post-development conditions and showed there would be a net reduction in pollutant loading. Petitioners believe the pollutant loading analysis was inadequate because it did not specifically test for arsenic and petroleum hydrocarbons. However, the analysis was not required and adequate treatment is presumed. Petitioners did not conduct their own analysis to show that water quality standards would be violated. Petitioners’ expert, Patrick Dayan, believes the compaction of previously undisturbed soils in the emergency access way would increase stormwater runoff. However, he did not calculate the difference between pre- and post-construction infiltration rates at any particular location. His opinion on this point was not persuasive. Petitioners failed to prove that the proposed project will generate stormwater that will adversely affect the quality of receiving waters such that state water quality standards would be violated. The preponderance of the evidence shows the project complies with District design criteria and will not cause water quality violations. Soil and Sediment Contamination Petitioners argue that the ERP Modification does not account for the disturbance of existing contaminants in soils and sediments that could be carried outside of the right-of-way and into OFWs. Petitioners’ argument is based on investigations by their geologist, Janet Peterson, who collected soil, sediment, and surface water samples at 13 sites along the FECR rail corridor in the vicinity of OFWs, or surface waters that eventually flow into OFWs. During her sampling visits, Ms. Peterson saw no visual evidence of an oil spill, fluid leak, or other release of hazardous materials. Ms. Peterson compared her soil sample results to the Residential Direct Exposure Soil Cleanup Target Levels (“SCTLs”) established in rule 62-777. The SCTLs are the levels at which toxicity becomes a human health concern and the residential SCTLs assume soil ingestion of 200 mg/day for children, and 100 mg/day for adults, 350 days a year, for 30 years. Some of the soil sampling results showed exceedances of SCTLs, but the SCTLs are not applicable here because none of the sample sites are locations where children or adults would be expected to ingest soil at such levels for such lengths of time. Petitioners did not show that the contaminants are likely to migrate to locations where such exposure would occur. Ms. Peterson compared her soil sample results to the Marine Surface Water Leachability SCTLs, but she did not develop site-specific leachability-based SCTLs using DEP’s approved methodology. Nor did she show that the proposed project will cause the soils to leach the contaminants. Ms. Peterson collected sediment samples from shorelines, but not where construction activities are proposed. She compared her sediment sample results to the Florida Department of Environmental Protection’s (“DEP”) Sediment Quality Assessment Guidelines (“SQAGs”). These guidelines are not water quality standards. Any exceedance of these guidelines requires further analysis to determine potential water quality impacts. Ms. Peterson did not conduct the analysis. Ms. Peterson acknowledged that there are numerous sources for these pollutants at or near her sample sites, such as high-traffic roads, vehicular bridges, commercial and industrial facilities, boatyards, and golf courses. She did not establish baselines or controls. Ms. Peterson collected surface water samples at seven sites, some of which were located outside the FECR right-of-way. The results showed levels of phosphorous and nitrogen above the criteria for nutrients at some locations. Phosphorous, nitrogen, and the other nutrients are prevalent in the waters of Martin County and St. Lucie County and come from many sources. Petitioners’ evidence focused on existing conditions and not expected impacts of the proposed project. The evidence was insufficient to prove the proposed project will cause or contribute to water quality violations. Functions Provided by Wetlands and Other Surface Waters An applicant for an ERP must provide reasonable assurance that a proposed project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Petitioners claim the Applicant and District should not have relied on Florida Land Use Cover and Forms Classification System (“FLUCCS”) maps to identify and characterize wetlands and other habitat areas because the maps are too general and inaccurate. However, the FLUCCS maps were not used by the Applicant or District to evaluate impacts to wetlands or other habitats. The Applicant began its evaluation of impacts to wetlands and other habitat areas by field-flagging and surveying the wetland and surface water boundaries in the project area using a GPS device with sub-meter accuracy. It then digitized the GPS delineations and overlaid them with the limits of construction to evaluate anticipated direct impacts to wetlands and other surface waters. The District then verified the delineations and assessments in the field. The Applicant and District determined that there are a total of 4.71 acres of wetlands within the FECR right-of-way, including tidal mangroves, freshwater marsh, and wet prairie. They also determined the proposed project will directly impact 0.35 acres of wetlands, consisting of 0.09 acres of freshwater marsh and 0.26 acres of mangroves. Petitioners contend that the Applicant failed to account for all of the project’s wetland impacts, based on the wetland delineations made by their wetland expert, Andrew Woodruff. Most of the impacts that Mr. Woodruff believes were not accounted for are small, between 0.01 and 0.05 acres. The largest one is acres. The Applicant’s delineations are more reliable than Mr. Woodruff’s because the methodology employed by the Applicant had greater precision. It is more likely to be accurate. Petitioners argue that the 2013 exemption and the 2015 general permit did not authorize work in wetlands and, therefore, the impacts they cause must be evaluated in this ERP Modification. However, Petitioners did not prove that there are unaccounted-for wetland impacts associated with those authorizations. Any impacts associated with best management practices for erosion control, such as the installation of silt fences, would be temporary. The District does not include such temporary minor impacts in its direct, secondary, or cumulative impacts analyses. Most of the wetlands that would be directly impacted by the ERP Modification are degraded due to past hydrologic alterations and soil disturbances from the original construction and historical use of the FECR railway corridor, and infestation by exotic plant species. Most of these wetlands are also adjacent to disturbed uplands within or near the rail corridor. The functional values of most of the wetlands that would be affected have been reduced by these disturbances. The Applicant provided reasonable assurance that the project will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Secondary Impacts Section 10.2.7 of the Applicant’s Handbook requires an applicant to provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonably expected uses of a proposed activity (a) will not cause or contribute to violations of water quality standards or adverse impacts to the functions of wetlands or other surface waters; (b) will not adversely impact the ecological value of uplands for bald eagles, and aquatic or wetland-dependent listed animal species for nesting or denning by these species; (c) will not cause impacts to significant historical or archaeological resources; and (d) additional phases for which plans have been submitted, and closely linked projects regulated under chapter 373, part IV, will not cause water quality violations or adverse impacts to the functions of wetlands or other surface waters. The proposed work will be entirely within the limits of the existing railway corridor where secondary impacts to wetlands and other surface waters caused by noise, vibration, fragmentation of habitats, and barriers to wildlife have existed for decades. The preponderance of the evidence shows that any increase in these kinds of impacts would be insignificant and would not reduce the current functions being provided. Because the affected wetlands are not preferred habitat for wetland-dependent, endangered, or threatened wildlife species, or species of special concern, and no such species were observed in the area, no adverse impacts to these species are expected to occur. Petitioners contend that adverse impacts will occur to the gopher tortoise, scrub jay, and prickly apple cactus. These are not aquatic or wetland-dependent species. However, the preponderance of the evidence shows any increase in impacts to these species would be insignificant. When the train bridges are closed, boats with masts or other components that make them too tall to pass under the train bridges must wait for the bridge to open before continuing. Petitioners contend that the current “stacking” of boats waiting for the bridges to open would worsen and would adversely impact seagrass beds and the West Indian Manatee. However, it was not shown that seagrass beds are in the areas where the boats are stacking. The available manatee mortality data does not show a link between boat stacking and boat collisions with manatees. Mr. Woodruff’s opinion about increased injuries to manatees caused by increased boat stacking was speculative and unpersuasive. The preponderance of the evidence shows that the adverse effects on both listed and non-listed wildlife species, caused by faster and more numerous trains would be insignificant. The activities associated with the 2013 exemption and the 2015 general permit for fiber optic cable were based on determinations that the activities would have minimal or insignificant adverse impacts on water resources. These determinations are not subject to challenge in this proceeding. The Applicant provided reasonable assurance that the secondary impacts of the project will not cause or contribute to violations of water quality standards, adversely impact the functions of wetlands or other surface waters, adversely impact the ecological value of uplands for use by listed animal species, or cause impacts to significant historical or archaeological resources. Elimination and Reduction of Impacts Under section 10.2.1.1 of the Applicant’s Handbook, if a proposed activity will result in adverse impacts to wetlands and other surface waters, the applicant for an ERP must implement practicable design modifications to eliminate or reduce the impacts, subject to certain exceptions that will be discussed below. Petitioners argue that this rule requires the Applicant and District to evaluate the practicability of alternative routes through the region, routes other than the existing railway corridor in Segment D09. As explained in the Conclusions of Law, that argument is rejected. The evaluation of project modifications to avoid impacts was appropriately confined to the railway corridor in Segment D09. The Applicant implemented practicable design modifications in the project area to reduce or eliminate impacts to wetlands and other surface waters. Those modifications included the shifting of track alignments, the elimination of certain third-track segments, and the elimination of some proposed access way modifications. However, the project qualified under both “opt out” criteria in section 10.2.1.2 of the Applicant’s Handbook so that design modifications to reduce or eliminate impacts were not required: (1) The ecological value of the functions provided by the area of wetland or surface water to be adversely affected is low, and the proposed mitigation will provide greater long-term ecological value; and (2) the applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and provides greater long-term ecological value. Mitigation The Applicant proposes to mitigate for impacts to wetlands by purchasing mitigation credits from four District- approved mitigation banks: the Bluefield Ranch, Bear Point, Loxahatchee, and F.P.L. Everglades Mitigation Banks. Each is a regional off-site mitigation area which implements a detailed management plan and provides regional long-term ecological value. The number of mitigation credits needed to offset loss of function from impacts to wetlands was calculated using the Modified Wetland Rapid Assessment Procedure (“MWRAP”) or Wetland Assessment Technique for Environmental Review (“WATER”), as prescribed in the state permit for each mitigation bank. Applying these methods, the Applicant is required to purchase mitigation credits. The Applicant proposed to mitigate the adverse impacts to freshwater marsh wetlands by purchasing 0.01 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, and 0.06 freshwater herbaceous credits from the Loxahatchee Mitigation Bank. The adverse impacts to tidal mangrove wetlands would be mitigated by purchasing 0.12 saltwater