The Issue As reflected in the parties' prehearing stipulation filed on August 28, 1991, the issue in this case is whether the St. Johns River Water Management District (SJRWMD) should approve South Brevard Water Authority's (SBWA) consumptive use permit (CUP) application. The SBWA is seeking permission to withdraw an annual average daily rate of 18.8 million gallons (mgd) and a maximum daily rate of 21.4 mgd. The District proposes to grant the permit with specified conditions. Petitioners challenge the issuance of the permit, alleging that applicable requirements of Chapter 373, F.S. and Chapter 40C-2, F.A.C. and other applicable law are not met. The standing of Petitioners, other than Osceola County, is at issue. Also at issue is whether the relevant criteria include consideration of the adequacy of existing sources of water, and the consideration of costs of utilizing existing sources versus the cost of the proposed new source of water.
Findings Of Fact The Parties The applicant, South Brevard Water Authority (SBWA) was created by special act of the legislature, Chapter 83-375, Laws of Florida. Its principal office is located in Melbourne, Brevard County, Florida. Its general mission is described in Section 1, of Chapter 83-375, Laws of Florida, as amended by Chapter 87-481, Laws of Florida: Section 1. It is hereby declared and determined by the Legislature that a regional water authority is the most responsive, efficient, and effective local government entity to secure, operate, and maintain an adequate, dependable, and safe water supply for the district and customers of the district. It is the intent of the Legislature that such regional water authority possess the full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution to meet the future quantity and quality needs of the district and for customers of the district. There is a paramount public need to develop a safe, reliable, and energy-efficient source of public water for the district residents and to contruct the wellfields, transmission lines, and other facilities necessary to supply such water. The St. Johns River Water Management District (SJRWMD or District) is an agency created pursuant to Chapter 373, F.S. in charge of regulating consumptive uses of water in a 19-county area of the State of Florida, including all of Brevard and part of Osceola County. The geographical boundaries of the District are described in Section 373.069(2)(c), F.S. Osceola County is a political subdivision of the state, west of, and contiguous to, south Brevard County. The Corporation of the President of the Church of Jesus Christ of Latter Day Saints (Deseret) is a Utah corporation authorized to conduct business in the State of Florida. Deseret owns real property in Osceola County to the north and east of the proposed wellfield. Deseret possesses a valid consumptive use permit authorizing the withdrawal of water for this property. East Central Florida Services (ECFS) does not own land or possess a consumptive use permit (CUP). Its purpose is to take over the water management program for the Deseret property. It has applied to the Public Service Commission for certification. Notwithstanding the parties' stipulation that "Triple E Corporation" and "Triple N Corporation" own real property in Osceola County near the proposed wellfield (prehearing stipulation, filed 8/28/91, p. 5), no such corporations are registered in the State of Florida. The lands identified as Triple E and Triple N are owned by multiple parties through trusts, primarily managed by Maury L. Carter, one of the owners. Neither Triple E nor Triple N properties have CUP's. The properties are used for agricultural purposes and the Triple N property has a well and recreational camp. The Site of the Proposed Use The proposed wellfield is located on property owned by the SJRWMD, the Bull Creek Wildlife Management Area (BCWMA), located entirely in eastern Osceola County. The BCWMA is comprised of 22,206 acres within the drainage area of the St. Johns River. The northern third of the management area is drained by Crabgrass Creek, and the southern two-thirds is drained by Bull Creek. The easternmost boundary is located approximately one mile from the Brevard County boundary. Currently all 22,206 acres of the BCWMA are under lease to the Florida Game and Fresh Water Fish Commission, which agency manages the area as a public recreation facility for hunting, fishing, hiking, horseback riding, camping and archeological studies. The sparsely populated area has historically been used for logging and cattle grazing. It was acquired for a detention area and it currently provides nonstructural flood protection. Its surface topography is relatively flat, with uplands and wetlands separated by only inches in vertical elevation. Upland communities include pine flatwoods, saw palmetto prairies, pine savannahs and sand oaks. Wetland communities include cypress domes, mixed shallow marshes, sawgrass marsh, wet prairies and transitional prairies. The BCWMA is classified as a "conservation area" in the District's current adopted Five Year Land Plan which summarizes the agency's land acquisition and management policies. A "conservation area" is defined as "...an area acquired for water resource conservation and protection in an environmentally-acceptable manner". The term includes water supply areas, including areas for public wellfield location. (Osceola Co. exhibit #33, p. 15) Facilities Associated with the Proposed Consumptive Use Although the precise siting of the wells has not been established, the wellfield will be located at the northern end of the BCWMA, east-west into a "panhandle" area, and extending south, for an inverted "L" shape. The wellfield will consist of 12 production wells in 2000 ft. intervals. Wells 1-9 will lie along an east-west axis adjacent to Crabgrass Creek, while wells 10-12 will lie along a north-south axis below well 9, the eastern-most well. The capacity of each well is designed at 3,000 gallons per minute or approximately 4.30 million gallons a day (mgd). Each well consists of 20" diameter casing pipe extending 700' below the ground surface. From there, an open hole for production will extend another 250 feet in depth. A small, 20 ft. by 30 ft., concrete building will enclose the motor and other equipment associated with each well, in order to eliminate vandalism and to baffle the noise. The wells will be sited to avoid jurisdictional wetlands. In addition to the production wells, monitoring wells will be constructed to comply with permit conditions. Because the water drawn from the proposed wellfield will exceed potable standards, reverse osmosis (RO) desalinization treatment is required. A below ground header pipeline will carry raw water from the wellfield to an RO treatment facility in Brevard County. The RO treatment facility will process 75 percent of water coming from the wellfield, 85 percent of which is recovered as finished water, and 15 percent of which is disposed of as brine by deep well injection. The 25 percent of raw water which bypasses the treatment process will be blended with the finished water to yield water which meets drinking water standards for chloride levels. The yield is anticipated to be 16.67 mgd on an average day and 18.9 mgd on a maximum day. However, the finished water yield could be higher if raw water quality permits greater blending and less reject water. On the finished water side, the water will need to be treated again to assure that it will be compatible with water from the City of Melbourne plant. Failure to balance the blended waters chemically could result in corrosion of pipes, leaching of pipes, discoloration, rusty water, and odorous water. A proper process, therefore, is essential and is highly sophisticated. From the treatment facility the water will travel in underground pipes, beneath the St. Johns River, beneath I-95 and east to the Melbourne distribution system. From there some water is anticipated to travel south to connect to the General Development Utilities (GDU) system. Hydrogeologic Characteristics of the Site For modelling purposes, the aquifer system in the region is represented by sequential layers of differing characteristics in the flow and movement of water. The SBWA model contains 6 layers; the Osceola model contains 7 layers. In both models, layer 1 corresponds to the surficial (water table) aquifer; layer 2 corresponds to the Hawthorn formation (the upper confirming layer); layer 3 is the Upper Floridan aquifer; layer 4 describes the 200 ft. thick portion of the Upper Floridan called the "production zone"; layer 5 in the SBWA model is approximately 450 ft. thick and is called a confining unit; Osceola's consultants consider this layer less permeable or semi-confirming; layer 6 is the lower Floridan; and layer 7 in the Osceola model is the bottom reaches of the lower Floridan. The surficial aquifer consists of sand and shell deposits and extends to a depth of approximately 100 feet below land surface. The surficial aquifer is capable of producing small to moderate amounts of water for domestic uses. The Hawthorn is an interbedded formation consisting of clay, limestone and phosphate. Due to its extremely low permeability, this layer restricts both the vertical and horizontal movement of water. The Hawthorn is thicker in Central Florida than in other portions of the state. At the BCWMA the thickness of the Hawthorn ranges from 240 feet in the area northwest of the management area to 80 feet in the southeastern portion of the management area. The upper Floridan Aquifer at the BCWMA, as characterized by the SBWA's consultant and based on site specific data, extends from the base of the Hawthorn to a depth of approximately 900 feet below land surface. That portion of the upper Floridan Aquifer between the bottom of the Hawthorn and 700 feet below land surface consists of fine grained limestone with relatively low permeability. This zone corresponds with layer 3 in the groundwater modeling done by the SBWA. The portion of the upper Floridan between the bottom of the Hawthorn and 700 feet below land surface is less capable of producing water than the portions below this level. That portion of the upper Floridan Aquifer between 700 feet and 900 feet of depth consists of hard dolomites. Dolomitic zones are the most productive zones of water within the Floridan in this part of the state because these formations contain solution fractures and cavities. This zone corresponds with layer 4 in the groundwater modeling done by the SBWA. Several researchers and modelers have suggested the existence of a zone, variously referred to as a semi-confining unit, a zone of lower permeability or a middle semi-confining unit, located between the upper and lower Floridan Aquifer. This area between 900 feet and 1350 feet below land surface consists largely of hard dolomites similar in nature to those in the zone immediately above it. This zone corresponds to layer 5 in the groundwater modeling done by SBWA. Previous regional modeling efforts have utilized model derived values to describe the middle semi-confining unit rather than site specific information showing the location, thickness or hydrogeological characteristics of the zone. Site specific data tends to confirm the lower permeability of this zone relative to the layers above and below it. Site specific data consists of a core sample, mineral content observed during the drilling of the test monitor well, and a Neumann-Witherspoon ratio analysis conducted during the aquifer performance test. The area between 1350 feet and 1450 feet below land surface also consists of dolomites but with greater permeability and greater transmissivity (the measure of an aquifer's ability to transmit water in a horizontal direction). This area corresponds to layer 6 in the groundwater modeling done by the SBWA. No site specific data exists beneath 1483 feet, representing the total depth of test well TM. Regional data does exist which characterizes the areas from 1500 feet below land surface to the bottom of the lower Floridan Aquifer as consisting of zones of varying lithology, and varying permeabilities. This zone which corresponds to layer 7 in the groundwater modeling done by Osceola County is not homogeneous or uniform over its entire thickness according to available regional data, consisting of geologic reports of deep wells in the east-central Florida area. All parties agree that in the area of the proposed wellfield, horizontal movement of water in the Floridan aquifer is from west, where the greatest recharge occurs along the Lake Wales Ridge, to east, where there is little or no recharge. Water quality in the upper Floridan as measured by chloride concentrations deteriorates as one moves from west to east. The Floridan aquifer beneath the BCWMA represents a transition zone between the recharge area to the west and high saline formation waters in the east. The dominant geochemical components in water beneath the BCWMA are biocarbonates. Water quality, as measured by chloride concentrations, also deteriorates with depth. Chloride concentrations, based on data derived from the drilling of well TM at the BCWMA, increase gradually from 306 milligrams per liter (mgl) at 410 feet, to 658 mgl at 1473 feet below land surface. Chloride concentrations increase abruptly to 1980 mgl in well TM at 1483 feet of depth. Evidence is inconclusive as to whether all of the proposed production wells will draw water exceeding 250 mgl in chloride concentrations. It is undisputed that most will, but chloride contours initially provided by SBWA's consultant indicate that the southernmost wells may produce water between 150 and 250 mgl. A comprehensive aquifer performance test (APT) was conducted at the BCWMA by the SBWA's consultant, Post, Buckley Schuh, and Jernigan, Inc. (PBSJ). The test was designed by the staff of the SJRWMD in consultation with the U.S. Geological Survey (USGS). This test yielded data which enabled PBSJ to calculate several aquifer characteristics for use in the groundwater modeling which was later done by SBWA's modeling consultant, Environmental Science and Engineering, Inc. (ESE). Eight wells were utilized in connection with the APT conducted at the BCWMA in January and February 1990. Three of the wells were dual zone monitoring wells capable of monitoring events in two different geologic units simultaneously. Three wells, including the test production well (TP) were open to the interval between 700 and 900 feet below land surface which was identified by the SBWA as the production zone. Typically APT's are run for 12 to 72 hours in Florida. Well TP was pumped for approximately 10 days at a rate equivalent to that expected during actual production while observations were made of water levels in all wells, including three off-site wells (the Holopaw test well, the Kempfer well and the Bruner well). All of the information the SBWA needed from the APT was obtained in the first hours of the test. Water levels in the area monitored during the APT ceased dropping due to pumpage within 1 hour after the pumping started. Three different analytical models were used to calculate a transmissivity value for the production zone, utilizing data derived during the APT. The result showed transmissivity in this zone to be approximately 2 million gallons per foot per day. This is a very high transmissivity value indicating a comparatively prolific aquifer, capable of producing the volumes of water requested in the application. As transmissivity increases, the cone of depression associated with pumpage tends to flatten out and be less steep. The cone of depression extends further out, creating a wider area of drawdown. Hydraulic conductivity is the measure of an aquifer's resistance to flow either in a vertical (KV) or horizontal (KH) direction. Two methods were used to calculate the hydraulic conductivity of the Hawthon Formation by PBSJ: laboratory analysis of a core sample taken from this unit, and a bail test (measuring an increase in water level over time) conducted on a well on site by the SJRWMD. Two different methods were used by PBSJ to calculate the hydraulic conductivity of layer 5: laboratory analysis of a core sample taken from that zone, and the Neuman-Witherspoon ratio analysis method. Porosity is the void space in porous media through which transport of particles, such as chlorides, can occur. Effective porosity has an impact on the ability of saline or dense water to move upward from depth toward a pumping well. The lower the effective porosity within an aquifer, the greater the potential for upconing of saline water within that aquifer. Effective porosity for layers 4 and 5 was calculated using two different methods, those being laboratory analysis of core samples taken from these zones, and analysis of acoustic logs generated during the APT. Each of these methods is accepted in the field of hydrogeology. Anticipated Impacts to Groundwater Levels and Flows as a Result of the Proposed Consumptive Use A numeric groundwater flow model is a computer code representing the groundwater flow process. Both SBWA and Osceola used numeric groundwater flow models developed by their consultants to predict and simulate the impacts associated with withdrawals proposed in the application. The SBWA used a finite difference model called INTERSAT for its simulations. INTERSAT is a widely used and accepted groundwater flow model. The model was run by ESE for the SBWA in the impact or drawdown mode. Drawdown or impact models simulate changes in water levels in response to a stress such as a pumping well. Drawdown models are an accepted and frequently used method to evaluate wellfield stress, particularly in association with a CUP application. ESE