credits from the Bear Point Mitigation Bank, and 0.02 saltwater credits from the F.P.L. Everglades Mitigation Bank. The Applicant committed to purchase an additional 0.29 freshwater herbaceous credits from the Bluefield Ranch Mitigation Bank, for a total of 0.50 mitigation credits. The proposed mitigation implements a plan that will provide greater long-term ecological value than is provided by the wetlands that will be impacted. The Applicant proved by a preponderance of the evidence that the project complies with the District’s mitigation requirements. Cumulative Impacts To obtain an ERP, an applicant must provide reasonable assurance that a regulated activity will not result in unacceptable cumulative impacts to water resources. This assurance can be provided by proposing to fully mitigate the impacts within the same basin. However, when an applicant proposes mitigation in another drainage basin, the applicant must demonstrate that the regulated activity will not cause unacceptable cumulative impacts. The proposed project will adversely impact 0.02 acres of freshwater marsh wetlands and 0.21 acres of tidal mangrove wetlands in the St. Lucie River basin. The impacts to the freshwater marshes must be mitigated out-of-basin because there are no mitigation banks in the basin which offer freshwater herbaceous mitigation credits. The proposed project will adversely impact 0.07 acres of the freshwater marshes and 0.05 acres of the mangrove wetlands in the Loxahatchee River basin. Those impacts must also be mitigated out-of-basin because there are no mitigation banks in the Loxahatchee River basin. Because some of the Applicant’s proposed mitigation must be provided out-of-basin, the ERP application included a cumulative impact analysis. The analysis evaluated whether the proposed project, when considered in conjunction with other possible development within the St. Lucie River and Loxahatchee River drainage basins, would result in unacceptable cumulative impacts considering each basin as a whole. There are approximately 10,068 acres of freshwater marshes within the St. Lucie basin, of which an estimated 4,929 acres are not preserved and would be at risk of potential future development. The proposed project will adversely impact 0.02 of those acres, which is only 0.0004 percent of the total at-risk acreage. There are about 34,000 acres of freshwater marshes within the Loxahatchee River basin, of which an estimated 7,463 acres are at risk of future development, and approximately 564 acres of tidal mangrove wetlands, of which an estimated 75 acres are at risk of future development. The project will adversely impact 0.07 acres of the freshwater marshes (0.0009 percent), and 0.05 acres of the tidal mangrove wetlands (0.0667 percent). Petitioners contend the Applicant’s analysis did not account for impacts from proposed activities authorized in the 2013 and 2015 general permit. However, Petitioners failed to prove there are unaccounted-for wetland impacts. The preponderance of the evidence supports the District’s determination that the proposed project will not cause unacceptable cumulative impacts to wetlands and other surface waters. Public Interest When an applicant seeks authorization for a regulated activity in, on, or over wetlands or surface waters, it must provide reasonable assurance that the activity will not be contrary to the public interest, or if the activity is within or significantly degrades an OFW, is clearly in the public interest, as determined by balancing the following criteria set forth in section 373.414(1)(a): Whether the activities will adversely affect the public health, safety, or welfare or the property of others; Whether the activities will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activities will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activities will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activities will be of a temporary or permanent nature; Whether the activities will adversely affect or will enhance significant historical and archaeological resources; and The current condition and relative value of functions being performed by areas affected by the proposed activities. The proposed work is not within an OFW, but entirely within the FECR corridor. The potential for overland flow and indirect impacts to OFWs is addressed by additional treatment of the stormwater prior to discharge. The proposed project would not significantly degrade an OFW. Therefore, the applicable inquiry is whether the project is contrary to the public interest. Factor 1: Public Safety, Safety, and Welfare Petitioners contend that the proposed project will adversely affect public health, safety, and welfare by impacting water quantity, water quality, and certain non-environmental matters such as emergency response times, traffic congestion, and potential train collisions with pedestrians and vehicles. Potential environmental impacts have been addressed above and, by a preponderance of the evidence, the District and the Applicant showed that such impacts would be insignificant or would be mitigated. As to the potential for non-environmental impacts associated with train operations, it is explained in the Conclusions of Law that the public interest test does not include consideration of non-environmental factors other than those expressly articulated in the statute, such as navigation and preservation of historical or archaeological resources. However, because evidence of non-environmental impacts was admitted at the final hearing, the issues raised by Petitioners will be briefly addressed below. The regulatory agency with specific responsibility for railroad safety is the Federal Railroad Administration (“FRA”). The FRA reviewed the safety features associated with the proposed passenger train operations, and approved them. Public safety will be enhanced at roadway crossings because of the proposed improvements and the use of modern technology in monitoring and managing the movement of trains. Petitioners contend that the addition of the passenger rail service will impede emergency response times in Martin County and St. Lucie County due to more frequent roadway closures. However, freight trains currently impede emergency response times due to their length and slow speed. The passenger trains will be much shorter in length and faster so that roadway crossing closures for passing passenger trains will be much shorter than for freight trains. The ERP Modification and 2017 Exemption do not affect freight train operations. The preponderance of the evidence shows that passenger rail service is unlikely to cause a material increase in the occurrence of circumstances where an emergency responder is impeded by a train. The current problem must be addressed through changes in freight train operations. Petitioners also contend that the passenger rail service will interfere with hurricane evacuation. The persuasive evidence does not support that contention. Train service would cease when a hurricane is approaching. Petitioners contend the trains will have to be “staged” on either side of the two moveable bridges while other trains cross, thereby blocking road intersections. However, this was a matter of speculation. The Applicant does not propose or want to stage trains at the bridges. Petitioners contend that the project will cause hazards to boaters on the St. Lucie River because there will be more times when the train bridge will be closed to allow the passage of passenger trains. Although there were many statistics presented about the number of boats affected, the evidence was largely anecdotal with respect to the current hazard associated with boaters waiting for the passage of freight trains and speculative as to the expected increase in the hazard if shorter and faster passenger trains are added. Factor 2: Conservation of Fish and Wildlife As previously found, the proposed activities will not adversely affect the conservation of fish and wildlife, including threatened or endangered species. The preponderance of the evidence shows the project will have only insignificant adverse impacts on water resources and wildlife. Factor 3: Navigation of the Flow of Water Petitioners claim the project will hinder navigation on the St. Lucie and Loxahatchee Rivers because of the increase in bridge closures if passenger trains are added. The U.S. Coast Guard is the agency with clear authority to regulate the opening and closing of moveable train bridges over navigable waters in the interests of navigation. Petitioners’ insistence that the District address the bridge openings is novel. No instance was identified by the parties where this District, any other water management district, or DEP has attempted through an ERP to dictate how frequently a railroad bridge must open to accommodate boat traffic. The Coast Guard is currently reviewing the project’s potential impacts on navigation and will make a determination about the operation of the moveable bridges. It has already made such a determination for the moveable bridge which crosses the New River in Ft. Lauderdale. Petitioners point to section 10.2.3.3 of the Applicant’s Handbook, which states that the District can consider an applicant’s Coast Guard permit, and suggest that this shows the District is not limited to what the Coast Guard has required. However, Section 10.2.3.3 explains the navigation criterion in terms of preventing encroachments into channels and improving channel markings, neither of which encompasses the regulation of train bridges. The preponderance of the evidence shows the project would not cause harmful erosion or shoaling or adversely affect the flow of water. Factor 4: Fishing, Recreational Values, and Marine Productivity The preponderance of the evidence shows that there would be no adverse impacts or only insignificant impacts to fishing or recreational values and marine productivity. Factor 5: Permanent Impact The proposed project will have both temporary and permanent impacts. The temporary impacts include the installation of silt fences and turbidity barriers designed to reduce water quality impacts and impacts to functions provided by wetlands and surface waters. The impacts due to track installation, construction and rehabilitation of the non-moveable bridges, at-grade crossing improvements, and stormwater system improvements are permanent in nature. The permanent impacts have been minimized and mitigated. Factor 6: Historical or Archaeological Resources Petitioners do not contend that the project will adversely affect significant historical or archaeological resources. Factor 7: Wetland Functions in Areas Affected Because the proposed work is within the limits of an existing railway corridor where impacts have been occurring for decades, and the majority of the wetlands to be affected are of a low to moderate quality, there would be only a small loss of functional values and that loss would be fully mitigated. Public Interest Summary When the seven public interest factors are considered and balanced, the proposed project is not contrary to the public interest. Even if Petitioners’ non-environmental issues are included, the project is not contrary to the public interest. Compliance With Other Permit Conditions The project is capable, based on accepted engineering and scientific principles, of performing and functioning as proposed. The Applicant demonstrated sufficient real property interests over the lands upon which project activities will be conducted. It obtained the required consent for proposed activities relating to bridge crossings over state-owned submerged lands. The Applicant provided reasonable assurance of compliance with all other applicable permit criteria. Exemption Verification for Roadway Crossings The Applicant’s ERP application included a mixture of activities which required an individual permit, as well as activities in roadway crossings which the Applicant claimed were exempt from permitting. Pursuant to section 5.5.3.4 of the Applicant’s Handbook, the Applicant requested a verification of exemption as to certain work to be done within 23 of those 24 roadway crossings. The District determined that the improvements for which an exemption was sought were exempt from permitting under rule 62-330.051(4)(c) for minor roadway safety construction, rule 62-330.051(4)(d) resurfacing of paved roads, and rule 62-330.051(10) for “construction, alteration, maintenance, removal or abandonment of recreational paths for pedestrians, bicycles, and golf carts.” The preponderance of the evidence shows the proposed work qualifies for exemption under these rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order that: approves Environmental Resource Permit Modification No. 13-05321-P on the terms and conditions set forth in the District’s Corrected Proposed Amended Staff Report of May 11, 2017; and approves the Verification of Exemption dated March 31, 2017. DONE AND ENTERED this 29th day of September, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2017.
The Issue The issue for determination is whether Respondent Leon County School Board should be issued a dredge and fill permit to excavate and backfill in connection with the installation of sewage collection system pipes beneath the Alford Arm of Lake Lafayette in Leon County.
Findings Of Fact On April 13, 1989, the Board submitted a permit application to DER for the dredge and fill permit which forms the basis for this proceeding. The project represented in the dredge and fill application consisted of installation of two sewage collection system pipes beneath the Alford Arm of Lake Lafayette. Installation would be accomplished by excavating and backfilling two trenches, each approximately 50 feet long by four feet wide by two feet deep. The pipes to be installed in the trenches adjacent to Buck Lake Road are one 15-inch gravity main and one 14-inch force main. A total of 15 cubic yards of soil was proposed for excavation and replacement. The project area consisted of less than 100 square feet. The Alford Arm in the project's vicinity is a canal dredged in the 1920's and 1930's. Neither the Alford Arm nor Lake Lafayette constitute Outstanding Florida Waters (OFW), instead these water bodies are Class III Waters. On April 14, 1989, DER staff conducted an inspection of the project site, completed a permit application appraisal of the project, and issued permit no. 371633191 for the project. On the same day, the permit was withdrawn when it was discovered that the document had been signed by an unauthorized official. On April 20, 1989, DER again issued permit no. 371633191 to the Board for the project. The dredging, pipe installation, and backfilling were subsequently completed. Water Quality Since the dredging and filling could potentially produce short-term turbidity in the Alford Arm as a result of sediment entering the water, a specific condition of the permit required the placement of a row of staked hay bales downstream from the project site prior to construction and thereafter until re- vegetation of the site had occurred. By compliance with this turbidity control measure, reasonable assurance was provided by the Board that violations of state water quality standards would not result from the project construction. The project did not cause any violations of DER water quality criteria for turbidity or any other water quality criteria. Numerous technological advances and safeguards built into the sewer lines and lift stations make probability of any leakage very remote. Petitioner's concern with regard to potential for leakage from the collection system lines and the lift stations to cause water quality problems in the Alford Arm is not supported by any competent substantial evidence of record regarding statistical frequency and probability of such occurrences. Further, there is no such evidence of infirmities regarding design soundness or the functional history of the pipe used in the project. Public Interest DER evaluated the project in accordance with the criteria of Section 403.918(2), Florida Statutes, prior to issuance of the permit. Another review has now been completed approximately two years after completion of the project. The project has not and will not cause any adverse impacts on public health, safety, welfare, or property of others. Likewise, the project has not caused adverse impacts on significant historical or archaeological resources. Similarly, no adverse impacts on the conservation of fish or wildlife, including endangered or threatened species or their habitats has or will result from the project. Interestingly, woodstorks have been observed feeding in the very vicinity of the project as recently as May 28, 1991, more than two years after completion of the project. No adverse impacts have or will be visited upon navigation or flow of the water. No harmful erosion or shoaling has or will result from the project. The project has not and will not cause any adverse impacts on fishing, recreational values or marine productivity in the vicinity of the project. The impacts of this dredge and fill project were temporary. The dredged and filled area has re-vegetated with the same species, pickerelweed and smartweed. Wetland functions of the site that existed prior to the project were minimal and have been re-established. Cumulative And Secondary Impacts Cumulative impacts from similar projects were not evidenced at the final hearing. There are no projects proposed which are closely linked or causally related to the dredge and fill project. The only non-speculative secondary impact from the project was possible leakage of wastewater from the collection system lines and lift station. The probability of such leakage is very low. Particularly in view of the geographical area, engineering design and manufacture of the pipes and waste collection system, such probability is speculative and minimal or non-existent in the absence of competent substantial evidence regarding statistical frequency of such an event. The construction of the sewage collection system with which the project is associated is a result of growth in the geographic area. While the project has not been established to induce growth in the area, such development would not affect Lake Lafayette since the collection system currently installed has a 400 gallon per minute capability, or the ability to serve 400 residential connections. Prior to issuance of the dredge and fill permit, 800 existing residential lots were platted along Buck Lake Road within two miles east and two miles west of the project site. Since the system could be upgraded to accommodate 1600 residential units, the potential increase that could result from the project in any event is an additional 800 residential units. If these additional residences are built at the very high density of one per quarter acre, these lots would cover only approximately two-thirds of a square mile or less than one percent of the Lake Lafayette drainage basin of approximately 80 square miles. Such development would have no measurable impact on Lake Lafayette.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered approving the issuance of permit number 371633191 to the Board. RECOMMENDED this 9th day of August, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2752 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None Submitted. Respondent Board's Proposed Findings: 1.-17. Adopted in substance. Respondent Department's Proposed Findings: 1.-24. Adopted in substance. COPIES FURNISHED: Terri Saltiel 7769 Deep Wood Trail Tallahassee, FL 32311 Richard A. Lotspeich, Esq. John T. LaVia, III, Esq. P.O. Box 271 Tallahassee, FL 32302 Michael Donaldson, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in this case are whether International Paper Company (IP) is entitled to National Pollutant Discharge Elimination System (NPDES) Permit No. FL0002526 issued by Department of Environmental Protection (Department) and whether the Department should approve Consent Order No. 08-0358, for the operation of IP’s paper mill in Cantonment, Escambia County, Florida.
Findings Of Fact The Department is the state agency authorized under Chapter 403, Florida Statutes (2008), to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. Perdido Bay is approximately 28 square miles in area. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. At the north end of Perdido Bay is a large tract of land owned by IP, known as the Rainwater Tract. The northern part of the tract is primarily fresh water wetlands. The southern part is a tidally-affected marsh. The natural features and hydrology of the fresh water wetlands have been substantially altered by agriculture, silviculture, clearing, ditching, and draining. Tee Lake and Wicker Lake are small lakes (approximately 50 acres in total surface area) within the tidal marsh of the Rainwater Tract. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to the lakes from Perdido Bay. Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. In 1989, the Department and Champion signed a Consent Order to address water quality violations in Elevenmile Creek. Pursuant to the Consent Order, Champion commissioned a comprehensive study of the Perdido Bay system that was undertaken by a team of scientists led by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies (“the Livingston studies"). Champion was granted variances from the water quality standards in Elevenmile Creek for iron, specific conductance, zinc, biological integrity, un-ionized ammonia, and dissolved oxygen (DO). In 2001, IP and Champion merged and Champion’s industrial wastewater permit and related authorizations were transferred to IP. In 2002, IP submitted a permit application to upgrade its wastewater treatment plant (WWTP) and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to the Rainwater Tract, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a reduction of biological oxygen demand (BOD) and TSS. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP, along with other process wastewater and become part of the effluent conveyed through the pipeline to the wetland tract. The effluent limits required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based, limiting the amount of pollutants that may be discharged for each ton of product that is produced. The proposed permit also imposes water quality-based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. The Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. A wetland pilot project was constructed in 1990 at the Cantonment mill into which effluent from the mill has been discharged. The flora and fauna of the pilot wetland project have been monitored to evaluate how they are affected by IP’s effluent. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silvicultural activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, it would be re-aerated and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged into the wetland would flow a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a somewhat shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter indicated that the effluent would move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be 0.6 inches. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline, berm, and control structures in the wetland tract, as originally proposed, were permitted by the Department through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. Petitioners did not challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge from Elevenmile Creek to the wetland tract. IP is given two years to complete construction activities and begin operation of the new facilities. At the end of the construction phase, least 25 percent of the effluent is to be diverted to the wetland tract. The volume of effluent diverted to the wetlands is to be increased another 25 percent every three months thereafter. Three years after issuance of the permit, 100 percent of the effluent would be discharged into the wetland tract and there would no longer be a discharge into Elevenmile Creek. The proposed Consent Order establishes interim effluent limits that would apply immediately upon the effective date of the Consent Order and continue during the two-year construction phase when the mill would continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12- month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply when 100 percent of the effluent is discharged into the wetland tract. IP is required by the Consent Order to submit quarterly reports of its progress toward compliance with the required corrective actions and deadlines. Project Changes After the issuance of the Final Order in 05-1609, IP modified its manufacturing process to eliminate the production of white paper. IP now produces brown paper for packaging material and “fluff” pulp used in such products as filters and diapers. IP’s new manufacturing processes uses substantially smaller amounts of bleach and other chemicals that must be treated and discharged. IP reduced its discharge of BOD components, salts that increase the specific conductance of the effluent, adsorbable organic halides, and ammonia. IP also reduced the odor associated with its discharge. In the findings that follow, the portion of the Rainwater Tract into which IP proposes to discharge and distribute its effluent will be referred to as the “effluent distribution system,” which is the term used by Dr. Nutter in his 2008 “White Paper” (IP Exhibit 23). The effluent distribution system includes the berms and other water control structures as well as all of the natural areas over which IP’s effluent will flow to Perdido Bay. Most of the existing ditches, sloughs, and depressions in the effluent distribution system are ephemeral, holding water only after heavy rainfall or during the wet season. Even the more frequently wetted features, other than