and PBSJ utilized several analytical models to first determine and later to verify the area to which the boundaries of their model would extend. The radius of influence of a well or wellfield is the distance from the center of pumpage extending out to where drawdowns caused by that pumpage reach zero. The boundary for a numeric groundwater model should be set at, or beyond, the radius of influence of the pumpage being simulated by the model. Based on the analytical models run by ESE and PBSJ the radius of influence of the wellfield proposed in the application is 43,000 to 45,000 feet. The approximate distances of the boundaries set in INTERSAT model from well TP were 50,000 feet to the east, 40,000 feet to the west, 40,000 feet to the north and 50,000 feet to the south. The INTERSAT model covers a total area of 320 square miles. This size falls somewhere between a regional model and a local model, and is adequate in size to address the impacts associated with the proposed withdrawals. The vertical boundary of SBWA's model extends to 1450 feet below land surface and, as stated above, is divided into 6 layers. The 1450 feet depth generally coincides with the limits of site specific data generated during the APT. The six layers in the SBWA flow model coincide with the six distinct geologic units identified by PBSJ in their APT report. The site specific data generated by the APT was utilized, along with other regional modeling studies, to arrive at a set of "conservative" aquifer parameters to be utilized in the INTERSAT model. "Conservative" parameters for purposes of this application are those which would tend to overpredict drawdown in the surficial aquifer and the production zone, while allowing for more upconing of dense water from the bottom of the model. The selection of "conservative" aquifer parameters by SBWA involved taking site specific values, comparing them with the ranges of values reported in the other available regional models and selecting values which, while still within the range of reported values used in other studies, would tend to show greater impacts for the areas of primary concern than the site specific values. Every aquifer parameter utilized in SBWA's groundwater flow model falls within the range of values reported in at least one of the groundwater modeling studies previously done in this region. The size of the grids utilized in the SBWA model were 500 feet by 500 feet within the vicinity of the wellfield. Grid sizes expand as one moves toward the outer boundaries of the model. The fineness of the grids used by ESE, particularly in the wellfield area, allows for accurate representation and resolution of surface water features, impacts in the production zone and for evaluating the effects of saltwater upcoming in the transport model also done by ESE. Within the radius of influence of the proposed wellfield, there are no existing wells in layers 5 or 6. The ESE model simulations for 18.8 mgd pumpage predict a maximum drawdown in the surficial aquifer (layer 1) of 0.14 feet centered primarily within the BCWMA. At a distance of 1 mile from the wellfield the impact drops to 0.12 feet. None of the existing legal users of water in layer 1 within the radius of influence of the proposed wellfield will suffer a ten percent or greater reduction in withdrawal capacity from their wells solely as a result of the proposed withdrawals, since 10 percent reduction would require at least 3 feet of drawdown. The ESE model simulations predict a maximum drawdown caused by the proposed pumpage of 4.5 feet in layer 3 centered along the alignment of wells and primarily within the BCWMA. At a distance of 2 miles, the drawdown drops to 2 feet. At the Brevard-Osceola County line the drawdown in layer 3 is approximately .5 feet. Petitioner Deseret's flowing wells are drilled in layer 3 and are located within the area where a drawdown of 1 foot is predicted in layer 3 by the ESE model. Deseret uses its property for a cow/calf ranching operation and has approximately 32,000 head of cows. Deseret uses 39 flowing wells east of state road 192 to irrigate pasture, water cattle and supply drinking water. Deseret possesses a valid CUP for a portion of the total flow capacity from those wells. Seasonally, the wells flow at different rates, but they are most relied upon in dry conditions when the natural flow would be decreased. It is unlikely that the proposed SBWA withdrawals will stop the flow of any of Deseret's wells; and it is unlikely that the flow will be reduced by more than 10 percent. Deseret and Osceola's consultants do predict a greater drawdown and opine that approximately 12 of Deseret's wells will cease flowing as a result of the SBWA withdraw As addressed below, the modelling by Petitioner's consultants, upon which those predictions are based, is less reliable than that of SBWA's consultants. If the effects are greater than predicted, mitigation in the form of installation of pumps is possible, albeit inconvenient and expensive. Mitigation would have to be provided by the applicant, SBWA. The drawdowns predicted by the ESE model for layer 4 are not significantly different from those for layer 3. It is anticipated that no legal user of water within the radius of influence of the proposed wellfield will suffer a 10 percent or greater reduction in withdrawal capacity for its wells, as a result of SBWA's proposed withdrawals. Petitioners' consultants, Hartman and Associates, (Hartman) modeled a significantly larger (4900 square miles) and deeper (3000 feet) area than did SBWA. The model makes its predictions based on one data point for every 49 square miles within the modeled area. Petitioners utilized much larger model grids in the wellfield area (2000 feet by 2000 feet) than did the SBWA. Grid of this size lacks the resolution necessary to evaluate wellfield impacts. Petitioners selected their aquifer parameters from another regional modeling study done in 1985 rather than using site specific data. Those parameters were then adjusted or calibrated until a match was obtained to a computer created potentiometric surface which was supposed to reflect the potentiometric surface for May 1990, an uncharacteristically dry period. The created potentiometric surface to which Hartman calibrated its model varies greatly from the potentiometric surface as reflected in the actual data points from which USGS derives its potentiometric surface maps. While no model is perfect, and actual data is preferable, in the absence of all the actual data that is needed, the ESE model is a more credible predictor of drawdowns. Anticipated Impacts to Groundwater Quality as a Result of the Proposed Consumptive Use Solute transport models are computer models designed to simulate the movement of mass, in this case -- chlorides -- through a groundwater flow system. These models are linked to, and are dependent on flow fields generated by groundwater flow models. In order to predict changes in water quality anticipated to occur as a result of its proposed withdrawals, SBWA's consultants used a solute transport model called HST3D. Developed by the USGS, this model is widely used and accepted. For simulations using the HST3D model, SBWA used the flow field and a portion of the grid generated by its INTERSAT groundwater flow model. The HST3D simulations run by ESE utilized a cross section of the INTERSAT model grid extending through row 26 of that grid, which is the row containing the line of 9 proposed wells running on an east-west axis. Use of a cross sectional grid is an appropriate method by which to examine salt water intrusion. Upconing, to the extent that it will occur as a result of the proposed pumpage, would be greatest within the cross section containing the 9 wells. The cross section extends two miles through the wellfield to the west. As chloride concentrations in water increase, the density of the water increases. Density can retard the degree of upconing when chloride concentrations are as low as 1000-2000 parts per million and becomes significant at 3000-5000 parts per million. Failure of a model to consider density effects, when appropriate, would tend to overstate upconing. HST3D does consider density effects. SBWA's consultant ran several simulations with the HST3D model to predict changes that would occur as a result of the proposed pumpage in chloride concentrations over 7, 14 and 30 year time periods. These simulations utilized the same aquifer parameters as the INTERSAT model together with the effective porosity values derived from site specific data. Assuming a starting chloride concentration of 1000 mgl at the bottom of layer 5, the measured concentration at that level in well TM on the BCWMA site, after 30 years of pumpage at 18.8 mgd, the chloride concentrations in layer 4 would increase by only 100 mgl. The simulations for 7 years of pumpage which is the duration of the proposed permit, show that the predicted increase in chloride levels would be substantially less than 100 mgl. Other HST3D simulations were run by SBWA for a pumpage rate of 35 mgd utilizing beginning chloride concentrations of 5,000 mgl and 10,000 mgl, respectively at the bottom of layers. The results did not show any significant changes in chloride concentrations in layer 4 over and above those shown when a lower starting chloride concentration was assumed. In a circumstance where, as here, the chloride concentrations in the zone from which water is proposed to be withdrawn exceeds secondary drinking water standards (250 mgl), the SJRWMD evaluates the existing legal water uses within the area that would be impacted by the proposed use. If it is determined that the increase in chloride concentrations caused by a proposed use would detrimentally affect other existing legal users or the applicant, only then is the increase deemed to be "significant". Within the layers of the aquifer which would experience increases in chloride concentrations as a result of the proposed withdrawal, layers 4, 5 and 6, no existing users of water would be detrimentally affected. Petitioner Deseret's closest wells to the proposed wellfield are in layer 3 where chloride levels will not be affected by the proposed wellfield within the 7 year duration of the proposed permit or even beyond that period. Further, the use Deseret makes of the water from the wells in closest proximity to the proposed wellfield, pasture irrigation, can tolerate significantly higher chloride concentrations than will exist even directly beneath the wellfield in level 4 after 30 years of pumping. Use of water for public supply purposes is considered by SJRWMD to be in the public interest. Utilization of the water beneath BCWMA for public supply purposes, even with some increase in chloride concentrations in the source of the water over the life of the permit, does not on balance detrimentally affect the public interest. Two different solute transport models were done by Petitioners' consultants, one a numeric model and the other an analytical model. The numeric model done by Hartman, RANDOMWALK, does not predict changes in chloride concentrations within an aquifer, but rather tracks movement of particles. RANDOMWALK does not account for density effects. The analytical model done by Prickett for the Petitioners relies on assumptions, many of which are not met in the aquifer system at BCWMA. Those assumptions relate to uniformity of the system, for example: porosity and permeabilities, and lack of regional gradients. The solute transport models utilized by the Petitioners are less reliable for predicting water quality changes resulting from the proposed pumpage than the model utilized by the SBWA. Salt water intrusion is a dramatic increase of chloride levels in an aquifer layer. The saline water encroachment which occurs from the wellfield stress will be in the lower confining unit. There will be limited degradation in the lower part of the production zone. The wellfield will not induce significant lateral intrusion from the east. There will not be any dramatic changes in chlorides. The movement of the chlorides is confined to the locality of the wellfield. Most of the movement is vertical and is of limited increase. The proposed Bull Creek withdrawals will not aggravate any currently existing salt water intrusion problems. The reject brine water from the RO treatment plant will be disposed of in deep injection wells in Brevard County. These injection wells would deposit the brine into a receiving body of water in the Oldsmar geologic formation. The brine reject will have a total dissolved solids (TDS) concentration of approximately 7,000 mgl. The receiving water into which the brine will be injected approximates sea water, with TDS concentrations in the range of 36,000 mgl. The receiving body will obviously not be further degraded. Environmental Impacts of the Proposed Consumptive Use District staff, SBWA consultants and Osceola's consultants independently conducted onsite field investigations of the BCWMA to evaluate the vegetative communities and land uses which exist on site. Each consultant prepared a habitat map identifying the various vegetative communities found at the site. While relatively pristine, the BCWMA has been logged and grazed by cattle in the past. The impacts of man's activities have been remediated by ceasing the activity. There are few permanent incursions, such as roads, canals and buildings. The area is a very diverse landscape, with a mosaic of different types of plant communities. There are various upland and wetland habitats. The variety of wetlands are forested and non-forested, deep and shallow, open and closed. These wetlands perform important functions, including water storage and purification, aquifer recharge, flood control, and provision of food sources and habitat for wildlife, and they are "factories" for producing the materials needed by many higher organisms. The wetlands on site are structurally complex and are good habitat for macro- invertebrates and the fish and higher organisms that feed on them. A number of these wetlands are shallow, isolated wetlands. During periods of inundation, when the wetlands fill up with water and interconnect with the Bull Creek drainage system, the system exports various organisms to the wetlands. Fish that are live bearers move into isolated wetlands during periods of inundation, and they and their offspring become a source of food for birds. Fish species that lay eggs can withstand desiccation (total drying out) can survive the temporary drying of wetlands, but live bearers must repopulate during periods of inundation. The mixed wetland hardwoods on site contain a diversity of bugs, crawfish, mayflies, damsel flies, midges, and snails. Some of these are important food sources for higher organisms. The apple snail, for example, is an important food source for such birds as the limpkin and the endangered snail kite, and its eggs are food for crawfish and other organisms. The biological communities that exist in the wetlands and uplands at the site are determined by a number of factors, including the depth and duration of the hydroperiod, soils, climate, temperature, and availability of sunlight. These communities and their habitats will react to changes in light, water, temperature, and many other subtle effects, causing changes in plant diversity and structure, the areal extent of certain types of habitats and wetlands, and utilization by wildlife. Natural fluctuations in the hydroperiod also cause these changes, generally from the exterior edges of a wetland to the interior. The wetlands in the BCWMA have been able to withstand the natural drought and flood periods, or they wouldn't be there today. Periodic burning is essential to the health of ecosystems such as in the Bull Creek area. Fires reduce the prevalence of species less tolerant to fire, allow other species to strengthen their presence, return organic material to the soil, and reduce the fuel available for wild fires. Originally occurring naturally as a result of lightening strikes, prescribed burns are now undertaken by agencies such as the Division of Forestry and the Game and Fresh Water Fish Commission to replicate the beneficial functions of natural periodic burning. Fire management is used as a land management technique at BCWMA and continued fire management at the BCWMA will maintain a natural ecological setting typical of Florida. Slight variations in elevation which mark the difference between wetlands and uplands can result in utilization of the areas by different animal communities. Where different types of plant communities meet, an "ecotone" is created. Where an ecotone exists, the "edge effect" of the competition between the two communities occurs. The result of the edge effect is higher plant and animal species diversity, which is extremely important to the natural community. Some animals make specific use of the ecotone for habitat and food resources. Many amphibians, frogs in particular, live in the ecotone. Some birds will not roost in the upland forests but will roost in the edge of the forest adjacent to wetlands. Wetlands in the BCWMA are connected to the remainder of the Bull Creek system through groundwater resources. Their biological and ecological communities are also connected as the same organisms move throughout the system. Isolated wetlands also exhibit a "moving edge" effect, where changes in the surface water and water table levels cause different plants, or plants at different levels of maturity, to exist in the wetland and its perimeter. This increases the productivity of the wetland by making it attractive to a wider variety of plant and animal species. If the expansion and contraction of isolated wetlands is reduced by lowered