Tee and Wicker Lakes, intermittently dry out. There is currently little connectivity among the small water bodies that would allow fish and other organisms to move across the site. Fish and other organisms within these water bodies are exposed to wide fluctuations in specific conductivity, pH, and DO. When the water bodies dry out, the minnows and other small fish die. New populations of fish enter these water bodies from Elevenmile Creek during high water conditions, or on the feet of water birds. IP's consultants conducted an extensive investigation and evaluation of animal and plant communities in the Rainwater Tract in coordination with scientists from the Department and the Florida Fish and Wildlife Conservation Commission. Among the habitats that were identified and mapped were some wet prairies, which are designated “S-2," or imperiled, in the Florida Natural Area Inventory. In these wet prairies are rare and endangered pitcher plants. IP modified the design of the proposed effluent distribution system to shorten the upper berms and remove 72.3 acres of S-2 habitat. The total area of the system was reduced from 1,484 acres to 1,381 acres. The proposed land management activities within the effluent distribution system are intended to achieve restoration of historic ecosystems, including the establishment and maintenance of tree species appropriate to the various water depths in the system, and the removal of exotic and invasive plant species. A functional assessment of the existing and projected habitats in the effluent distribution system was performed. The Department concluded that IP’s project would result in a six percent increase in overall wetland functional value within the system. That estimate accounts for the loss of some S-2 habitat, but does not include the benefits associated with IP’s conservation of S-2 habitat and other land forms outside of the effluent distribution system. IP proposes to place in protected conservation status 147 acres of wet prairie, 115 acres of seepage slope, and 72 acres of sand hill lands outside the effluent distribution system. The total area outside of the wetland distribution system that the Consent Order requires IP to perpetually protect and manage as conservation area is 1,188 acres. The Consent Order was modified to incorporate many of the wetland monitoring provisions that had previously been a part of the former experimental use of wetlands authorization. IP proposes to achieve compliance with all proposed water quality standards and permit limits by the end of the schedule established in the Consent Order, including the water quality standards for specific conductance, pH, turbidity, and DO, which IP had previously sought exceptions for pursuant to Florida Administrative Code Rule 62-660.300(1). Limitation of Factual Issues As explained in the Conclusions of Law, the doctrine of collateral estoppel bars the parties in these consolidated cases from re-litigating factual issues that were previously litigated by them in DOAH Case No. 05-1609. The Department’s Final Order of August 8, 2007, determined that IP had provided reasonable assurance that the NPDES permit, Consent Order, exception for the experimental use of wetlands, and variance were in compliance with all applicable statutes and rules, except for the following area: the evidence presented by IP was insufficient to demonstrate that IP’s wastewater effluent would not cause significant adverse impact to the biological community of the wetland tract, including Tee and Wicker Lakes. Following a number of motions and extensive argument on the subject of what factual issues raised by Petitioners are proper for litigation in this new proceeding, an Order was issued on June 2, 2009, that limited the case to two general factual issues: Whether the revised Consent Order and proposed permit are valid with respect to the effects of the proposed discharge on the wetland system, including Tee and Wicker Lakes, and with respect to any modifications to the effluent distribution and treatment functions of the wetland system following the Final Order issued in DOAH Case No. 05- 1609; and Whether the December 2007 report of the Livingston team demonstrates that the WQBELS are inadequate to prevent water quality violations in Perdido Bay. Petitioners’ Disputes Petitioners’ proposed recommended orders include arguments that are barred by collateral estoppel. For example, Jacqueline Lane restates her opinions about physical and chemical processes that would occur if IP’s effluent is discharged into the wetlands, despite the fact that some of these opinions were rejected in DOAH Case No. 05-1609. Dr. Lane believes that IP’s effluent would cause adverse impacts from high water temperatures resulting from color in IP’s effluent. There is already color in the waters of the effluent distribution system under background conditions. The increased amount of shading from the trees that IP is planting in the effluent distribution system would tend to lower water temperatures. Peak summer water temperatures would probably be lowered by the effluent. Petitioners evidence was insufficient to show that the organisms that comprise the biological community of the effluent distribution system cannot tolerate the expected range of temperatures. Dr. Lane also contends that the BOD in IP's effluent would deplete DO in the wetlands and Tee and Wicker Lakes. Her contention, however, is not based on new data about the effluent or changes in the design of the effluent distribution system. There is a natural, wide fluctuation in DO in the wetlands of the effluent distribution system because DO is affected by numerous factors, including temperature, salinity, atmospheric pressure, turbulence, and surface water aeration. There are seasonal changes in DO levels, with higher levels in colder temperatures. There is also a daily cycle of DO, with higher levels occurring during the day and lower levels at night. It is typical for DO levels in wetlands to fall below the Class III water quality standard for DO, which is five milligrams per liter (mg/l). An anaerobic zone in the water column is beneficial for wetland functions. DO levels in the water bodies of the effluent distribution system currently range from a high of 11 to 12 mg/l to a low approaching zero. The principal factor that determines DO concentrations within a wetland is sediment oxygen demand (SOD). SOD refers to the depletion of oxygen from biological responses (respiration) as well as oxidation-reduction reactions within the sediment. The naturally occurring BOD in a wetland is large because of the amount of organic material. The BOD associated with IP’s effluent would be a tiny fraction of the naturally occurring BOD in the effluent distribution system and would be masked by the effect of the SOD. It was estimated that the BOD associated with IP's effluent would represent only about .00000000001 percent of the background BOD, and would have an immeasurable effect. Dr. Pruitt’s testimony about oxygen dynamics in a wetland showed that IP’s effluent should not cause a measurable decrease in DO levels within the effluent distribution system, including Tee and Wicker Lakes. FOPB and James Lane assert that only 200 acres of the effluent distribution system would be inundated by IP’s effluent, so that the alleged assimilation or buffering of the chemical constituents of the effluent would not occur. That assertion misconstrues the record evidence. About 200 acres of the effluent distribution system would be permanently inundated behind the four berms. However, IP proposes to use the entire 1,381-acre system for effluent distribution. The modifications to the berms and the 72-acre reduction in the size of the effluent distribution system would not have a material effect on the assimilative capacity of system. The residence time and travel time of the effluent in the system, for example, would not be materially affected. Variability in topography within the effluent distribution system and in rainfall would affect water depths in the system. The variability in topography, including the creation of some deeper pools, would contribute to plant and animal diversity and overall biological productivity within the system. The pH of the effluent is not expected to change the pH in the effluent distribution system because of natural buffering in the soils. The specific conductance (saltiness) of IP’s effluent is not high enough to adversely affect the biological community in the fresh water wetlands of the effluent distribution system. IP is already close to maintaining compliance with the water quality standard for specific conductance and would be in full compliance by the end of the compliance schedule established in the proposed Consent Order. After the 2007 conversion to brown paper manufacturing, IP’s effluent has shown no toxicity. The effluent has passed the chronic toxicity test, which analyzes the potential for toxicity from the whole effluent, including any toxicity arising from additive or synergistic effects, on sensitive test organisms. Dr. Lane points out that the limits for BOD and TSS in the proposed NPDES permit exceed the limits established by Department rule for discharges of municipal wastewater into wetlands. However, paper mill BOD is more recalcitrant in the environment than municipal wastewater BOD and less “bio- available” in the processes that can lower DO. In addition, the regulatory limits for municipal wastewater are technology-based, representing “secondary treatment.” The secondary treatment technology is not applicable to IP’s wastewater. Sampling in the pilot wetland at the paper mill revealed a diversity of macroinvertebrates, including predator species, and other aquatic organisms. Macroinvertebrates are a good measure of the health of a water body because of their fundamental role in the food web and because they are generally sensitive to pollutants. Petitioners contend that the pilot wetland at the paper mill is not a good model for the effect of the IP’s effluent in the wetland distribution system, primarily because of the small amount of effluent that has been applied to the pilot wetland. Although the utility of the pilot wetland data is diminished in this respect, it is not eliminated. The health of the biological community in the pilot wetland contributes to IP’s demonstration of reasonable assurance that the biological community in the effluent distribution system would not be adversely affected. The effluent would not have a significant effect on the salinity of Tee and Wicker Lakes. Under current conditions, the lakes have a salinity of less than one part per thousand 25 percent of the time, less than 10 parts per thousand 53 percent of the time, and greater than 10 parts per thousand 22 percent of the time. In comparison, marine waters have a salinity of 2.7 parts per thousand. IP’s effluent would not affect the lower end of the salinity range for Tee and Wicker Lakes, and would cause only a minor decrease in the higher range. That minor decrease should not adversely affect the biota in Tee and Wicker Lakes or interfere with their nursery functions. The proposed hydrologic loading rate of the effluent amounts to an average of six-tenths of an inch over the area of effluent distribution system. The addition of IP’s effluent to the wetlands of the effluent distribution system and the creation of permanent pools would allow for permanent fish populations and would increase the opportunity for fish and other organisms to move across the effluent distribution system. Biological diversity and productivity is likely to be increased in the effluent distribution system. By improving fish habitat, the site would attract wading birds and other predatory birds. Although the site would not be open to public use (with the exception of Tee and Wicker Lakes), recreational opportunities could be provided by special permission for guided tours, educational programs, and university research. Even if public access were confined to Tee and Wicker Lakes, that would not be a reduction in public use as compared to the existing situation. IP’s discharge, including its discharges subject to the interim limits established in the Consent Order, would not interfere with the designated uses of the Class III receiving waters, which are the propagation and maintenance of a healthy, well-balanced population of fish and wildlife. The wetlands of the effluent distribution system are the “receiving waters” for IP’s discharge. The proposed project would not be unreasonably destructive to the receiving waters, which would involve a substantial alteration in community structure and function, including the loss of sensitive taxa and their replacement with pollution-tolerant taxa. The proposed WQBELs would maintain the productivity in Tee and Wicker Lakes. There would be no loss of the habitat values or nursery functions of the lakes which are important to recreational and commercial fish species. IP has no reasonable, alternative means of disposing of its wastewater other than by discharging it into waters of the state. IP has demonstrated a need to meet interim limits for a period of time necessary to complete the construction of its alternative waste disposal system. The interim limits and schedule for coming into full compliance with all water quality standards, established in the proposed Consent Order, are reasonable. The proposed project is important and beneficial to the public health, safety, and welfare because (1) economic benefits would accrue to the local and regional economy from the operation of IP’s paper mill, (2) Elevenmile Creek would be set on a course of recovery, (3) the wetlands of the effluent distribution system would become a site of greater biological diversity and productivity, (4) the environmental health of Perdido Bay would be improved, (5) the Department’s decades-long enforcement action against IP would be concluded, (6) substantial areas of important habitat would be set aside for permanent protection, and (7) the effluent distribution system would yield important information on a multitude of scientific topics that were debated by these parties. The proposed project would not adversely affect the conservation of fish or wildlife or their habitats. The proposed project would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. There is no Surface Water Improvement and Management Plan applicable to IP’s proposed discharge. The preponderance of the record evidence establishes reasonable assurance that IP’s proposed project would comply with all applicable laws and that the Consent Order establishes reasonable terms and conditions to resolve the Department’s enforcement action against IP for past violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order granting NPDES Permit No. FL0002526 and approving Consent Order No. 08-0358. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should modify Surface Water Management (SWM) Permit No. 50-00548-S, held by the ACME Improvement District (Acme) to authorize alternate SWM facilities within Acme Basin B primarily by: eliminating the water quality function originally provided by a 79-acre retention area known as Peacock Pond pursuant to a 1979 permit; replacing it with adequate alternate methods of water quality treatment; and authorizing an alternative pump operation schedule for the remainder of Acme Basin B. The permit should be modified only if Acme has provided reasonable assurances that the proposed modifications comply with the relevant portions of SFWMD's Environmental Resource Permit (ERP) regulations set forth in: Part IV of Chapter 373, Florida Statutes; Chapter 40E-4, Florida Administrative Code; and the Basis of Review for ERP Applications (BOR) (collectively referred to as ERP criteria).
Findings Of Fact General SFWMD is a public corporation existing by virtue of Chapter 25270, Laws of Florida, 1949, and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multipurpose water management district with its principal office in West Palm Beach, Florida. Acme is a dependent special district of the Village of Wellington, a municipality of the State of Florida. Polo is a Florida corporation and a developer in the Village of Wellington, Palm Beach County, Florida, including a 79-acre parcel of real property known as Peacock Pond, and other undeveloped property that are part of the subject of this permitting proceeding. Wellington Country Place Property Owners Association, Inc. (POA) is the property owners association for WCPPUD. Permit History 1978 Permit In 1978, SFWMD issued to Acme the original backbone SWM permit for approximately 18,000 acres, including primary drainage Basins A (to the north) and B (to the south). Pierson Road, which runs east/west, is the boundary between the two basins. (The backbone C-23 canal parallels Pierson Road to its immediate north.) Acme Basin A discharges to the C-51 canal, which flows east to the Atlantic Ocean. Acme Basin B, which consists of approximately 8,680 acres, discharges to the Loxahatchee National Wildlife Refuge (Refuge) through two Acme pump stations. The Refuge is part of what is now designated the Everglades Protection Area. The 1978 backbone permit, which modified a still earlier permit, established lower water control elevations in Basin A, which was being developed for urban use, than in Basin B, which was planned to remain largely in agricultural use. Under the 1978 permit, the maintained (regulation) stage in Basin A was set at 11' above mean sea level (msl) with discharge beginning at 12' msl during the wet season and 12' msl with discharge beginning at 13' msl during the dry season. The maintained stage in Basin B remained at 13' msl in both the wet and dry season. Under the 1978 permit, it was anticipated that routing surface water runoff in Basin A through canals and retention lakes would provide the water quality treatment required under the criteria in effect at the time (including a requirement to provide half an inch of detention over the entire Basin A for water quality treatment purposes.) At the time, planned residential development in the extreme southwest corner of Basin B was anticipated to generate only limited quantities of runoff due to the nature of typical development in 5-acre parcels; quality of runoff was expected to be better than from previous agricultural use. Presumably because there would be no change under the 1978 permit, water quality treatment in the remainder of Basin B was not addressed. 1979 Permit By 1979, Acme requested a permit modification for development of the Wellington WCPPUD, which is located entirely within Acme Basin B. The PUD's northern boundary is Pierson Road; the western boundary is the backbone C-2 canal; and the eastern boundary is the backbone C-6 canal. The north/south backbone C-4 canal divides the western third of the PUD from its eastern two-thirds; it also forms the western boundary of the area known as Peacock Pond. The southern boundary of the PUD generally follows the east/west backbone C-24 canal.2 The 1979 permit modification authorized construction and operation of water management facilities in portions of WCPPUD, including a 79-acre pumped retention area (which was to become known as Peacock Pond), pump station, and control structure. Under the 1979 permit, the maintenance stage (water control) elevation within WCPPUD only was set at 12' National Geodetic Vertical Datum (NGVD) (essentially, the same as msl) in the wet season and 13' NGVD in the dry season. The minimum road and finish floor elevations were established at elevation 16' and 17' NGVD, respectively. Without regard to seasonality, the retention area pump station was to begin operation when a stage of 13' NGVD was reached in the adjacent C-4 canal and was to discontinue operation when the system was drawn down to elevation 12' NGVD. The 1979 permit used the 79-acre area known as Peacock Pond as its central water quality feature. Runoff from WCPPUD was to be collected in roadside swales within road right-of-ways and routed by storm sewer inlets and pipe to either a proposed 12-acre lake or one of the collector swales or canals connected to the Peacock Pond site. The 1979 permit contemplated use of the Peacock Pond site as a "retention-type" surface water management facility. Generally, such a facility detains the water, allows the pollutants to settle, then slowly lets the water out. In the 1979 permit, Acme was required to construct a berm or dike around the 79-acre area to create an above-ground impoundment to serve as the retention area. A pump was required to be installed at the northwest corner of Peacock Pond to pump water from the adjacent C-4 canal into the retention area. The berm or dike was to detain water on the site until it reached the level of a gravity flashboard riser outfall structure at the southwest corner of the site, which would be set at 15' NGVD and would return the water to Acme's C-4 canal just downstream of a broad-crested weir, which would be set at 14' NGVD. Additional discharge from the system would be provided by two 72-inch gravity-flow flashboard risers with crest elevation 14' NGVD-- one to the C-4 canal and the other to the C-6 canal. Water discharged from the system would flow south and west through Acme's system of Basin B canals, eventually discharging to the Refuge through the two pump stations to the south and southwest. During a rise in stage in the C-4 from 13' to 14' NGVD, the pump station in the northwest corner of Peacock Pond would continue filling the retention area. Considering pumped inflow of 4000 gallons per minute (gpm), the retention area would take 3.3 days to reach a peak stage of 16'. At that stage, 58 acre-feet of water would be stored within the retention area. SFWMD calculated that Peacock Pond would treat approximately 200 million gallons of water a year in this way. SFWMD and Acme have taken the position in this case that the sole purpose of Peacock Pond in the 1979 permit was to serve as a water quality treatment area for the Wellington WCPPUD. It is true that the 1979 permit contemplated that flood protection for Basin B would be provided through use of the two pumps discharging into the Refuge (Pump #1 capable of pumping at the rate of 100,000 gpm, and Pump #2 capable of pumping at 120,000 gpm). But, as subsequent events showed, the Peacock Pond retention area was part of an overall SWM system for WCPPUD that maintained water stage elevations there at a lower level than in the rest of Basin B. In other words, while designed primarily to provide water quality treatment, and not designated a flood control facility, it had some residual flood control benefit within WCPPUD. Actual Operation After 1979 Permit Although Peacock Pond was critical to the functioning of the SWM system for WCPPUD and Basin B, SFWMD never obtained from the owner the legal right to use it for SWM purposes. From 1979 to 1986, SFWMD was advised that the Peacock Pond facility was in substantial conformance with the permitted conditions. But some time after property, including Peacock Pond, was transferred to Landmark Land Company of Florida, Inc., the pumps in the northwest corner of Peacock Pond stopped being used regularly.3 Instead, Acme water control structure 115 (a 48-inch culvert and 72-inch flashboard riser which replaced the broad- crested weir in the C-4 canal through a 1982 permit modification) and structure 117 (discharging to the C-6 canal) were opened so that water levels in Wellington Country Place equalized with the surrounding Acme Basin B, which was controlled by the two pump stations discharging to the Refuge to the south and southwest. The evidence indicates, for at least the last ten years, the Basin B pumps have been operated to maintain water elevations of 12' NGVD in the wet season and 13' NGVD in the dry season--the same as for the County Place PUD under the 1979 permit. Under this water elevation control regime, flooding within WCPPUD was not a problem, but the water quality treatment from the Peacock Pond facility required under the 1979 permit was not being realized. The pump operation schedule under the 1979 permit did not specify a "bleed-down" mechanism. As a result, when internal stages exceeded the specified control elevation threshold, both Basin B pumps would be operated at a combined rate of 220,000 gpm until the seasonal water control elevation was again established. This operation did not take full advantage of the nutrient removal capacity of the existing system. 