water levels, the smaller wetlands would exhibit a reduced edge effect, and the cumulative effect of this reduction over time would disrupt the functioning of the wetland-upland system. Isolated wetland systems are more sensitive to drawdowns in the surficial aquifer than connected wetland systems because the drainage area contributing water to the wetland system is smaller. Isolated herbaceous wetland communities are the most sensitive of the vegetative communities on BCWMA to drawdowns in the surficial aquifer. The surficial aquifer fluctuates naturally as much as five feet annually. Rainfall is the primary source of water for the surficial aquifer. Water levels in the surficial aquifer respond very quickly to rainfall events. Hydroperiods of the wetland systems in the BCWMA respond to rainfall and surficial aquifer levels. The wetland hydroperiods vary from year to year, and wetland ecosystems have adopted to those annual changes. But a groundwater withdrawal from the surficial aquifer in the Bull Creek area would cause a corresponding lowering of the surface water level, since the wetlands are not "perched", or separated from the aquifer by a confining layer. A drawdown would lower water levels throughout the hydroperiod, under both high water and low water conditions, with a more pronounced effect during the dry season and drought periods. Some of the over twenty threatened and endangered plant species present at Bull Creek grow in shallow, marginally wet areas. Changes in even a few inches of groundwater would cause these plant species to be retarded in growth, and their abundance would decrease or they would die out at the site. Many of the wetlands are shallow, broad, sloping areas, and groundwater elevation changes of just a few inches will cause changes in the areal extent of these wetlands. Even the .14 foot drawdown predicted by SBWA's modeling would affect shallow inundated or saturated systems by changing the moisture level at the surface, particularly by affecting the lowest water levels. Changes in the vegetative composition of wetlands will affect the macro-invertebrate characteristics of a site. For example, as water levels change, the density of the vegetation (in terms of number of plant stems per acre) can decrease, leaving fewer places for the macro-invertebrates to hide, and the populations of macro-invertebrates will decrease through predation. As food sources, habitat and breeding grounds decrease, those animal species that can relocate will attempt to do so. Relocation can adversely affect the survival of the species; for example, a wood stork unable to find a particular food upon which it is dependent at a particular interval in its life cycle may abandon its nest and its young. Animals that attempt to relocate may find that there is not a suitable similar habitat available, making their attempt to adjust to the change in their environment unsuccessful. The proposed use will not significantly affect the stages or vegetation of the upland communities at the BCWMA because they are not as dependent on saturation or inundation as a wetland community. Forested wetland systems, be they isolated or connected, will not be influenced by a drawdown of the magnitude predicted by SBWA for the surficial aquifer. Forested systems have deep root zones and the canopy provides shading to the strata below. Forested systems are able to tolerate natural changes in hydrology. The SBWA assessment does not offer any detailed cataloguing of the plant and animal communities on site, or a description of how the systems operate or interface with each other. It does not provide sufficient information to be able to assess the impacts of the proposed wellfield on these systems. There was insufficient information presented by the applicant to conclude that the environmental harm to be caused by operation of a wellfield at the BCWMA has been reduced to an acceptable level. The applicant relied on the fact that drawdowns in the surficial aquifer will be minimal, without fully considering the impact of those minimal drawdowns on a fragile wetland ecosystem during a dry period. Water Demand The SBWA was created by special act in 1983 as a dependent special district for the purpose of developing regional water supplies and transmission of water to water distribution systems. In its existence so far, its labors have been in the former, and none in the latter category. Efforts to develop a regional water supply have been frustrated by litigation, by reluctance of local public systems to give up their authority and by delays in pursuing and processing CUP applications, two of which are still pending, in addition to the instant application. The City of Melbourne's public water system provides water to Melbourne, Palm Bay and West Melbourne, and to some unincorporated areas surrounding Melbourne. It also supplies water to the area called south beaches, comprised of the Brevard County area south of Patrick Air Force Base, including Satellite Beach, Melbourne Beach, Indiatlantic and Indian Harbor Beach. The current water supply is Lake Washington, which is part of the chain of lakes on the St. Johns River. The city of Melbourne was granted a CUP on January 15, 1991, for withdrawals from Lake Washington, ranging from 27.15 million gallons maximum daily withdrawals in 1991 to 21.7 million gallons maximum daily withdrawals in 1998. In addition, Melbourne has planned a new facility and has the CUP to withdraw 8.13 million gallons a day from the Floridan Aquifer commencing in 1993. After reverse osmosis treatment, the groundwater withdrawal will yield 6.5 million gallons a day finished water, making up the difference from reduced withdrawals from Lake Washington. Approximately 56 potable water systems have been identified by SBWA in South Brevard, south of the Pineda Causeway. Almost all are small private systems. Besides Melbourne, the other major water supplier in the area is General Development Utilities (GDU), serving the City of Palm Bay. GDU's CUP expires in 1993 with an average daily withdrawal of 6.5 mgd and maximum daily withdrawal of 8.5 mgd. It has ample capacity until 1996, and beyond to the year 2000, if an additional Department of Environmental Regulation capacity rating is obtained. The total capacity of the two major existing facilities is approximately 30 mgd and total existing consumptive use quantities (including existing CUPs with expiration dates varying from 1993 to 1998) approach 40 mgd. The current SBWA water master plan assumes that existing sources need replacing. More specifically, SBWA, if this CUP is granted, seeks to replace Lake Washington as the primary source of water in the area with the groundwater obtained from the BCWMA wellfield. An agreement between the City of Melbourne and SBWA provides that the City will initially purchase 8 mgd, plus all future needs of water from the SBWA. This 8 mgd would be used by Melbourne prior to using its 6.5 mgd finished water from the RO facility, and the RO water would be used prior to withdrawals from Lake Washington. The agreement, dated January 9, 1991, acknowledges the need for, and specifically authorizes improvements to Melbourne's Lake Washington Water Treatment Plant, including the conversion of the existing high service pumping station to a low service pumping station with average daily capacity of 20 mgd and maximum capacity of 25 mgd. (SBWA Ex. 49) GDU is a private utility and currently is outside the jurisdiction of the SBWA. General Development Corporation is in receivership and the City of Palm Bay is negotiating for purchase of the utility. If the purchase is successful, the supply will become publicly owned and subject to the jurisdiction of the SBWA. The City of Palm Bay is not bound to purchase GDU at any price, and the requirement that it would shut down its newly purchased facility to receive water from SBWA is a disincentive to the acquisition. In the meantime, GDU has no incentive to reduce CUP capacity and devalue its facility. GDU's service has been uninterrupted and reliable. Contamination to the surface aquifer utilized by GDU has been successfully treated. Although septic tanks proliferate in Palm Bay, their location, as well as the presence of confining layers in the surficial aquifer, reduce the susceptibility of GDU wells to contamination from septic tanks. The applicant's concerns about unreliability and safety of Lake Washington as a continued water source are unsubstantiated by the weight of evidence in this proceeding. Surface water facilities have been used in Florida since before the turn of the century and no major facility has ever been off-line one day due to raw water contamination. Nor has any major Florida surface water plant ever been sabotaged. There is a greater chance in Florida of problems with pipeline failures, and the miles of pipes planned to transmit ground water from Bull Creek east to SBWA consumers increase the chances of those problems. Recently, the SJRWMD Upper Basin Project has significantly improved the water quality and quantity in Lake Washington through restoration of marshlands in the upper basin and capping flowing wells. Restored marsh areas will allow for additional removal of nutrients and provide an additional storage to the Lake Washington/Upper Basin system, significantly improving safe yield quantities. Comparisons of concentrations of raw water chlorides and total dissolved solids for the drought years of 1989 and 1990, show significant reductions for the latter time frame. Recent evaluations indicate that Lake Washington would be acceptable in terms of chlorides and TDS concentrations for a 35 mgd withdrawal, even during 50 and 100 year droughts. Water quality improvements to Lake Washington can be directly related to the Upper Basin project. Trihalomethanes are regulated by the Safe Drinking Water Act. They are produced by the disinfection process of treating raw water with chlorines, and they are carcinogenic. A previously experienced problem at the Melbourne plant has been corrected with operational changes. As recently as 1988, an internal staff report by SJRWMD staff provided: Lake Washington has been a reliable source of public water supply since 1960 and can remain so in the future with the continuation of sound basin planning and watershed management by the St. John's river Water Management District. The quality of the raw water from Lake Washington is subject to annual and seasonal variations that make the treatment process more difficult, and the quality of the delivered water less consistent, than would be the case with a groundwater supply. A supplemental water source near Lake Washington would improve the quality of the water delivered to the users, would increase the total volume that could be taken from the lake in times of stress, and would provide a reliable alternative in case of emergency. The upper zone of the Floridan Aquifer within south Brevard County has the potential to supply a significant portion of the area's future water needs with existing low-pressure, reverse osmosis technology at a cost that is comparable to current supplies.
Recommendation Based on the foregoing, it is hereby, recommended that the SBWA application for CUP be denied. RECOMMENDED this 12th day of March, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-1779, 91-1780, & 91-1781 The following constitute disposition of the findings of fact proposed by each party. Petitioner, Osceola County These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-5, 7-8, 14, 21-22, 24-25, 27-28, 30, 32, 35, 62-65, 73, 104, 113, 116-125, 127, 129-130, 132-138, 140, 154, 157-158, 164, 167-168, 183, 186, 189, 191-195, 197-200, 202-204, 209, 212. These findings are rejected as contrary to or unsupported by the weight of evidence: 37-38, 48, 51, 53, 56, 66, 79-81, 84-90, 92-94, 102-103, 105-107, 110-112, 115, 128, 171-172, 212(d), (f) and (g), 213-214. These findings are rejected as cumulative, unnecessary or irrelevant: 6, 9- 13, 15-20, 23, 26, 29, 31, 33-34, 36, 39-47, 49-50, 52, 54-55, 57-61, 67-72, 74- 78, 82-83, 91, 95-101, 108-109, 114, 126, 131, 139, 141-153, 155-156, 159-163, 165-166, 169-170, 173-182, 184-185, 190, 196, 201, 205-208, 210-211, 212(e), 215. Petitioners, Triple E, Triple N, East Central Florida Services, Inc., and Deseret These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 8-9, 16-20, 22-25, 27-28, 30-31, 50- 56, 59-60. These findings are rejected as contrary to or unsupported by the weight of evidence: 7, 12, 32, 34-37, 40, 42, 44, 48, 49, 58. These findings are rejected as cumulative, unnecessary or irrelevant: 10- 11, 13-15, 21, 26, 29, 33, 38-39, 41, 43, 45-47, 57, 61-63. Respondent, South Brevard Water Authority These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-6, 9-11, 13, 16-24, 28, 30-34, 36, 38, 46-48, 61, 64, 70, 72-74, 90-91, 94-98, 105-108, 110-111, 113, 115-116, 121, 126-129, 133, 149, 152, 157, 169, 179, 181-190, 192-194. These findings are rejected as contrary to or unsupported by the weight of evidence: 41, 130-132, 156, 158, 167, 174, 177. These findings are rejected as cumulative, unnecessary or irrelevant: 7-8, 12, 14-15, 25-27, 29, 35, 37, 39-40, 42-45, 49-60, 62-63, 65-69, 71, 75-89, 92- 93, 100-104, 109, 112, 114, 117-120, 122-125, 134-148, 150-151, 153-155, 159- 166, 168, 170-173, 175-176, 178, 180, 191. Respondent, St. Johns River Water Management District These findings have been adopted in full or in substantial part in the recommended order submitted herewith: 1-8, 10-22, 24-36, 38-44, 47-62, 64-88, 90, 92-116, 118-122, 124-130, 132-142, 144-151, 159-160, 164, 166-167, 169, 171, 174-175, 177, 193-196, 198, 202, 206. These findings are rejected as contrary to or unsupported by the weight of evidence: 131 (the conclusion), 153-154, 156-157, 161-162, 197, 204, 207. These findings are rejected as cumulative, unnecessary or irrelevant: 9, 23, 37, 45-46, 63, 89, 91, 117, 123, 143, 150, 152, 155, 158, 163, 165, 168, 170, 172-173, 176, 178-192, 199-201, 203, 208-210. COPIES FURNISHED: Segundo J. Fernandez, Esquire Scott Shirley, Esquire OERTEL, HOFFMAN, FERNANDEZ & COLE, P.A. Post Office Box 6507 Tallahassee, FL 32314-6507 Douglas P. Manson, Esquire BLAIN & CONE, P.A. 202 Madison Street Tampa, FL 33602 Clifton A. McClelland, Esquire POTTER, McCLELLAND, MARKS & HEALY, P.A. Post Office Box 2523 Melbourne, FL 32902-2523 Wayne Flowers, Esquire Nancy B. Barnard, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Neal D. Bowen, County Attorney Osceola County Room 117 17 South Vernon Avenue Kissimmee, FL 32741 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Pal-Mar is a water management district operating pursuant to Chapter 298, Florida Statutes, in Martin and Palm Beach Counties, Florida. Pal-Mar has proposed to construct a drainage system serving approximately 22,500 acres of land of which approximately 18,000 acres are located in Martin County. There are five (5) proposed phases of construction required to complete the drainage system. Four (4) of these phases, I, II, IV and V, are considered by Pal-Mar to constitute a closed system as defined in Section 373.403(6), Florida Statutes. There is no connection between phase III and the rest of the system. During mid 1976, Pal-Mar filed an application with SFWMD for a surface water management permit for Pal-Mar's water management plan for phase III. It was stated therein that Pal-Mar considered phases I, II, IV and V to be a closed system and exempt from the permitting requirement of Part IV, Chapter 373, Florida Statutes. At its regular monthly meeting of October 7, 1976, the governing board of SFWMD considered the status of phases I, II, IV and V of the Pal-Mar plan. A motion to declare phases I, II, IV and V not a closed system failed. No other motion was made concerning the system. At its annual landowners meeting of June 16, 1977, the president of Pal-Mar's Board of Supervisors indicated that Pal-Mar had received a "tentative declaration" that phases I, II, IV and V constitute a closed system. On September 2, 1977, Martin County initiated the instant proceeding. Phases I, II and V of the propose drainage system are separated from phase IV by State Road 711. The section of State Road 711 in Martin County is maintained by Martin County and Martin County owns a 200 foot easement for the State road. The southern portion of State Road 711 within the drainage system runs through Palm Beach County. The Jupiter Grade Road passes through the center of the proposed drainage system's reservoir in an east/west direction. Litigation is presently pending between Pal-Mar and Martin County as to the ownership of the Jupiter Grade Road. Pal-Mar has acquired no easements or other legal use of the Jupiter Grade Road from Martin County nor has Pal-Mar obtained from Martin County any form of easement or license to cross State Road 711 for purposes of implementing the drainage system. As part of its plan, Pal-Mar intends to acquire from either Martin County or Palm Beach County such control of or access to State Roads 711 and its appurtenant easement as is necessary to implement the drainage system plan. As to the Jupiter Grade, Pal-Mar intends to either provide a two part reservoir with containment levees to protect the Jupiter Grade, to seek requisite ownership or control of the Jupiter Grade from Martin County or to voluntarily relocate the Jupiter Grade as part of its proposed project. Finally, the project will require a joint levee east of phase IV, 500 feet north of State Road 706. Pal-Mar intends as part of its plan to obtain necessary easements for construction of the joint levee. The proposed system requires no water for filling, replenishing and maintaining its water level and indeed requires no water at all.
Recommendation For the foregoing reasons, it is recommended that South Florida Water Management District enter its declaratory statement declaring that the Pal-Mar Water Management District plan is a closed system as that term is defined in Section 373.403(6), Florida Statutes. DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida. MICHAEL R. N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1978.
The Issue Whether Petitioner should take enforcement action against Respondent for alleged violations of Chapter 403, F.S., and Chapter 17, F.A.C., as set forth in Notice of Violation and Orders for Corrective Action, dated September 4, 1978.
Findings Of Fact Respondent Deseret Ranches of Florida, Inc., (Deseret), a wholly owned subsidiary of the Church of Jesus Christ of Latter Day Saints, conducts agricultural and ranching operations on approximately 283,000 acres of land owned by the Church which is located in parts of Orange, Osceola, and Brevard Counties. Over 80 percent of the acreage consists of unimproved and semi- improved pasture or range land, and the remainder is utilized for production of sod, clover, and citrus. Citrus production involves the use of 1800 acres. An average cattle herd of 44,500 head is maintained on the pastureland with an average density of 5.4 acres per head. Some 104,000 acres consists of lowlands which are subjected to periodic flooding. This land is located a short distance to the west of the St. Johns River and over 60,000 acres are channelized with canals, ditches, and dikes to improve drainage in order that the pastureland will remain relatively dry in periods of excessive rainfall. To prevent water in the interior canals from flooding the land, pumping stations are located at a number of points which periodically discharge water from the interior canals into larger canals which flow into the St. Johns River. Both diesel and electrically operated pumps are used for this purpose. There are also canals which discharge by gravity flow to the St. Johns River. Deseret Ranch is divided into north and south areas that are separated by land owned by others. The northern portion is bordered on the east by the North Mormon Outside Canal which parallels the St. Johns River. The southern portion is bordered on the east by the South Mormon Canal which also parallels the St. Johns River. The Bulldozer Canal forms the northern border of the southern portion of the ranch. The latter two canals meet at the northeastern corner of the southern area at the St. Johns River. The ranch has a number of artesian wells which are used primarily for providing water for stock and for agricultural irrigation during dry periods of the year. The St. Johns River Water Management District has authorized an annual allocation of 2522 million gallons of ground water per year for these purposes. (Testimony of Dahl, Petitioner's Exhibits 26, 27, 35, Respondent's Exhibit 1) On January 7, 1976, a Department of Environmental Regulation (DER) biologist observed turbidity at the southern end of Lake Hellen Blazes which is in the St. Johns River near the confluence of the Bulldozer and South Mormon Canals. He determined that a Deseret operating pump discharging into Bulldozer Canal was the cause of the turbid water. Water samples taken at various points upstream and downstream from the discharge were analyzed and showed violations of state water quality standards relating to turbidity. DER thereafter advised Respondent to apply for a temporary operating permit for the discharges from the ranch, but it declined to so. At informal meetings during 1976, Respondent explained that the turbidity problem had arisen during a time when interior canals were being cleaned and it was necessary for the pump to be placed into operation to move out the water in order that a dragline operator could accomplish the cleaning task. Respondent agreed at these meetings not to operate its pumps in the future when cleaning canals and there have been no observable turbidity violations since that time. (Testimony of Cormier, Dahl, Hulbert, Petitioner's Exhibits 1, 2, 31, 32-34, Respondent's Exhibit 6) On July 25, 1978, a fish kill in the vicinity of Camp Holly near U.S. Highway 192 was reported to DER personnel. Camp Holly is a fish camp located approximately eight to ten miles north of Bulldozer Canal on the St. Johns River. About 30 dead fish were observed around Camp Holly and several more between that location and Bulldozer Canal. Investigation disclosed that pumps at two stations on the Bulldozer Canal were in operation on that day, and water samples taken upstream and downstream of the operating pumps showed dissolved oxygen levels ranging from 1.8 mgs to 2.8 mgs per liter. A dragline was observed in an interior canal on the Deseret Ranch, but it is unknown if it was then in operation. The St. Johns River was high in 1978. (Testimony of Hadley, Cataldo, Auth, Petitioner's Exhibits 3, 4, 4A, 25, Respondent's Exhibit 5) The flood plain of the St. Johns River South of Lake Washington has decreased significantly over the years due, in part, to the fact that large areas are now behind dikes in order that the land may be used for various agricultural purposes. To maintain low water levels in these reclaimed areas, extensive canal and pumping systems have been installed to remove excess water. Conversion of an area from natural conditions to agricultural use increases pollutant loading of receiving waters from the use of fertilizer and pesticides. Disturbances of the land surface by removal of natural cover and modifications of natural drainage patterns reduce the detention time of storm water flow to the St. Johns River and the natural assimilative or purification processes of the original system. (Testimony of Sullivan, Cox, Petitioner's Exhibit 24) Water quality parameters that could potentially be influenced by the pumping activities of Respondent include turbidity, dissolved oxygen, biological oxygen demand (BOD) , specific conductance, chlorides, total phosphorus and total nitrogen. Available data concerning water quality in the upper St. Johns River include bimonthly water sampling by personnel of the Florida (came and Fresh Water Fish Commission from 1973 to 1976 at 24 stations, irregular sampling by DER personnel from 1975 to 1978 primarily in the Blue Cypress Lake region, and sampling in the summer of 1978 and in January, 1979 by DER and a consulting firm employed by Respondent. The collective data obtained show that the waters in the upper St. Johns River do not consistently meet state water quality standards in various respects and that the most serious deficiency is low dissolved oxygen concentrations. The data show a general downstream trend of increasing specific conductance with seasonal fluctuations due to dilution during the summer rainfall season. Conductivity increases are generally attributable to inputs of mineralized ground water, some of which occurs from irrigation wells. The specific conductance levels in the upper St. Johns regularly exceed the Class I standard of 500 micromhos per centimeter. Although Respondent has over 170 artesian wells under state permits, the wells are only used when irrigation water is necessary and are capped and controlled by valves at other times. Although specific conductance has been shown to increase beyond state standards in "Respondent's canals, primarily during the dry winter season, it is basically a ground water problem and is not considered by Petitioner and other state monitoring authorities to constitute a serious situation. Chloride levels generally increase in the area of Respondent's exterior canals during the summer, but they are almost always below the Class I water quality standard of 250 mgs per liter. Phosphorus concentrations increase somewhat as the river passes the confluence with the North Mormon Outside Canal, but the average total phosphorus concentration in the canal is essentially the same as that in the river upstream of the canal confluence. As to nitrogen concentrations, the data show that there is no pattern of increased concentrations arising from Respondent's canal discharges. Turbidity has not been shown to be a problem since Respondent discontinued pumping during dragline operations. BOD values have not been shown to be sufficiently high as to constitute a water quality problem. (Testimony of Cox, Shannon, Hulbert, Auth, Petitioner's Exhibits 8, 9, 11, 16, 18, 19, 24, 26, 27-29) It is generally agreed by water quality experts that low dissolved oxygen levels are natural to the upper St. Johns River, particularly during periods of high rainfall during the summer and fall. Agricultural activities in the St. Johns River basin contribute to oxygen depletion by the nutrient load that is pumped into the receiving waters after having remained in interior canals for varied periods of time during the dry season. Highly mineralized artesian well water which has migrated to canals, collected plant debris, fertilizer, and cattle waste all serve to depress oxygen values when discharged into the river system. Aquatic plants, such as hyacinths, tend to proliferate in stagnant canals during the dry season and are released into the river during pumping operations. They accumulate in the river lakes where spraying operations by the St. Johns River Water Management District cause decomposition of the plant material which also serves to reduce the oxygen supply. This, in turn, is detrimental to the fish habitat and has caused fish kills in extreme situations. Studies have shown that the population of fish in the river has decreased over the years due to the degradation of water quality and limited access to spawning and grazing areas. Less dissolved oxygen affects the food supply and growth of fish. However, Respondent's interior canals have been a plentiful source of fish over the years. Another cause of reduced oxygen levels in the upper St. Johns River is the natural loading of nutrients from accumulated detritus from adjacent marshes and wetlands. In particular, the trees and plant life in the area from Lake Washington to south of Lake Winder consist of a swamp forest which produces a larger amount of detrital material than grass marshlands. During the wet season of June through October, average dissolved oxygen levels in the upper St. Johns River range from 2.0 to 4.0 mgs per liter and can, at times, fall as low as 0.0. However, samples from lake areas in the upper St. Johns show average levels ranging from 4.9 mg/1 to 7.9. Although water samples showing dissolved oxygen values of zero were measured in Bulldozer Canal in 1978, a sample from the river upstream of the canal showed the same value. In January 1979, six locations were sampled along Bulldozer Canal and in Respondent's canals located behind the dike. No pumps were operating and the data did not indicate any appreciable water quality problem. Samplings in the North Mormon Outsider Canal consistently show dissolved oxygen concentrations of less than 2.0 mg/1. In most cases, the dissolved oxygen concentration in the canal was less than in the river upstream, and in some cases a drop in dissolved oxygen concentration in the river occurred as it passed the canal. Respondent's pumps normally operate during the rainy season after a two to four inch rainfall. There are some twenty-three potential periods for Pumping during the months July to October, but normally the pumps are operated for only about fourteen days a year. It is estimated that the pumps contribute less than one percent of the river content during such periods. Water samples taken from Respondent's exterior canals in October 1978, both before and after pumping, failed to reveal any significant change in dissolved oxygen levels. Insufficient data exists to show the effect of pumping on dissolved oxygen levels at the present time. The organic material discharged by pumping operations undoubtedly depresses oxygen values to some unknown extent, but seasonal monitoring is necessary to ascertain precise data in this regard. The Florida Game and Fresh Water Fish Commission studies showed that only at one time was there found to be a low dissolved oxygen level when the pumps were operating. Initially, at least, pumping serves to aerate the water to some degree with consequent increase in dissolved oxygen. Other ranching and agricultural operations along the upper St. Johns River, together with organic material flushed from adjacent lands, provide an unknown contribution to the depressed oxygen values of the upper St. Johns River. Temporary operating permits have been issued to a number of ranches and farms adjacent to the river which call for monitoring of water quality from structures and pump discharge for evaluation of the effects of the discharge upon the receiving waters. Respondent is one of several such sources in the upper St. Johns River who has declined to submit an application. Although the term "stormwater discharge" is not defined in Chapter 403 or DER rules, pumped discharges of water that has been dormant for a considerable period of time with accumulated plant debris, nutrients, and other wastes are not considered by DER, as a matter of policy, to be "stormwater discharge" within the meaning of Rule 17-4.248, F.A.C. (Testimony of Parks, Sullivan, Hulbert, Justesen, Cornwell, Shannon, Dahl, Mapes, Pate, Ross, Petitioner's Exhibits 6-7, 10-10A, 12-15, 20-24, 26, Respondent's Exhibit 2) The Deseret Ranch contains pine flatwoods, and numerous cypress domes, strands, and marshes. Approximately 50 percent of the ranch area has been left in a natural system and therefore is one of the most productive areas in Florida for the propagation of wildlife. The ranch creates an excellent environment for such productivity by a mixing of natural and developed environment. A wide variety of animal, bird, aquatic and plant life are found throughout the ranch property. Approximately 30,000 deer are estimated to inhabit the ranch area. (Testimony of Cornwell, Dahl, Sullivan, Mapes, Pate, Justesen, Shannon, Respondent's Exhibits 7-10, Petitioner's Exhibit 26) Three public witnesses testified at the hearing. One witness who operates Camp Holly, a fish camp on the St. Johns River, attested to the importance of the river system for recreational and fishing purposes, and expressed concern as to fish kills and the adverse effects on fishing from recent high water. Another witness who is a professional fisherman expressed similar concerns about recent flooding and consequent detrimental effects on fishing. The third witness testified as to his opinion that Petitioner is a responsible agency that is cautious in development and analysis of data in carrying out its statutory responsibilities. (Testimony of Cataldo, Hunter, Nicolay, Hearing Officer Exhibit 1) At the hearing, Petitioner submitted in evidence a summary of its costs of investigating the activities of Deseret in preparation for this administrative proceeding in the amount of $632.94. However, agency records supporting the expenditures were net made available to Respondent and, consequently, Respondent had no opportunity to determine the accuracy of such costs. It is therefore found that Petitioner's costs are not supported by competent evidence. (Testimony of Kozlev, Petitioner's Exhibit 30)
Recommendation That Petitioner issue a final order for corrective action requiring Respondent to submit an application for an operation permit covering its Pumping stations within sixty (60) days from the date of such final order, under the authority of Section 403.121(2)(b), Florida Statutes. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Philip N. Watson, Esquire 17th Floor CNA Building Post Office Box 231 Orlando, Florida 32802
The Issue Respondent Jacksonville Shipyards, Inc. (JSI) filed a permit application with the State of Florida, Department of Environmental Regulation, (DER), for permission to conduct maintenance dredging in a basin associated with its shipyard operation. This permit application was made in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. In the face of DER's statement of intent to grant this permit, George H. Hodges, Jr., (Petitioner), has petitioned in protest. Therefore, the issues to be considered in this dispute concern the entitlement of JSI to the grant of an environmental permit for maintenance dredging of its shipyard basin.