1989 Equestrian Estates Permit Modification In 1989, construction and operation authorization was issued for the Equestrian Estates development located within WCPPUD west of the C-4 canal. Among other things, this modification to SWM Permit No. 50-00548-S included the construction of lakes for use as wet detention ponds and a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal. However, this control structure and its associated culvert were never constructed. Peacock Pond Enforcement Proceedings Around 1997, SFWMD was informed that the Peacock Pond pump was not being operated and initially brought enforcement proceedings against Polo, which had become the owner of the property in 1993, to resume pumping into Peacock Pond. At the time, SFWMD was involved in enforcement proceedings against Polo, as owner, for unauthorized dredging and filling in Peacock Pond, and SFWMD made an incorrect assumption that Polo was the operator of the Peacock Pond facility under the 1979 permit. SFWMD subsequently realized that Acme, not Polo, was the permit holder. When Acme attempted to turn the pumps on again, Polo refused to allow Acme to do so without compensation. SFWMD then brought an enforcement action against Acme for not operating Peacock Pond in accordance with its permit. SFWMD and Acme entered into a Consent Order requiring Acme to operate Peacock Pond and the rest of the SWM system as required by the 1979 permit. Acme subsequently brought eminent domain proceedings against Polo to acquire Peacock Pond and obtained a final judgment, but the compensation required under the final judgment was prohibitive. SFWMD and the Village of Wellington then entered into a Joint Cooperation Agreement, which (among other things) required the Village of Wellington to submit an "application to modify the Peacock Pond Permit and Consent Agreement to either eliminate or substantially reduce the size of Peacock Pond [which] must provide reasonable assurances that demonstrate that the water quality treatment, water quantity and environmental benefits associated with the Peacock Pond Permit are maintained through the modified facility or by other equivalent measures." In the meantime, SFWMD ordered Acme to set control structures 115 in the C-4 canal and 117 in the C-6 canal at 14' NGVD as required by the original 1979 permit. When this was done without operation of the Peacock Pond retention area as also contemplated and required by the 1979 Permit, the water levels caused septic tank problems to some residents in WCPPUD, leading SFWMD to issue emergency authorizations to lower the crest-settings of structures 115 and 117 to 12.5' NGVD. At those settings, water levels in WCPPUD stayed between 12' and 13' NGVD, and there have been no septic tank problems in the last two years. Specifically, measured water levels in the C-4 canal north of control structure 115 generally ranged between elevation 12' NGVD and 13' NGVD from November 2001 through October 2003, with occasional variances above or below due to drought or rain periods. Proposed Modification to Eliminate Use of Peacock Pond On May 12, 2000, Acme filed an application to modify its permit. The primary purpose of this modification was to authorize alternate SWM facilities within Basin B (primarily within WCPPUD) to maintain the water quality treatment function that was assumed would be realized by Peacock Pond in the WCPPUD permit issued in 1979. Additional components of the permit modification are: installation of a 7.8 acre flow through littoral zone within the C-2 Canal for additional cleansing of Acme Basin B water; modification of the pump operation schedule for Basin B; revision of surface water management design requirements for future development within Country Place to include additional lake acreage and littoral zones; elimination of a previously permitted (but not constructed) control structure allowing discharge from Lake No. 5 to the C- 4 Canal so that water from Lake 5 continues to drain through established canals and lakes into the C-4 Canal; modification of existing flashboard riser water control structures 115 and 117 within the C-4 and C-6 Canals to crest elevations of 12’ and 13’ NGVD, respectively, so that water will be detained upstream but water from both the eastern and western ends of the Wellington WCPPUD drain toward and into the C-4 canal during low flow; and an analysis of nutrient (and phosphorus) loading, removal and export from the Country Place system During the application process, Acme submitted detailed water quality calculations analyzing and comparing the 1979 permit, based on the land uses at that time and the anticipated phosphorous loading that would be discharged from the system, and the proposed modification with current land uses and phosphorous loading now anticipated. To support its modification application, Acme recalculated the water quality treatment currently provided by existing lakes--many of which were not planned in 1979--and other water quality treatment features in WCPPUD. Acme's calculations assumed that all land owners of undeveloped tracts in Basin B, including land owners in WCPPUD, wishing to develop their properties in the future will have to provide for adequate water quality treatment or other acceptable alternatives, as required by SFWMD regulations in place at the time the future permit applications are filed. In order to meet those requirements, future developers can either create lakes on their properties, treat their water off-site on properties such as Peacock Pond, or use other equivalent alternatives. In conformance with current SFWMD criteria, Acme’s application only considered and counted as water quality treatment features water bodies with an average width of at least 100' and a size of at least 0.5 acres. SFWMD spent an enormous amount of time reviewing the data and analyses that were submitted. SFWMD then issued numerous lengthy requests for additional administrative and technical information, requiring Acme among other things to provide water level information and perform management calculations. Acme provided necessary calculations to demonstrate that flood levels within WCPPUD would not be affected by the elimination of Peacock Pond as a water quality feature. Acme's calculations demonstrated that the water quality treatment functions currently provided by existing lakes meeting SFWMD's dimensional criteria and by on-site swales, together with the 7.8-acre off-site littoral shelf to be constructed in canal C-2, would be sufficient to replace the water quality treatment functions assumed to be provided by Peacock Pond under the 1979 permit. SFWMD issued a Staff Report on April 29, 2003, recommending approval of the application to modify the SWM permit. SFWMD found that Acme had provided reasonable assurances by Acme that the applicable permit criteria would be met. On May 15, 2003, the SFWMD Governing Board approved the Staff Report to issue a modification to SWM Permit No. 50-00548- S, Application No. 000512-12. Control Elevations and Pump Operation Schedules The proposed permit modification states that there will be a change in the permitted water control elevations and pump operation schedule within Basin B. However, as set out in Finding 17, supra, in actual practice, water elevations throughout Basin B have been maintained at the levels permitted for WCPPUD under the 1979 permit for at least the last ten years, which include the time period after the Peacock Pond pumped retention area stopped being operated as required under the 1979 permit. The proposed modifications essentially would continue the historical operation of the Acme Basin B system during this time period. In essence, the changes in Basin B outside WCPPUD will simply conform the permit conditions to actual conditions for at least the last ten years. For that reason, SFWMD and Acme has referred to modification as being only "on paper." As reflected in Finding 23(e), supra, water control structures 115 and 117 would be modified in association with this permit modification so that structure 115 (located in the C-4 canal adjacent to Peacock Pond) will have a weir crest elevation of 12' NGVD and structure 117 (located adjacent to the C-6 canal) will have a weir crest elevation of 13' NGVD. As a result, when the water level in WCPPUD exceeds 12' NGVD, it would begin to "bleed down" out of structure 115 in the C-4 canal. If the water level in WCPPUD continued to rise and reached 13' NGVD, it would begin to "bleed down" out of the 117 structure in the C-6 canal as well. Under the proposed permit modification, the pump operation schedule would be revised so that no pumping would occur until Basin B stages reached 13' NGVD. Then, the pump rate will average 30,000 gpm, which equates to a "bleed down" discharge of 20 percent of the one-inch detention above 12' NGVD per day. When the stage has been brought down to 12' NGVD, all pumping would cease. During significant storm events, when the internal stages exceed 13' NGVD, the previously permitted peak discharge rate of 220,000 gpm will be maintained. If the pumps are operated as proposed in this modification, the system will be able to take full advantage of its nutrient removal capacity. At the same time, water levels will be maintained within the ranges of historical operation over at least the last ten years. The only difference is that, except for major storm events, water levels will be allowed to "bleed down" at a slower rate. Notwithstanding these facts, Petitioners believe that control elevations in WCPPUD have always been higher than in Basin B, and are concerned that the proposed "on paper" modification is in the nature of a "smoke and mirrors" trick. Petitioners are concerned the proposed modifications will cause additional water to be detained in WCPPUD to the detriment of the equine industry there. But the evidence indicated that the their concerns are not well-taken. Under the proposed modification, there will be one inch of detention over the entire Basin B water management system between the elevations of 12' NGVD and 13' NGVD. This is the same range of elevations established for WCPPUD in the 1979 SWM permit. The calculated detention volume accounts for the volume of water which is physically accommodated in the system between 12' NGVD and 13' NGVD. There is no additional detention created in the WCPPUD system through the proposed changes. The proposed Basin B pump schedule will result in the same range of water table fluctuation as required in the 1979 SWM permit. As Petitioners' witness, Mr. Straub, testified, the system has worked well as operated for the last three years. No significant changes are to be expected as a result of the proposed pump operation schedule changes designed to achieve greater water quality treatment benefits. In combination, the modification of the pump operation schedule for Basin B and the revisions to the WCPPUD system are expected to result in an improvement in flood control with lower flood stages within WCPPUD through a more efficient water management system. Acme has demonstrated that the proposed modifications will not result in a change in actual water control elevations on Petitioners' properties; will not cause water to back up and cause flooding or septic tank problems within WCPPUD; and will comply with Florida Administrative Code Rule 40E-4.301(1)(a), (b), and (c.) The undisputed expert testimony was that Acme gave reasonable assurances that the proposed permit modification will not "lower existing water table elevations." (Emphasis added.) Fla. Admin. Code R. 40E-41.363(4). Equivalent Water Quality Treatment Provided Acme provided calculations comparing the treatment which was assumed to take place within the originally permitted surface water management system of WCPPUD (which included Peacock Pond), the treatment which is currently being provided by the existing system, and the treatment that will be provided under various assumed future scenarios. Acme demonstrated that there will be an equivalent amount of water quality treatment even though the use of Peacock Pond as a water quality retention area is being eliminated. Petitioner did not provide any contrary evidence to show that the removal of Peacock Pond reduced water quality treatment in the system. As a result, reasonable assurances were given that there will be no adverse effect on the quality of receiving waters as a result of this proposed modification. Additional Wet Detention Areas Now Exist Although the 1979 permit required only 12 acres of wet retention ponds, analysis of aerial photographs and existing permits issued after 1979 indicates that 54.4 acres of wet detention lakes meeting current regulatory criteria now exist in WCPPUD. Another 33 acres of existing wet retention areas (including canals) are present but do not meet the minimum width criteria required for wet detention ponds. Approximately another 4 acres meet the dimensional requirements but are not legally encumbered for use by Acme for water quality purposes. For example, Lakes 6 and 8 meet the dimensional criteria but are not platted as water management areas or encumbered by suitable drainage easement. A similar situation exists with Lake 9, which has been assumed to provide wet detention treatment over only 15.41 acres since the northern 2.25 acres of the 17.66-acre lake are outside the platted water management area's footprint. If all lakes, ponds, and canals within WCPPUD were counted for water quality purposes, Acme calculated that there would be enough capacity to treat approximately one inch of runoff from WCPPUD. Not counting the water bodies not meeting dimensional requirements or not legally encumbered, but assuming that future development within WCPPUD will have 13% water bodies qualifying for use as wet detention areas under current criteria, Acme calculated that there would be capacity to treat one inch runoff from current and future development within WCPPUD. (Instead of 13 percent qualifying wet detention areas, alternative equivalent water quality treatment also could be used to meet applicable water quality treatment criteria.) Planted Filter Marsh Located in C-2 Canal Provides Additional Water Quality Treatment Phosphorus