Findings Of Fact DER is an agency of the State of Florida charged with the environmental protection of waters within Florida. Its authority includes regulatory powers announced in Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. Certain activities involving state waters require permission from DER before they be lawfully undertaken. Among those activities are dredge projects such as contemplated by JSI in its pending request to be allowed to maintenance dredge as much as 66,000 cubic yards of material per year from its shipyard basin located in Jacksonville, Duval County, Florida. This is an undertaking which is envisioned by Chapter 403, Florida Statutes, related to the permit responsibility of DER. It is specifically addressed by Rule 17-4.28, Florida Administrative Code, in which is found the statement of permit requirements for dredge and fill activities. JSI, the applicant, operates a facility known as Bellinger Shipyard, which is engaged in the repair and maintenance of commercial and naval vessels. This enterprise includes the drydocking of vessels upon which repairs are effected, through the use of several drydock chambers in shipyard basin. In the course of the maintenance, a technique known as "gritblasting" is employed. The purpose of this "gritblasting" is to clean the ships in anticipation of repainting. On occasion the "gritblasting" would remove all coats of paint down to the metal finish of the ship. The paints being removed contain antifouling and anticorrosive materials. Those materials have, among other properties, the ability to repel marine organisms, causing their mortality. The "gritblasting" process utilizes a material known as "black beauty." This is a waste product from firing power plant boilers and it contains iron, silica, aluminum, titanium, magnesium, lime, penta oxide (P2O5), sodium oxide, sulfur trioxide and potassium oxide. The "black beauty" is applied through the use of a pressurized system which forces the material onto the treated surface under pressure of 70 to 85 pounds per square inch. After the preparation is made, vessels under repair are repainted, and similar paint with antifouling and anticorrosive properties is reapplied. During the "gritblasting" process, dust is generated and a portion of that material finds its way into the water within the basin. Other particles being removed drop to the deck surface of the drydock. When paint is reapplied to the surface of a vessel undergoing repair, it is given the opportunity to dry and the vessel is then refloated and removed from the drydock. To do this, the drydock itself is submerged. When the vessel has exited the drydock facility, the drydock resurfaces and is allowed to dry out. The material which has been removed from the surface of the repaired vessel is then shoveled into containers and transported to an offsite sanitary landfill for disposal. This material removed includes the "gritblasting" compound and paint which has been stripped from the surface of the vessel. When the drydock is submerged following vessel servicing, the inference can be drawn that a certain amount of the materials on the drydock deck surface will be introduced into the water within the basic before the drydock is resurfaced. The arrangement for refloating the vessel is the reverse of the technique employed in lifting the vessel out of the water for maintenance. When the vessel is brought in for service, it is guided into a submerged drydock. Water is then pumped out of the hollow drydock walls and deck to raise the vessel out of the water, allowing access to the vessel, which is completely above the water surface, as is the drydock work deck. The basin in which the business activities of JSI take place is located on the western shore of the Intercoastal Waterway. The Waterway and basin are part of an estuarine system, as these water bodies are tidally influenced. The basin and the Intercoastal Waterway constitute Class III waters of Florida. The configuration of the basin is as found in JSI Exhibit 16, an aerial photograph of the site. Moving from east to west within the basin, it is approximately one thousand feet from the Intercoastal Waterway to the back of the basin in its western-most extremity. In the back area of the basin the north- south axis is 250 feet. The interface between the basin and the Intercoastal Waterway on the eastern reach north-south axis is approximately 625 feet. There are no obstructions to the confluence of the Intercoastal Waterway and the eastern side of the repair basin. The southern-most reach of the basin is approximately 350 feet in length running east to west. On the eastern side of the basin there is a pier area which is roughly 360 feet north-south by 60 feet east-west. As described before, the pier is not a solid structure extending to the bottom of the water. Thus, water can be exchanged between the basin and the Intercoastal Waterway beneath the pier. JSI had acquired the Bellinger Shipyard in 1974. At that time environmental permits had been issued allowing for the maintenance dredging of the basin. These permits were valid through 1975. In 1975, JSI obtained a dredge and fill permit from the Florida Board of Trustees of the Internal Improvement Trust Fund, as well as a dredge and fill permit from the United States Corps of Engineers. These permits were for a ten-year period. They allowed maintenance dredging in the amount of 66,000 cubic yards per annum and for the disposal of the dredged material in an EPA-approved offshore site. In 1980 DER confirmed the dredge and fill permit that had been obtained from the Florida Board of Trustees. This permit by DER required JSI to conduct monitoring of turbidity during dredging, but did not require employment of turbidity screens. In 1979 the Army Corps had required JSI to conduct bioassay analysis in furtherance of the federal dredge and fill permit. In the face of the results obtained in that bioassay analysis, the Army Corps continued the dredge and fill permit to JSI dating from August 14, 1980. A subsequent extension of the federal permit was given through August 14, 1986. Contemporaneous with the present permit application before DER, JSI has requested further permission from the Army Corps related to the ability to excavate as much as 66,000 cubic yards of material on an annual basis. JSI has not been cited by any regulatory agency related to water quality violations associated with its dredging activity. The present DER permit application is for renewal of the 1980 Permit No. 16-21380 and is being processed under the DER File No. 161071139. This application for permit renewal was submitted on July 16, 1985. The application requests permission to maintenance dredge for a period of ten years. If granted, it is the intention of the applicant to use a closed clam shell bucket to excavate the material in the basin. This choice is in furtherance of the suggestion of DER and is a departure from the applicant's initial intention to use an open bucket to excavate. JSI also intends to employ turbidity curtains during the dredge activities. The applicant intends to transport the dredged material to the aforementioned EPA disposal site which is at sea. In doing so, a hopper barge is propelled by a towing vessel. Both the barge and towing vessel are inspected and certified by the United States Coast Guard. The crews involved in the transport of the material are qualified and licensed. In the past, transport of the material has been done under fair weather and smooth sea conditions, and it is intended that the transportation be done in that same setting if the permit is granted. The barge would not be loaded fully, thereby minimizing spillage. This was the arrangement in the past. The United States Coast Guard will be apprised of the departure time of the voyage in transport of the material, certain activities within that transport and upon return. The hopper barge has a bottom dump which is closed during transport and is opened at the bottom in disposing the dredge material. After satisfying DER about its proposal, JSI was informed that DER intended to grant the dredge permit requested. When Petitioner, George H. Hodges, Jr., the owner of real property adjacent to the site of the project, learned of the stated intention to grant the maintenance dredging permit, he offered a timely petition in opposition to the proposed agency action. This property of Petitioner is in Jacksonville, Duval County, Florida. It is located north of the JSI property at issue. Petitioner's real property is connected to the Intercoastal Waterway. Petitioner has filed this action in opposition to the grant of the permit upon the expressed belief that the dredging activity will cause pollution at his property. In particular, it is JSI's intention at various times in the calendar year to do maintenance dredging in the entire basin. In addition to using a closed clam shell bucket, a system of turbidity barriers or curtains will be employed in segmented dredge areas. Those several locations within the basin which are cordoned off with the turbidity curtains are as depicted in JSI's Exhibit 9 admitted into evidence. The design maintenance depths for the dredging project are set forth in JSI's Exhibit 4 admitted into evidence. They vary from -17 to -37.5 feet, with the greatest depth being contemplated under drydock number 1 in the northwestern corner of the basin. Near the Intercoastal Waterways the depth sought is -17 feet, transitioning to -21.5 feet moving toward the back of the basin at the western extreme and outside of the area dredged beneath drydock number 1. The depths sought under drydock numbers 2 and 3 are -26.5 feet and -20 feet respectively. These desired elevations correspond to conditions at mean low water. The tidal range in the Intercoastal Waterway adjacent to the basin, which would promote an influence in the basin proper, is in the neighborhood of 4-foot intervals, with two tidal cycles a day. This would mean, as example, that at the high tide range, the shallowest design depths for dredging of -17 feet become -21 feet in the transition from mean low water to mean high water. Those 4-foot variations would pertain to the other design depths contemplated in the dredging as described in the preceding paragraph as well. The turbidity barriers contemplated for use will extend from the surface through the water column to depths near the bottom. See JSI Exhibits 4 and 9. It is desirable, according to Dr. Gregory Powell, witness for JSI, a reliable expert in describing the effectiveness and use of turbidity curtains, to have those curtains extend to an area just above the bottom. Dr. Powell's education includes a Masters Degree in coastal and oceanographic engineering and a Ph.D. Degree in engineering mechanics, with emphasis on coastal and oceanographic engineering. In consideration of his remarks, under the influence of high tide there could be as much as a 4 foot gap between the curtain and the bottom. Powell and other experts who offered testimony agreed that turbidity screens can have effectiveness in areas of low current velocity, assuming the proper installation, maintenance and extension to a location near the bottom of the water body. If mismanaged, turbidity screens are not effective in controlling turbidity. Moreover, they are less effective in areas where significant current velocities are experienced. This would include the circumstance in which a foot and a half or more per second of flow was being experienced, according to Dr. Powell, whose opinion is accepted on this point. He also indicated that the quiescent areas in the basin, toward the back of the basin or western dimension of the basin, would show a flow regime in a rate of one centimeter per second. This expression is credited. Although, as described by Dr. Powell, the currents in the Intercoastal Waterway are moving at a rate approximating nine feet per second on ebb time at the bridge located on the Intercoastal Waterway to the south of the project site, these current velocities are not expected in the area where the dredging is occurring. Dr. Powell is correct in this assessment. As he describes, and in acceptance of that testimony, eddies from the current from the Intercoastal Waterway at peak flood tide could come into the basin and temporarily show velocities of one foot per second; however, these velocities are within the acceptable range of performance of the turbidity barrier. Dr. Powell's conclusion that wind would have no significant effect on the current velocity, given the depth of this basin, is also accepted. The remaining flow regime in the basin is not found to be a detriment to the function of the turbidity barriers. The use of turbidity curtains in this project is not found to be a "placebo" to placate DER as suggested by Erik J. Olson, engineering expert who testified in behalf of the Petitioner The monitoring that is intended in the course of the dredging activities would call for examination of background turbidity levels at three sites in the Intercoastal Waterway prior to commencing of dredging and twice daily at each of these sites during dredging. Should a violation of state water quality standards for turbidity be detected, dredging will cease until the problem with turbidity can be rectified. To provide ongoing assurances of compliance with water quality standards, JSI will analyze the sediment in the basin for the parameters of cadmium, copper, aluminum, lead, mercury, oil and grease every two years. Dr. Powell, expert in engineering and recognized as an expert in the matter of transport of the resuspended sediment associated with the dredging, as well as David Bickner, the project review specialist for DER, believe that the use of the closed clam shell bucket technique and employment of siltation screens or barriers, together with turbidity monitoring, will effectively protect against turbidity violations in the Intercoastal Waterway adjacent to the basin. This opinion is accepted. Bickner brings to his employment a Bachelor of Science degree in biology and a Master of Science degree in ecology. Bickner identified the principal concern of DER related to this project as the possibility of release of resuspended sediments into the Intercoastal Waterway. With the advent of the techniques described in the previous paragraph, only minimal changes in background conditions related to turbidity are expected. Although there would be turbidity violations within the confines of the areas where the dredging occurs, the principal influence of that turbidity will be confined in those regions. This speaks to dredge areas I, 2 and 3. According to Bickner, whose opinion is accepted, the turbidity changes within the dredge areas in relationship to background conditions do not require a mixing zone permit, nor do they constitute a basis for denial of the permit. As alluded to before, and as described by Dr. Powell, the basic nature of the basin in question is one of quiescent conditions with low current velocity. He points out that the layout of the basin is such that it is a sediment trap allowing the deposit of silt, in particular in the deeper sections of the basin near the western side. The greatest influence by resuspension of sediment in the dredging activities can be expected in the back portions of the basin and it is in this area that the silt barrier can be expected to be most efficient, based upon Powell's remarks. Dr. Powell indicated that there is the expectation of increased efficiency in turbidity control when a closed clam shell bucket is used, as opposed to the open style of clam shell bucket. Those efficiencies range from 30 to 70 per cent. There is some risk of increased turbidity near the bottom of the water column in the use of a closed clam shell bucket, and for that reason the applicant should monitor the activities of the operator of the excavation machinery to guard against inordinate disturbance of the area being excavated. On balance, the closed clam shell bucket is a superior technique to the open style of clam shell bucket excavation when those alternatives are compared. As Dr. Powell explained, the segmentation of the dredge area allows the resuspended sediment to be confined in more discrete circumstances and to be controlled. The location of the silt barriers behind the pier structure guard against the effects of eddying. The silt barriers can be properly anchored and will not be unduly influenced by current velocity. Dr. Powell believes that the use of silt barriers, taking into account a low velocity of current in the basin, and the proper deployment of the siltation screen could bring about a reduction of the resuspended solids by 80 to 90 per cent on the outside of the barrier. To calculate the influence or the environmental significance of that remaining 10 to 20 per cent of resuspended solids at the Intercoastal Waterway, Dr. Powell testified that the suspended load behind the silt curtain resulting from the dredging is expected to average from 100 milligrams per liter to a peak amount of 500 milligrams per liter. He believes that, depending on which methods of calculation is used, the dilution factor in the Intercoastal Waterway ranges from 330:1 to 600:1. In using an environmentally conservative assessment, that is 80 per cent effectiveness of the silt curtain with a 330:1 ratio, Powell calculated that the release of resuspended materials into the Intercoastal Waterway would be approximately .3 to 1.5 milligrams per liter. This translates to less than 1 NTU against background conditions. This result would not exceed the 29 NTU limit against background that is described as the standard for turbidity control. Dr. Powell's opinion of turbidity results based upon the dredge activity is accepted. There is exchange of water between the basin and the Intercoastal Waterway and to accommodate this influence, the turbidity curtains would be placed in such a fashion that they would not compete with the ebb and flow of the tide. Dr. Powell's assessment of the circumstance in describing the effectiveness of turbidity barriers takes into account the tidal conditions and the inappropriateness of trying to have the silt curtains prohibit the flow conditions during these tidal changes. In order to promote maximum effectiveness of the turbidity barriers during the entire course of excavation of materials, the length of, the silt screen must be adjusted as desired elevations are approached. Erik J. Olson is an expert in civil engineering with an emphasis on hydraulics and the holder of a Masters Degree in coastal and oceanographic engineering. As alluded to before, he questions the validity of the use of siltation barriers as an effective protection against the implications of turbidity. He properly points out that the curtains will not extend to the region of the interface of the basin and the water column at all times. He describes the exchange of water between the basin and the Intercoastal Waterway, to include the unrestricted sediment transport beneath the turbidity curtain. He believes that wind can cause changes in current velocity as great as .2 foot per second, activities within the basin an additional .3 foot per second, and eddying .3 foot per second. All of these taken together do not exceed the range of effective response of the turbidity barriers. On balance, Olson's criticism of the benefit of turbidity curtains is unconvincing. Arlynn Quinton White, Jr., who holds a Bachelor of Science Degree, a Master of Science Degree in biology and a Ph.D. in matters related to marine biology, offered his testimony in support of Petitioner. He believes that as much as 2 to 3 per cent of the resuspended sediment related to the dredging activities would reach the Intercoastal Waterway under the best of conditions. It is difficult to translate that testimony into a measurement of changes in turbidity levels against ambient conditions in the Intercoastal Waterway. In any event, as already indicated, the changes in turbidity levels are not expected to exceed 29 NTU against background. It is evident that the turbidity curtains are necessary and their proper use must be assured to protect against problems associated with turbidity and the implications of the constituents of the resuspended particulate matter related to possible toxicity. Therefore, the close monitoring suggested in the statement of intent to grant the dredge permit is viable. Another matter associated with the implications of turbidity pertains to the fact that when the dredge material has been resuspended, as much as two days could pass before the basin returns to background conditions, given the high content of silt with its attached metals. This becomes significant given the uncertainty of the location of the dredge equipment during the course of excavation, i.e., inside the barrier or outside the barrier. Final choice about the placement of the dredge equipment will have to be made at the time of the excavation. Should the dredge equipment be inside of the cordoned area while excavation is occurring, it would be necessary to allow turbidity conditions to achieve background levels before opening up the barrier for the exit of the hopper barge which contains the excavated material. Otherwise, the estimates as to the influence of the dredging activities in the Intercoastal Waterway are unduly optimistic. Likewise, if the excavation platform is placed outside of the work site, that is to say, on the outside of the siltation curtain, extreme caution must be used to avoid spillage of the excavated material when being loaded onto the hopper barge. The occasions in which the excavation is being made from this side of the barrier should be minimized. These safeguards are important because any changes in sediment loading within the Intercoastal Waterway promote an influence in the area immediately adjacent to the basin and other sites within the Intercoastal Waterway as well. The subject of the use of a hydraulic dredge as an alternative to excavation by use of a closed clam shell bucket was examined in remarks by the witnesses appearing at hearing. Olson believes that there are hydraulic dredges which can achieve the design depth contemplated by the project and which equipment could fit inside the basin area. This is contrary to the opinion of witnesses for the applicant and DER who do not believe that the hydraulic dredging equipment which would be necessary to achieve the design depths would fit into the basin area. On balance, the record does not establish that such equipment with the appropriate capability and size does exist. More importantly, the proposed method of excavation is environmentally acceptable when examined in the context of the permit sought in this case. Finally, it was not essential for the applicant to make a detailed investigation of availability of hydraulic dredging equipment and it is not determined that failure to make this investigation warrants the denial of the requested permit. Although an hydraulic dredge is more desirable from the standpoint that it causes less turbidity through resuspension of sediments, it is not the only plausible method of excavation in this instance. Raymond D. Schulze testified in behalf of JSI. He holds a Bachelor of Science Degree and a Master of Science Degree in environmental engineering sciences. In particular, he established the fact that the amount of resuspended solids that would be introduced into the Intercoastal Waterway associated with the dredging activity would not result in the smothering of organisms or to clogging of gills of fish. In addition to the possible problems with turbidity, there is the additional issue of violation of water quality standards in the several parameters associated with concentrations of metals in the water column within the basin and in the sediments or related parameters such as dissolved oxygen and biological integrity. Having considered the testimony, the facts do not point to water quality violations for any parameters occurring in the Intercoastal Waterway as a result of the dredging. To arrive at this factual impression, the testimony of Dr. Pollman and Schulze is relied upon. Water quality sampling done by JSI in locations within the basin and in the Intercoastal Waterway, that by Dr. Pollman and Schulze, supports their impression of the acceptability of the dredge activities. This water quality data was admitted as JSI's Exhibit 18. Additionally, the field conditions existing at the time of testing, to include water temperature, weather conditions, tidal cycle, ph and dissolved oxygen were also made known. This water quality data and other information examined by these witnesses points to the fact that no increases in concentrations of metals are occurring within the Intercoastal Waterway as a result of the business activities of the applicant, nor are they to be expected while dredging operations are under way. Dr. Pollman correctly identifies the fact that there will not be significant degradation of water quality, above DER's minimum standards, related to the Intercoastal Waterway based upon the dredging activities within the basin, dealing with the water quality parameters of mercury, zinc, cadmium, chromium, lead, aluminum, iron and copper, substances which are within the basin. Dr. Pollman also examined sediment data collected by DER, and that data tended to confirm his assessment of the influences of the dredging activity related to these parameters. Dr. Pollman does not believe that metal concentrations contained in the sediment of the basin are leaching into the water column in quantities sufficient to cause violation of water quality standards. His opinion is accepted. Pollman had collected water quality samples in the two locations where the greatest siltation rate was expected and as a consequence the greatest concentration of metals would be expected. The water quality samples were taken at several depths to reach an opinion as to the matter of leaching of metals into the water column and the possibility of those metals dissolving in the water column. If leaching had been occurring, a concentration of metals expressed as a gradient would be expected. The greatest concentration in this instance would be near the sediment interface with the water column. No such gradation was detected and the idea of leaching was ruled out. Bickner's testimony established that testing for the exact amount of iron present at the dredge site was not required, given the nature of the iron source being introduced into the water within the basin. Bickner did not find that type of iron to be toxic. As stated before, Pollman agrees that no violation of state water quality standards as a result of the presence of iron associated with the maintenance dredging should be expected. There is some data which shows water quality violation for mercury in the basin and the Intercoastal Waterway. Subsequent water samples collected by Schulze in the westerly portion of the basis did not show detectable levels of mercury. Moreover, data taken by Pollman and Schulze and compared with the DER sediment data shows that the concentration levels of mercury are greater in the Intercoastal Waterway than in the basin, thereby suggesting that there is no concentration gradient for mercury which would lead to the belief that the basin contributes to the amount of mercury found in the Intercoastal Waterway, nor is the mercury believed to be leaching into the water column in the basin. The explanation of the differences in measurements of the amount of mercury in the basin, depending upon the point in time at which analysis was made, may be attributable to a natural phenomenon, given numerous sources of mercury within the environment. Whatever the explanation of these changes, Dr. Pollman does not believe that the release of mercury associated with the resuspended sediments that may find their way into the Intercoastal Waterway would show a violation of the state water quality standard for mercury in that water body and his opinion is credited. Data collected by Pollman and Schulze did not show water quality violations for aluminum and the DER test data described before indicated aluminum levels lower in the basin than in the Intercoastal Waterway. Some data collected by Technical Services, Inc., an environmental consulting firm in Jacksonville, Florida, which was reviewed by Pollman, Schulze, and Bickner showed a substantial violation of the water quality standard related to aluminum in sediment sampling that was done. The origin of that amount of aluminum found on that occasion was not clear. It is possible, as described by Bickner, Pollman and Schulze, that the level detected In the Technical Service report could have occurred based upon natural phenomena such as storm water runoff from uplands. Bickner also questioned the findings of Technical Service and felt like the determination might be influenced by some intervening circumstance which would promote the need for re-analyzing that parameter. Whatever the explanation of the findings in the Technical Service report, it does not point to any water quality violation of the standard related to aluminum based upon the dredging activities, given the limited amount of total suspended solids that would be introduced into the Intercoastal Waterway. Schulze, in his assessment of the implications of metal concentrations in the sediment transported to the Intercoastal Waterway, did not find them to cause concern about toxicity to marine life in the Intercoastal Waterway. This point of view is accepted. In trying to understand the implications of metal concentrations, Schulze believed that the biologically available fractions of those metals in the sediment is not very high, and when the dilution of the sediments which occurs in these circumstances is examined, no toxicity is expected. Moreover, as Dr. Pollman described related to the parameter aluminum, it is not a toxic material at the ph levels found in the basin, and the resuspension during dredging will not cause it to gain toxicity. This opinion of Dr. Pollman is supported by Bickner and Schulze. The opinion of Dr. White that the amount of aluminum, copper and zinc within the sediment found in the basin would eventuate in the violation of water quality standards for those parameters when introduced into the Intercoastal Waterway is rejected. The information available to Pollman, Schulze and Bickner which describes their opinion about water quality standards was sufficient to reach an opinion, the position of Petitioner's witness Sanford Young, holder of a Bachelor of Science Degree in civil engineering and a Master of Science Degree in zoology notwithstanding. As Bickner indicated in his testimony, it is essential that an applicant give reasonable assurances of compliance with all parameters listed in Chapter 17-3, Florida Administrative Code, dealing with water quality. However, this does not mean that testing must be done for each parameter set forth in that chapter. Reasonable assurance has been given that water quality parameters as identified in that chapter will not be violated. Bickner indicates the biological integrity standard is not one of concern in that given the nature of business operations within the basin, there is no expectation of a stable benthic community which might be disturbed by dredging. From the remarks of Schulze, there is no prospect of danger to benthic communities within the Intercoastal Waterway. These impressions by Bickner and Schulze are accepted. Under the facts of the case, the failure of the DER permit appraisers to discover benthic organisms in the sample grabbed at the site is not unexpected. There is also some question about whether that sample is representative of the circumstance at the site, given the limited sampling. On the topic of normalization of the DER data which was described in the course of the hearing and is identified by Dr. Pollman, the value of that information is seen as establishing the relative quantities of certain metals within the basin as compared with other sites throughout the Intercoastal Waterway. Twenty-one different locations were involved in this analysis. Concentration ratios using aluminum to normalize the data are as reflected in JSI's Exhibit 17 admitted into evidence. The significance of this information as it grossly describes whether the basin routinely contributes to increases in the amounts of these metals within the Intercoastal Waterway. Overall, basin activities are not shown to have promoted such an outcome. This normalization comparison does not address the issue of site specific water quality violations; however, no such violations are expected associated with the dredging activities within the basin as it relates to violations in the adjacent Intercoastal Waterway. Schulze had made sampling related to dissolved oxygen within the basin and the Intercoastal Waterway. As Schulze describes, the levels of dissolved oxygen seem to be at their lowest point just prior to the dawn hours. Sampling which he did was done at 5:00 a.m. in order to obtain the lowest dissolved oxygen readings. Three sites were sampled within the basin and an additional site was sampled in the Intercoastal Waterway. Readings were taken at varying depths at each site to gain an impression of the overall water column. The mean reading for the circumstance was in excess of the required range for state water quality, that is 4.0 per million. Having considered the evidence, no problems with dissolved oxygen are expected in that deficit contribution is in the range of .1 milligram per liter, per Pollman. In addition, Dr. Powell, through modeling, examined the implications of long-term dredging activities on the topic of dissolved oxygen. He employed field data gathered by Schulze in this assessment. This modeling established that decreases in dissolved oxygen levels would range from .1 to .15 milligrams per liter. Given the average of 4.5 parts per million oxygen in the basin at present, the incremental decreases in dissolved oxygen levels related to the dredging would not pose a problems with state water quality standards for dissolved oxygen other than short-term effects in the immediate vicinity of the dredge area, which is an acceptable deviation. As the Petitioner urges in its fact proposal, a 1983 report of Technical Services, Inc., JSI Exhibit 4, and a 1985 report of that firm, JSI Exhibit 7, were made available as part of the application. Officials within Technical Services, Inc. did not appear at the hearing and offer testimony related to the specific findings found in those reports. This information was used by the experts who did testify on behalf of the applicant, in particular Dr. Pollman, as data to question, his assumptions made about