loading can be described as the pounds of phosphorus which are being discharged to a water body through storm water runoff. In WCPPUD today, phosphorous loading is higher than originally anticipated and calculated when the 1979 Permit was issued due to differences in the way the land has been developed over the last 20 years. The main difference is more equestrian activity and its higher phosphorus loading than anticipated in 1979. Acme submitted detailed phosphorus loading information which is included in Exhibits 7A through 7E to the Staff Report (SFWMD Exhibit 5), comparing what the original permit anticipated to what is happening today, and what would happen with the modified system. The detailed information is summarized on Exhibit 8 to the Staff Report. To address phosphorus loading, the proposed project includes construction of a 7.8-acre filter marsh within a portion of the Acme C-2 Canal right-of-way located within Basin B about a half mile west of WCPPUD. The project will extend from the intersection of the C-2 and C-23A canals southwards approximately 6,800'. The filter marsh will treat water flowing south through the C-2 canal prior to reaching the Acme pump stations discharging into the Refuge. The existing Acme C-2 canal will be expanded to a width of approximately 80' to 130' and will incorporate a meandering 40' to 60' wide constructed and planted littoral shelf at elevation 10.0' NGVD. Adjacent to the proposed littoral zone, a 25' wide section of the canal will be excavated to an elevation of approximately 6.0' NGVD. This deeper section is proposed to prevent any reduction in hydraulic capacity of the existing C-2 Canal. The 7.8-acre area will be planted with native wetland vegetation on three centers. It is anticipated that the planted vegetation will meet or exceed the eighty percent coverage requirement within two years; however, additional plants will be installed if the area fails to meet such expectations. Monitoring will occur on a monthly basis until the filter marsh achieves a 50 percent areal coverage of desirable planted and recruited wetland vegetation. Upon attainment of the 50 percent coverage criterion, the monitoring frequency will be reduced to four times per year for a period of three years. Subsequent maintenance and monitoring events will occur semi- annually. Should exotic infestation occur, herbicide and/or hand clearing will be utilized to bring the filter marsh into compliance with desired plant specie densities. Special Condition No. 12 of the Staff Report (SFWMD Exhibit 5) requires that the Acme adhere to the filter marsh maintenance plan. The proposed littoral zone construction is expected to be initiated within six months of permit issuance and completed within six months of commencement. The pollutant loading/removal spreadsheets provide an estimate that the marsh will result in the annual removal of 33 pounds of total phosphorus. At the same time, the proposed filter marsh will add the equivalent of one-half inch of water quality treatment benefits within the entirety of Basin B. As a result, with the proposed filter marsh, Acme gave reasonable assurances that the proposed permit modification would provide "an additional fifty (50) percent retention/detention water quality treatment addition to the water quality treatment volumes required in section 5.2.1. of the Basis of Review [for projects within a Water Protection Area or Area Basin]." Fla. Admin. Code R. 40E-41.363(5). Approximately half of the proposed filter marsh will extend north of the east/west C-24 Canal, and half will extend south of it. The northern half will treat water from an area of relatively intense equestrian use just west of WCPPUD; the southern half will continue to treat water flowing through the northern half of the filter marsh. However, the southern half also will treat some water from the C-4 and C-6 canals in WCPPUD, which flows south to the C-24 and then west to the C-2. Exhibit 9B of the Staff Report (SFWMD Exhibit 5) delineates the assumed contributing area of 960 acres. BMPs Provide Improvements in Water Quality Best Management practices (BMPs) are water quality treatment operational practices to prevent pollutants from ultimately entering the receiving water body. BMPs are also often referred to as source controls. Examples of BMPs include street-sweeping and cleaning out storm gutters to control pollutants at their source. BMPs are commonly considered in ERP permitting. The Village of Wellington has mandated a BMP program in Basin B, including: an ordinance dealing with phosphorus and water quality improvement; an ordinance regulating the application of fertilizer, requiring no more than two percent phosphorus content; and an equestrian BMP requiring equestrian residuals, commonly known as manure, be collected and contained in concrete covered bins. Historically, horse manure was stockpiled in the open and exposed to rainfall. Stormwater runoff from the stockpiled manure often flowed directly into the Acme canals. Stormwater runoff from equestrian residuals has been a major contributing factor to the amount of phosphorus being discharged to the Everglades from Basin B. The Village of Wellington also is implementing BMPs for its own canal maintenance and for cleaning phosphorous-laden sediments from its canals. The calculations provided to SFWMD by Acme concerning BMPs do not assume an initial 100-percent compliance. Initially, a 20-percent compliance was assumed because the ordinances are fairly new. These BMPs were not in place when the 1979 permit was issued. Under the current application, it is expected that the BMPs throughout Basin B will significantly reduce the amount of phosphorus ultimately discharged through the two Acme pump stations to the Refuge. Although there is an increase in phosphorus loading from that anticipated in 1979, the BMPs, filter marsh, amendment to the pump operation schedule, comprehensive water quality monitoring plan, and other items in the modification offset the increase. (The modifications in the proposed permit are not designed to address the overall Basin B phosphorus problems.) Comprehensive Water Quality Monitoring Program SFWMD and the Village of Wellington have implemented a comprehensive water quality monitoring program with Basin B. This program includes existing and proposed sampling points within WCPPUD shown on Exhibits 2 and 9B of the Staff Report (SFWMD Exhibit 5). This permit modification requires that Acme continue this monitoring program as specified in Special Condition No. 11 to the Staff Report. Elimination of Existing Control Structure As stated in Finding 19, supra, a 1989 modification to the 1979 authorized construction and operation of a control structure allowing discharge from Lake No. 5 (as designated in Exhibit 2 of the Staff Report, SFWMD Exhibit 5) to the C-4 Canal, which was never built. Instead, as shown on Exhibit 2 of the Staff Report, the existing SWM system for Equestrian Estates discharges to the C-4 Canal well to the north of the authorized control structure via a 100' wide canal. The proposed permit modification will eliminate the authorization for the Equestrian Estates control structure which was never constructed. This revision is necessary to ensure that discharge from the development will continue to occur upstream of Structure 115, as it does today, and that the on- site detention facilities within Equestrian Estates will function as modeled in the water quality analysis. Polo's Pending Application for Peacock Pond Polo has pending a separate application to SFWMD (Application No. 020215-10) requesting authorization for development of Peacock Pond as a polo field. Polo’s proposed water quality feature for its Peacock Pond polo fields development includes a lake on the north end of Peacock Pond. It appears that the lake would utilize lakes/canals 12 and 13, which are currently located at the north end and northeast corner of Peacock Pond, essentially enlarging those lakes/canals to the south and west into Peacock Pond. Polo's application is currently incomplete and fails to address a number of significant water resource issues. SFWMD mailed an initial Request for Additional Information (RAI) to Polo on March 15, 2002. Responses were due within thirty days. As of the date of the final hearing in this case, no response to the initial RAI had been submitted. Notwithstanding its pending application, Polo professes to believe that its undeveloped properties in WCPPUD are "vested," so that Polo should not be required to provide water quality treatment when developing its properties in the future. But the 1979 permit stated that it only permitted construction in certain parts of WCPPUD and that individual permit modifications would be required for the future development of additional phases. (SFWMD Exhibit 2 at p. 1; special conditions.) All "grand fathered" development already has taken place. No evidence or convincing legal argument was presented by Petitioners for the proposition that land owners seeking to develop their properties in Wellington WCPPUD now or in the future should be "vested" and thus subject to different water management regulations than other land owners seeking to develop their properties in Acme Basin B. SFWMD's Proposed Corrections to Staff Report At the Final Hearing, SFWMD suggested that two corrections be made to the Staff Report. The first would add "Section No. 20" on page 1 of the Staff Report (SFWMD Exhibit 5) to clarify the property is actually located in sections 20 and This type of change would be made administratively even without this proceeding. The other correction is proposed on page 4 of the Staff Report (SFWMD Exhibit 5), pertaining to the description of the water elevation within Basin B and Country Place, as follows: The water elevation within Basin B and Country Place was originally permitted with a wet season control elevation of 12.0' and a dry season control of 13.0' NGVD. The minimum road and finish floor elevations were established at elevation 16.0' and 17.0 NGVD, respectively. The water elevation within Basin B was permitted in 1978 with a schedule stage of 13' NGVD in the wet season and 13' NGVD in the dry season; however, the system has historically been operated with a control elevation of 12' NGVD in the wet season and 13' in the dry season. WCPPUD was originally permitted with a wet season control elevation of 12' NGVD and a dry season control elevation of 13' NGVD. The Country Place pump station discharging into Peacock Pond was to begin operation when water elevations reached 13' NGVD and discontinue when the system was drawn down to elevation 12' NGVD. The operational elevations authorized in this staff report are consistent with those authorized in 1979 for Country Place. The 1978 permit also established a minimum road grade elevation of 16' NGVD and a finished floor elevation of 17' NGVD for Basin B. The 1979 permit for Country Place established the same minimum road grade and finished floor elevations. This correction accurately describes the 1978 permit for Basin B; it is not a substantive change. These and other possible changes to the Staff Report were drafted shortly before the final hearing in the form of an "Addendum to Staff Report." Petitioners contended that this denied them due process. However, this Addendum (which was not introduced into evidence) was presented to propose corrections to minor errors in the original Staff Report and to suggest appropriate ways to address issues raised by Petitioners during prehearing procedures in this case in order to help clarify the intention of the Staff Report for Petitioners' benefit. SFWMD offered to withdraw the latter Addendum proposals if Petitioners so wished; Petitioners declined to request that these proposals be withdrawn, but none are considered to be necessary. Other Contentions Raised By Petitioners Alleged Elimination of Petitioners' Water Treatment Facilities Petitioners contended in their Second Amended Petition that the modification will cause "33 acres of previously permitted and constructed water management facilities to no longer be considered toward meeting water quality treatment." But the 33 acres referenced by the Petitioners were never counted for water quality treatment in the previous permits. Additionally, as discussed above, they do not meet the minimal dimensional criteria or have not been encumbered for water quality purposes. See Finding 41, supra. The only surface water management facility which has a change in its permitted status for water quality treatment is Peacock Pond. Future Development is Not Precluded from Proposing Alternative Water Quality Treatment Petitioners expressed a concern that the proposed permit modification would bind future development to the Acme's design assumptions--specifically, the assumption that, in order to meet SFWMD's criteria for new development, future development projects would include 13 percent lakes. This concern seems to spring primarily from the following statement on page 3 of 21 of the Staff Report (SFWMD Exhibit 5): "This permit modification requires that applicants adhere to the stated surface water management system assumptions for all future development." Reading the Staff Report as a whole, it was reasonably clear that Acme's assumption was made only for purposes of its permit modification application and would not bind future developers in WCPPUD. Rather, future applicants may propose any alternative methods that comply with Chapter 40E-4, Florida Administrative Code, and the BOR to demonstrate compliance with water quality requirements. For example, the Staff Report states on page 13: Future Country Place applicants are not precluded from proposing alternative means of treatment which can be demonstrated to provide an equivalent level of treatment. Further, the assumptions do not preclude the SFWMD from requiring additional treatment measures as necessary from an applicant to provide reasonable assurance that future projects will not cause or contribute to existing water quality problems in Basin B. The testimony of SFWMD witnesses confirmed this reading of the Staff Report. There is no need to further modify the Staff Report to allay Petitioners' expressed concern. Canals/Lakes 12 and/or 13 Not Affected Petitioners' Second Amended Petition questioned whether Acme's canals/lakes 12 and 13, which border Peacock Pond on the north and in the northeast corner, are properly located within Acme's easements. But Acme's application proposes no modifications to those canals/lakes. Not only are canals/lakes 12 and 13 not the subject of this permit modification, Petitioners introduced no competent, substantial evidence demonstrating improper placement of those conveyance features. In an abundance of caution, SFWMD suggested adding the following Special Condition Number 14 to address this issue: If a final determination is made by a court of competent jurisdiction that Acme does not own, have an easement or otherwise have the right to utilize the area where canal/lake Number 12 and/or canal/lake Number 13 is located, then within 30 days of such determination, Acme shall file an application with the SFWMD to move the canal/lake Number 12 and or canal/lake Number 13 to an area which is determined to be owned by Acme or over which Acme has an easement, or modify the surface water management system to discontinue use of canal/lake Number 12 and or canal/lake Number 13. Inclusion of this language would confirm that, if a court makes a final determination that Acme does not have the right or access to utilize Canals/Lakes Number 12 and/or 13, Acme would be required to modify the permit. While adding the suggested language to the Staff Report is appropriate, it is not necessary; reasonable assurances have been provided without any additional language that the permit criteria have been satisfied. If canal/lakes 12 and 13 should ever become unusable, thus preventing a discharge of the eastern half of WCPPUD into the C-4 canal, the drainage system could be split so that the western half discharges into the C-4 canal and the eastern half into the C-6 canal. In that case, a minor modification would be required to lower the weir at structure 117 to 12’ NGVD and the permit is modified. Mr. Higgins performed calculations to demonstrate that such a minor modification would be permittable under applicable criteria.4 Wetlands in Pod F Not Adversely Affected The Staff Report includes reference to wetlands located in the southeast corner of Pod F of WCPPUD. (Pod F itself is in the southeast corner of Section 20.) Petitioners seemed to take issue with the Staff Report's description of these wetlands. They also disputed whether Acme provided reasonable assurance that these wetlands would not be adversely affected by the proposed modifications. Specifically, Polo expressed concern that the proposed modifications would undermine a plan it has to restore wetlands in Pod F for use as mitigation for an after-the-fact permit to be issued to resolve a SFWMD cease and desist order imposed on Polo for activities in an adjacent polo field, and perhaps also as mitigation for wetland impacts by Polo and other future developers in the area. In taking these positions, Petitioners criticized SFWMD for not presenting expert testimony from a biologist. The Staff Report states that "the 3.74-acres of cypress wetland contained within Pod F" are the only other wetlands in WCPPUD besides Peacock Pond. These wetlands were described as being "in poor biological condition." Petitioners argued that the testimony of their expert supported a finding that the wetlands in Pod F actually are approximately 25 acres in size. However, her actual testimony was that her proposed wetlands restoration project was 25 acres in size. Part of her proposed restoration project includes the "vertical relocation" of higher ground now infested with melaleuca and other nuisance and exotic species. In addition, she admitted that she had not delineated wetlands in Pod F using the methodology adopted for that purpose by the State of Florida; instead, she used methodology adopted by the United States Army Corps of Engineers was used. Not only are the two methodologies different, the Army Corps methodology includes wetlands not included under the State of Florida methodology. Finally, Petitioners' expert admitted that less than 4 acres of the 25 acres included in her project area consisted of "cypress heads." Taken as a whole, the evidence did not demonstrate a need to revise the Staff Report's description of the size of the wetlands in Pod F. As for the Staff Report's description of the Pod F wetlands' "poor biological condition," this is consistent with the testimony of Petitioners' expert. She testified that the wetlands' hydrology was deficient, especially on the northern half of the restoration project area, and that the tract is "highly infested with exotic vegetation," leading to the need for restoration. The hydrology is better on the southern half of the restoration project area, where the cypress trees are healthy; but the cypress trees on the northern half of the tract are under stress, with lots of old world climbing vines on them and other infestation of exotic vegetation, including melaleuca. On site visits, the expert saw "wading birds, snakes, signs of raccoon [and n]umerous bird species." No endangered or threatened species were said to be using the tract at this time. One purpose of the restoration project would be to create better wildlife habitat. Petitioners' expert testified that if water levels were lowered in the proposed restoration project area, there could be an adverse impact on existing and planned wetlands. However, Petitioners' expert did not have evidence or information indicating historic or current water levels. Petitioners' expert also did not know whether the permit modification will lower or have any affect on the water levels in that area. Petitioners introduced neither competent evidence of current groundwater levels under the proposed wetlands mitigation project, nor competent evidence as to how the permit modification might change those groundwater levels. Acme and SFWMD presented evidence that the water levels in the C-4 and C-23 canals, directly adjacent to Pod F, will not be changed significantly as a result of the permit modification; that the proposed permit modification will have no effect on the groundwater levels in this wetland area; and that, as a result, no wetland impacts will occur from the permit modifications. Petitioners did not rebut the Respondents' evidence. As a result, Acme has demonstrated that not only groundwater and surface water flows and levels but also the value of wetland functions in Pod F will not be adversely impacted, as required by Rule 40E-4.301(d) and (g), Florida Administrative Code. The evidence was that SFWMD biologists visited the Pod F wetlands and prepared a report which formed the basis of statements in the Staff Report about the absence of wetland impacts. Given the finding that groundwater levels in the Pod F will not change, the testimony of expert biologists was not necessary. Assumed Commercial Acreage Through the testimony of Michael Nelson, Petitioners questioned a purported statement in the Staff Report that there are 24.4 acres of commercial acreage in WCPPUD. According to Mr. Nelson, there actually are only five acres of commercially zoned property in the PUD. Mr. Nelson stated that this, along with other alleged errors, undermine his confidence in SFWMD's entire evaluation of the proposed permit modification. In fact, the Staff Report, at page 8, states that "the original permit application (in 1979) included only two land uses: 935.6 acres of single family use . . . and 24.4 acres of commercial area." There was no statement that 24.4 acres is zoned commercial today. Past Violations Petitioners also assert that the proposed permit modification should be denied because Acme has not strictly abided by applicable permits. But Acme's most significant past violation was the failure to operate Peacock Pond as required by the 1979 Permit. As reflected in Findings 21 and 23, supra, the primary purpose of this proposed modification is to resolve the enforcement proceedings that arose out of the Peacock Pond violation. Acme also has been one of thousands of SFWMD permit holders who have not certified construction of their systems in conformance with the applicable permits, which is required to transfer the permit into operational status. For many years, SFWMD did not monitor permits for certification and did not enforce failure to certify permits. When monitoring and enforcement was initiated in 1995, it was found that over 12,000 permits were in violation for failure to submit the required certifications. SFWMD prioritized the missing certifications and began methodical follow-up. When SFWMD raised the issue with Acme, Acme responded, and the outstanding violations are being resolved. SFWMD saw no need to initiate formal enforcement proceedings and has been treating the outstanding violations as a "non-compliance" issue since it is a paperwork problem, not an environmental resource problem. At this time, the modifications to structures 115 and 117 in accordance with the several emergency authorizations to address septic tank problems have been certified. However, as indicated, the 1979 Permit itself cannot be certified so long as the Peacock Pond pumped retention area is not in place and operational. It is found that Acme has sufficient financial, legal, and administrative capabilities to ensure that water management modifications will be undertaken in accordance with the terms and conditions of the modified permit. (Since Acme is now a dependent special district of the Village of Wellington, the Village of Wellington actually will be responsible for installation, operation, and maintenance of these structures.) Notwithstanding the past violations, reasonable assurances have been given that Acme will comply with the terms of its proposed permit modification. Propriety of Petitioners’ Purpose Acme has raised the issue whether Petitioners participated in this proceeding for an "improper purpose," i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity." § 120.595(1)(e)1, Fla. Stat. (2003). But it is found that, under the totality of circumstances, Petitioners' participation in this proceeding was not for an improper purpose, as defined by statute. Petitioners' participation in this proceeding has indeed needlessly increased Acme's cost of obtaining SFWMD's permit approval; but the evidence did not prove that this was Petitioners' primary purpose. It also is clear that Petitioners attempted to delay this proceeding through repeated requests for continuances (and other procedural and evidentiary objections) and that, while they usually based their requests for continuances in part on the alleged need for more time for more discovery, they failed to pick up voluminous copies of requested discovery documents and complained about how much money they had already spent on discovery. Nonetheless, it is found that Acme did not prove that Petitioners' primary purpose for participating in this proceeding was to delay the proceeding. It seems reasonably clear that, had Petitioners retained a competent expert engineer to evaluate its case, the expert probably would have advised Petitioners that they would not be able to successfully challenge SFWMD's proposed agency action. For that and other reasons, a reasonable person would not have raised and pursued some of the issues raised by Petitioners in this proceeding. But it cannot be found that all of the issues they raised were frivolous or that their participation in this proceeding was for an improper purpose.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