the implications of the project in terms of water quality concerns. Pollman also utilized DER data taken from a source known as Storette, and this pertains to the 21 sampling stations involved in the preparation of JSI Exhibit 17, the graphing document related to concentrations of various metals. Again, this was in furtherance of the basic underlying opinion which Pollman had about the project. The Storette data as such was not offered into evidence. Witnesses for the Petitioner, namely Olson and White, were aware of the two reports of Technical Services, Inc. and the use of the DER Storette data and offered their criticism of the project taking into account this information. Petitioner points out that there is no indication as to how far below the sediment/water interface the Technical Services, Inc., and DER sediment samples related to reports of the consultant and the Storette information of DER were extracted. Therefore, it only reflected one portion of the sediment at a depth of extraction. A more complete understanding of the sediment characteristics would have been shown through a core sample, especially in the area to be dredged, but that understanding was not essential. The suggestion by the Petitioner that it was inappropriate to normalize data for purposes of describing the relative concentrations of the metals parameters is not accepted. The preparation of JSI's Exhibit 17 does not point to abnormally high amounts of aluminum, such that the use of aluminum as a known commodity in carrying out the normalization would be contraindicated. As identified by the petitioner in its proposal, sediment sizes within the strata found in the basin depicts higher percentage of silt and clay-size sediments in the back end of the basin with lesser amounts of the silt- and clay-size sediments in the southern reach of the basin and at the intersection of the basin with the Intercoastal Waterway. The smaller the particles, such as silt and clay, will remain suspended for a longer period of time and have a tendency to promote bonding with heavy metal. Nonetheless, this information does not change the impression that the turbidity barriers will be effective. The 1983 Technical Services, Inc., information related to the settling of resuspended sediment and similar information imparted in the 1985 report by that organization tend to confirm that approximately two days should be necessary to allow the area of excavation to return to background conditions related to turbidity. This is in corroboration of remarks by Dr. Powell. These time projections are not found to be inadequate when taking into account other factors such as tidal changes, boat traffic, other activities within the basin, wind and weather events. As White described, the antifouling properties of the paint involved in the business activity of the applicant can be expected to adversely impact any larval forms of marine organisms when introduced into the basin. Nonetheless, this toxicity is not expected to pose a danger to marine organisms in the Intercoastal Waterway given the percentage of resuspended sediment that will escape capture by the sediment barriers and the dilution factor before introduction of those resuspended sediments into the Intercoastal Waterway. Petitioner questions the acceptability of evidence of the findings set forth by E G & G Bionomics, a firm which performed an examination to determine existing diversity of benthic macroinvertebrates. Those results are reported in Petitioner's Exhibit 13, a 1980 report. They were not accepted as evidence of the specific findings within that report in that they were not the subject of discussion by persons who authored that report. The use was limited to corroboration of the opinion by Dr. Pollman and Schulze as to water quality considerations and they were not Crucial to their opinions. Moreover, it was not necessary for the applicant to perform a more recent bioassay in order to give reasonable assurance to DER concerning water quality matters or to establish the implications of the influence of contaminants within the sediment found in the basin related to benthic macroinvertebrates. The biological integrity of the basin area was at risk prior to the proposal for maintenance dredging. The relevant inquiry is the influence of the dredging activities on the biological integrity in the Intercoastal Waterway and those activities do not place organisms within the Intercoastal Waterway in peril. Any synergistic aspects of metals which act as toxins, for example, the increase in the aggregate value of the toxicity of zinc and cadmium, compared to their individual implications as toxins, will not present problems with water quality in the Intercoastal Waterway. Petitioner takes issue with the proposed disposition of the dredge material at an ocean site. While an appropriate upland disposal site would be preferred, it is not mandated. The approved EPA disposal site within federal jurisdiction is acceptable. Petitioner in its fact proposals found at paragraphs 36-39 (incorporated by this reference) points out violations of water quality standards for cadmium, mercury, and aluminum, and other possible violations of the standard for mercury. This information does not cause a change of opinion about the acceptability of the project in terms of reasonable assurances. There is no indication that oils and greases will present a problem related to water quality standards. The project is not contrary to public interest in that: (a) the project will not adversely affect the public health, safety, welfare or the property of others; (b) the project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitat; (c) the project will not adversely affect navigation or the flow of water or cause harmful erosion of shoaling; (d) the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; (e) the project will be of a temporary nature; (f) the project will not adversely affect significant historical and archaeological resources under the provisions of s. 267.061; (g) the project is in no other way contrary to the public interest. The purpose of this fact finding does not include the issue of whether there are ongoing violations of state water quality standards associated with the business activity of the applicant, that not being the subject of the hearing. In any event, the testimony of Dr. Pollman established that the operations of JSI are not causing water quality problems associated with the parameters of cadmium, copper, aluminum, mercury, lead, chromium, tin, zinc or iron related to the Intercoastal Waterway. The influences of the business activities associated with those parameters within the basin are not understood when the evidence presented is examined but are not found to be essential to the resolution of this dispute.
Recommendation Having considered the facts, and the conclusions of law, it is, RECOMMENDED: That DER issue a final order which grants the requested maintenance dredging permit in keeping with the safeguards described in the fact finding of this recommended order. DONE AND ORDERED this 16th day of October 1986 at Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0365 Having examined the proposed facts submitted by the parties, those proposals have been found as fact with the exception of the following which are distinguished: Petitioner's facts Paragraph 1: Subordinate to fact finding. Paragraph 2: The first sentence in this paragraph is rejected because the fact is not found within the indicated exhibits, nor can that fact be fairly inferred. Paragraphs 9, 10, 11, 14, and 15: Except for the last sentence in that latter paragraph are subordinate to facts found. Paragraph 15: The last sentence: Contrary to facts found. Paragraph 18: The last sentence: Subordinate to fact finding. Paragraphs 21, 22, 23, 24, 25 and 26: Subordinate to fact finding. Paragraph 27: Contrary to facts found. Paragraphs 28, 29, 30 and 31: Subordinate to fact finding. Paragraph 32: Not necessary to dispute resolution. Paragraphs 33 and 34: Subordinate to fact finding. Paragraph 35: Contrary to facts found. Paragraphs 40, 41 and 42: Subordinate to fact finding. Paragraphs 44, 45: Not necessary to dispute resolution. Paragraph 47: The first two sentences are information that is not sufficiently credible to allow application to the issues of the present case. Paragraphs 48, 49, 50 and 51: Not necessary to dispute resolution. Paragraph 52: Reject as fact. Paragraph 54: Contrary to facts found. Paragraph 55: Not necessary to dispute resolution. JSI and DER facts Paragraph 2: Pertaining to sentence 8 and the last phrase within sentence 11; Not necessary to dispute resolution. Paragraph 3: As to the first sentence, fourth sentence and seventh sentence; Not necessary to fact resolution. Paragraphs 4, 5 and 6 to the colon in paragraph 6: Not necessary to dispute resolution. The remaining portions of paragraph 6 are subordinate to fact finding. Paragraph 10: as to the last two sentences; Not necessary to dispute resolution. Paragraph 13: As to the next to the last sentence; Not necessary to dispute resolution. Paragraph 14: As to the fourth sentence and the last sentence; Not necessary to dispute resolution. Paragraphs 16, 17, 18 and 20: Subordinate to fact finding. Paragraph 21: Sentence 3 is subordinate to fact finding sentence 4 is not necessary to dispute resolution; sentences 5 and 6 are subordinate to fact finding. Paragraph 22: Next to the last sentence; Not necessary to dispute resolution. Paragraphs 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 38 and 41: Subordinate to fact finding, except the comments in the last sentence of paragraph 41 related to the operations of JSI causing or contributing elevated concentrations of parameters within the basin which is not found as fact. Paragraphs 42, 43 and 44: Subordinate to fact finding. COPIES FURNISHED: Kenneth G. Oertel, Esquire Chris Bryant, Esquire OERTEL AND HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Thomas M. Baumer, Esquire Deborah Barton, Esq. GALLAGHER, BAUMER, MIKALS, BRADFORD, CANNON AND WALTER, P.A. 252-5 Independent Square Jacksonville, Florida 32202 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The Parties and the Property. The Respondent, Saddlebrook Resorts, Inc. (Saddlebrook), is a corporation organized and existing under the laws of Florida, and is wholly owned by the Dempsey family. Saddlebrook is located on approximately 480 acres in central Pasco County, east of I-75 and south of State Road 54. The Petitioner, Wiregrass Ranch, Inc. (Wiregrass) is a corporation organized and existing under the laws of Florida, and is wholly owned by the Porter family ("the Porters"). Wiregrass owns approximately 5,000 acres of property which extends from Saddlebrook west approximately one mile to State Road 581 and south for approximately four miles. The Respondent, the Southwest Florida Water Management District (SWFWMD), is a political subdivision created pursuant to Chapter 61-691, Laws of Florida, which exists and operates under the Water Resources Act, Fla. Stat., Ch. 373. SWFWMD is charged with regulating, among other things, surface water management systems in Pasco County. Saddlebrook discharges surface water onto Wiregrass at two locations on the southern and western boundaries of Saddlebrook, known as the south outfall and the west outfall. Saddlebrook's property is part of a drainage basin totalling approximately 1400 acres that contributes runoff to Wiregrass' property. Until approximately 1973, the Saddlebrook property was undeveloped and owned by the Porters. In approximately 1973, the Porters sold the Saddlebrook property to the Refram family, which began developing the property. In approximately 1979, Saddlebrook acquired the property from the Reframs. The Saddlebrook property includes residential development, a conference center, and golf course and tennis facilities. Wiregrass' property, which is largely undeveloped and used for ranching, consists of pine-palmetto flatwoods, wetland strands, isolated wetlands, and improved pastures. The Porters' Civil Action Against Saddlebrook. The Porters instituted a civil action against Saddlebrook, Porter, et al. v. Saddlebrook Resorts, Inc., Case No. CA 83-1860, in the Circuit Court of the Sixth Judicial District, Pasco County, complaining that post-development discharges from Saddlebrook exceed pre-development discharges. In the civil litigation, the Porters contended that Saddlebrook's peak flow discharges should be returned to pre-development, or 1973, levels. A primary purpose of Saddlebrook's proposed redesign is to return peak flow discharges to those levels that existed in 1973, in response to the Porters' complaints in the civil action. Saddlebrook's current surface water management system is deemed by SWFWMD to be in compliance with Rule 40D-4, and SWFWMD's regulations do not require redesign or modification of the current system. Prior to Saddlebrook's submission of its application, SWFWMD advised Saddlebrook that, because Rule 40D-4 became effective on October 1, 1984, SWFWMD considered that date to be the "pre-development" condition for purposes of evaluating Saddlebrook's discharges. Saddlebrook requested that SWFWMD evaluate its application using 1973 as the pre-development condition. SWFWMD advised Saddlebrook that it would apply 1973 as the pre-development condition if the Porters consented. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for purposes of evaluating those discharges relevant to Saddlebrook's MSSW permit application. Saddlebrook's MSSW Permit Application. On or about February 8, 1990, Saddlebrook submitted its application for MSSW permit no. 497318.00, seeking SWFWMD's conceptual approval of the redesign of Saddlebrook's surface water management system. The proposed redesign calls for modification of most of the existing drainage control structures at Saddlebrook and installation of new control structures at several locations, including the south and west outfalls. After submission of its initial application, Saddlebrook made various subsequent submittals in response to SWFWMD requests for additional information. Saddlebrook's response to SWFWMD's requests culminated in final submittals on March 7, 1991 and April 5, 1991. In its various submittals, Saddlebrook provided, among other things, detailed descriptions of all proposed modifications to its drainage system, engineering reports, and computerized flood-routing analyses of runoff from Saddlebrook under pre-development (1973) and post-modification conditions. Saddlebrook provided all information requested, and SWFWMD thereafter deemed its application complete. SWFWMD's Review of Saddlebrook's Application. In the fifteen months following Saddlwbrook's initial February, 1990, submittal, SWFWMD conducted an intensive review of the application. During the course of this review, SWFWMD staff performed numerous field inspections, made an independent determination of all input data to the computer analyses of Saddlebrook's discharges, and made six separate formal requests for additional information. SWFWMD's requests for additional information required, among other things, that Saddlebrook modify various input data and rerun its computer analyses of discharges under the pre-development and post-modification conditions. In addition, SWFWMD required Saddlebrook to perform computer modelling analyses of discharges from Wiregrass' property onto the property of downstream landowners. Because, unlike the Porters, these downstream owners had not provided consent to use 1973 as the relevant pre-development date, SWFWMD required Saddlebrook to model this downstream discharge using a "pre- development" date of 1984. SWFWMD performed its standard review procedures in connection with Saddlebrooks' application. In addition, SWFWMD also performed its own computer-modelling analyses of Saddlebrook's discharges. This modelling was based on input data independently collected by SWFWMD staff in the field and from other sources. SWFWMD staff also met with the Porters' hydrologist, Dr. Gerald Seaburn, and thoroughly reviewed concerns he expressed in connection with Saddlebrook's application. In addressing these concerns, SWFWMD performed additional work, including conferring with an independent soils expert, performing additional field inspections, and modifying the SWFWMD computer modelling analyses based on alternative input parameters suggested by Dr. Seaburn. In reviewing Saddlebrook's application, SWFWMD applied the design and performance criteria set forth in its "Basis of Review for Surface Water Management Permit Applications" ("Basis of Review"), which is incorporated by reference in F.A.C. Rule Chapter 40D-4. Based upon its review of Saddlebrook's application, SWFWMD concluded that Saddlebrook had demonstrated compliance with the design and performance criteria set forth in SWFWMD's Basis of Review and the conditions for permit issuance under F.A.C. Rule 40D-4.301. By a Staff Report dated April 29, 1991, and Notice of Proposed Agency Action dated May 3, 1991, SWFWMD recommended approval of Saddlebrook's application. Compliance With SWFWMD Permitting Criteria. The design and performance criteria for MSSW permitting set forth in SWFWMD's Basis of Review fall into four categories: (1) water quantity, in terms of peak flow discharges for projects, like Saddlebrook's, located in open drainage basins; (2) flood protection; (3) water quality; and (4) wetlands impacts. Water Quantity. Under the Basis of Review's water quantity standards, SWFWMD requires that projected peak flow discharges during a 25-year, 24-hour storm event under the proposed system be reasonably similar to peak flow discharges under the pre- development condition. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quantity standards. This evidence demonstrated that peak flow discharges during a 25-year, 24-hour storm event under the proposed system will be less than, but reasonably similar to, pre-development (1973) peak flow discharges. The evidence presented at the formal hearing also demonstrated that, under the proposed system, peak flow discharges during a 25-year, 24-hour storm event from Wiregrass' property onto downstream landowners will be less than, but reasonably similar to, 1984 peak flow discharges. The evidence presented by Saddlebrook further demonstrated that storage will be increased under the proposed redesign versus the pre- development, 1973 condition. On Saddlebrook's property, there will be approximately 35 percent more storage than existed in 1973, and the total storage for Saddlebrook and the contributing drainage basin upstream of Saddlebrook will be increased by approximately 15 percent over that existing in 1973. Flood Protection. Under the flood-protection standards of the Basis of Review, SWFWMD requires that the applicant demonstrate that under the proposed condition the lower floor of all residential and other buildings on-site, and in areas affected by the site, will be above the 100-year flood elevation. SWFWMD also requires that there be no net encroachment into the flood plain, up to that encompassed by the 100-year event, which will adversely affect conveyance, storage, water quality or adjacent lands. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's flood-protection standards. The testimony of Mr. Fuxan and Wiregrass' related exhibit, Ranch Ex. 35, purporting to show that in a 25-year, 24-hour storm Saddlebrook's proposed redesign will "flood the [Saddlebrook perimeter] roads and just sheet flow onto the Porter property" is not accurate. As part of its redesign, Saddlebrook will construct an additional berm along the southwestern and southern perimeters of its property. This berm will detain water on Saddlebrook's property during a 25-year, 24-hour storm event and prevent it from "sheet-flowing" onto the Wiregrass property. Water Quality. Under the water-quality standards of the Basis of Review, SWFWMD requires, for systems like Saddlebrook's involving wet detention and isolated wetlands, that the applicant provide sufficient storage to treat one inch of runoff from the basins contributing runoff to the site. This volume must be discharged in no less than 120 hours, with no more than one-half of the volume being discharged within the first 60 hours. The evidence presented at the formal hearing demonstrated that Saddlebrook's application satisfies SWFWMD's water-quality standards. Wetland Impacts. Under the wetland-impacts standards of the Basis of Review, SWFWMD requires that the applicant provide reasonable assurance that the proposed system will not adversely impact on-site and downstream wetlands. The evidence presented at the formal hearing demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to on-site wetlands. Saddlebrook's proposed redesign will impact only approximately .167 acres of on-site wetlands, for which Saddlebrook will fully mitigate by creating .174 acres of forested wetlands and buffer area. The evidence presented at the formal hearing also demonstrated that Saddlebrook has provided reasonable assurance that the proposed redesign will cause no adverse impacts to off-site wetlands. Reasonable assurance that off- site wetlands will not be adversely impacted was demonstrated by, among other things, evidence establishing that: (1) discharge points will not change under the proposed condition; (2) discharge elevations will be reasonably similar under the proposed condition; (3) there will be no significant variation in the water fluctuations in the wetlands adjacent to the south and west outfalls as a result of the proposed condition; (4) the drainage basin areas will be reasonably similar under the proposed condition; and (5) the proposed redesign will satisfy SWFWMD's water quality requirements. Wiregrass' Petition. In its Petition for Formal Administrative Hearing, Wiregrass focused primarily on water quality issues and stormwater runoff rates (or peak flow discharges), alleging the following "ultimate facts" which it claimed "entitle [it] to relief": The application, as submitted, contains insufficient storage to meet water quality criteria. The application, as submitted, will result in storage volumes on the project site which will not be recovered within 72 hours [sic] as required by the DISTRICT criteria. The application, as submitted, contains calculations based on erroneous hydraulic gradients. The application, as submitted, will result in storage volumes insufficient to meet water quality criteria as required by DISTRICT criteria. Post development stormwater runoff rates are underestimated in the application, resulting in system design with insufficient retention storage capacity to meet the DISTRICT's water quantity criteria. The failure to store stormwater or irrigation runoff impacts the substantial interest of the RANCH in that it deprives it of groundwater resources necessary for the successful operation of the ranch. Further, the lack of storage of stormwater and irrigation water is a prohibited waste of the water resources. At the formal hearing, Wiregrass presented no evidence to support any of the foregoing allegations of its Petition. Objections Raised by Wiregrass At The Hearing. At the final hearing, Wiregrass' opposition to Saddlebrook's permit application focused on three different grounds: For purposes of evaluating peak flow discharges, SWFWMD does not have jurisdiction to use a pre-development date prior to October 1, 1984. Under F.A.C. Rule 40D-4.301(1)(i), which provides that an applicant must give reasonable assurance that the surface water management systems "is consistent with the requirements of other public agencies," SWFWMD must apply not only its own permitting criteria but also those of other governmental entities, including county planning ordinan Under F.A.C. Rule 40D-4.301(1)(b), which provides that a permit application must give reasonable assurances that the surface water management system "will not cause adverse water . . . quantity impacts", SWFWMD must consider whether the annual volume of runoff will increase as a result of the proposed surface water management system. None of the foregoing objections was raised in Wiregrass' Petition as a basis for denying Saddlebrook's application. (Annual volume was alluded to in the Petition only as being pertinent to the question of Wiregrass' "substantial interest" for purposes of standing.) In any event, for the reasons set forth below, each of these objections was refuted by the evidence presented at the formal hearing. The 1973 Pre-Development Date. In their civil action against Saddlebrook, the Porters took the position that Saddlebrook's surface water management system should be redesigned so that discharges approximate those levels existing in 1973, before development of the Saddlebrook property. Dr. Gerald Seaburn, a hydrologist retained by the Porters, testified in the civil action that 1973 is the appropriate pre-development date for purposes of evaluating Saddlebrook's peak flow discharges. David Fuxan, a civil engineer retained by the Porters, took the position in the civil action that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. At the formal hearing in this proceeding, Mr. Fuxan testified that it is still his position that Saddlebrook should modify its surface water management system so as to return peak flow discharges to 1973 levels. By letter from the Porters' counsel to SWFWMD dated January 31, 1990, the Porters provided their express consent to SWFWMD's use of 1973 as the pre- development date for evaluating those discharges relevant to Saddlebrook's MSSW permit application. Use of a 1984 "pre-development" date would prevent Saddlebrook from making the modifications the Porters claim in the civil litigation that it must make. Saddlebrook's existing system, about which the Porters complain in the civil litigation, is in all material respects the same system that was in place on October 1, 1984. Use of this existing system as the benchmark of comparison for attenuation of peak flows, therefore, would mean that substantial modifications to the existing system could not be made without substantially increasing retention storage on Saddlebrook. Substantially increasing retention storage on Saddlebrook is not possible due to the high water table and proximity of the lower aquifer. See Finding of Fact 70, below. In addition, a primary claim of the Porters in the civil action is that duration of flow under Saddlebrook's existing system exceeds 1973 levels and has resulted in expanded wetlands on the Porter property. But duration of flow and peak flow discharges are inversely related: duration of flow can be decreased only if peak flow discharges are increased. Accordingly, the only way that Saddlebrook can reduce the duration of flow onto Wiregrass to 1973 levels, as the Porters have demanded, other than increasing retention storage on Saddlebrook, is to return peak flow discharges to 1973 levels. Other Governmental Agencies' Requirements. F.A.C. Rule 40D-4.301(1)(i) provides that a permit applicant must give reasonable assurance that the surface water management system "is consistent with the requirements of other public agencies." SWFWMD has consistently interpreted this provision to be "advisory", i.e., to apprise applicants that they must also comply with other applicable laws and that issuance of an MSSW permit by the District does not relieve them of the responsibility to obtain all necessary local and other permits. SWFWMD's long-standing and consistently-applied interpretation and practice is not to require applicants to prove compliance with the regulations of other govermental agencies in order to obtain an MSSW permit. There are two primary reasons for this interpretation and practice. First, the Southwest Florida Water Management District includes 16 counties and 96 municipalities. In addition, other state and various federal agencies have jurisdiction within its territory. It is impracticable for SWFWMD to become familiar with, and to apply, the permitting and other regulations of more than 100 other agencies. Second, SWFWMD has concluded that, under Part 4 of Secton 373 of the Flordia Statutes, it does not have authority to deny a permit application based on its interpretation of another governmental agency's regulations. In any event, the evidence demonstrates that Saddlebrook has provided reasonable assurance that the proposed redesign will be "consistent with the requirements of other public agencies" as provided in F.A.C. Rule 40D- 4.301(1)(i). Limiting Condition No. 3 of the proposed permit requires that Saddlebrook must comply with Pasco County and other local requirements: The Permittee shall comply with all applicable local subdivision regulations and other local requirements. In addition the permittee shall obtain all necessary Federal, State, local and special district authorizations prior to the start of any construction or alteration of works authorized by this permit. In addition, Standard Condition No.3 ensures that SWFWMD approval will not supersede any separate permitting or other requirements imposed by Pasco County: The issuance of this permit does not . . . authorize any . . . infringement of federal, state or local laws or regulations. (Emphasis added.) Finally, the Pasco County ordinance upon which Wiregrass relies imposes requirements that are in substance identical to SWFWMD's with respect to MSSW permit applications. Saddlebrook's compliance with SWFWMD's regulations likewise would satisfy the substance of the requirements of the county ordinance. Annual Volume of Runoff. F.A.C. Rule 40D-4 (incorporating the Basis of Review) does not address, and SWFWMD does not regulate, the annual volume of runoff in open drainage basins. If annual volume of runoff is relevant under Rule 40D-4.301, as Wiregrass contends, that rule requires only that the applicant provide reasonable assurance that "the surface water management system" will not cause adverse quantity impacts. Saddlebrook's existing surface water management system has not caused a significant increase in the annual volume of runoff onto Wiregrass' property. The increase in the annual volume of runoff from Saddlebrook that has occurred over the pre-development 1973 condition has resulted from the urbanization of Saddlebrook's property. The increase in the annual volume of runoff from Saddlebrook over that existing prior to development (1973) is approximately 3.4 inches. This increase is only a small fraction of the natural year-to-year variation in runoff resulting from differences in rainfall alone. Rainfall can vary up to 30 inches on an annual basis, from 40 to 70 inches per year. The resulting year-to-year variations in runoff can total as much as 20 inches. The approximately 3.4 inches increase in the annual volume of runoff from Saddlebrook due to urbanization has caused no adverse impact to Wiregrass. The natural drainage system on the Wiregrass property has in the past and throughout its history received and handled increases in the annual volume of runoff of up to 20 inches due to rainfall differences. Such increases simply flow through Wiregrass' property. Of the approximately 3.4 inch increase in annual runoff due to urbanization, only approximately one-third of an inch is due to the filling in of bayheads by Saddlebrook's prior owner. This increase is insignificant and has not caused a substantial adverse impact to Wiregrass. Any reduction of storage resulting from the filling of bayheads will be more than compensated for under the proposed redesign. Storage on Saddlebrook's property will be increased by approximately 35 percent under the proposed condition over that existing in 1973, before the bayheads were filled. In open drainage basins, like Saddlebrook's, downstream flooding is a function of the rate of peak flow of discharge, not the annual volume of runoff. This is one of the reasons why, in the case of open drainage basins, SWFWMD regulates peak flow discharges and not the annual volume of runoff. Because Saddlebrook's proposed redesign will attenuate peak flow discharges to those levels that existed in the pre-devlopment 1973 condition, Saddlebrook has provided reasonable assurance that there will not be increased flooding on Wiregrass' property in the future. The evidence does not establish that Wiregrass has suffered, or will suffer, any adverse impact due to an increase in the annual volume of runoff from Saddlebrook as a result of the design, or redesign, of the system, or as a result of urbanization, or otherwise. It is not possible to design a surface water management system at Saddlebrook that would reduce the annual volume of runoff. Such a system, which involves the percolation of surface water from retention ponds into a deeper, aquifer system, requires a deep water table. At Saddlebrook, the water table is near the ground surface. As a result, it is not possible to store a significant quantity of water in retention ponds between storm events. In addition, the water levels in the deeper and the shallower aquifer systems at Saddlebrook are approximately the same and, therefore, there is insufficient hydraulic pressure to push the water through the confining layer between the two systems and into the deeper aquifer system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order granting Saddlebrook's application for surface water management permit no. 497318.00, subject to the terms and conditions in the SWFWMD Staff Report. RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3658 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Accepted and incorporated to the extent not subordinate or unnecessary. 7.-9. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. 12.-13. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but not necessary. The extent of the wetland expansion is rejected as not proven and contrary to the greater weight of the evidence. The rest is accepted. However, the increased volume is due in large part to urbanization, not to the surface water management system. It also is due in part to alterations to the property done by the Porters. Accepted but subordinate and unnecessary. Accepted. However, this would occur only during a 25-year, 24-hour storm event, and there was no evidence that one has occurred or, if it has, whether Mr. Porter was there to observe it. 18.-20. Accepted but subordinate and unnecessary. Characterization "much of" is rejected as not proven and contrary to the greater weight of the evidence. Otherwise, accepted but subordinate and unnecessary. Accepted and incorporated. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence. Rejected as not proven and contrary to the greater weight of the evidence that lichen lines, by themselves, are ordinarily are sufficient to set jurisdictional lines. 26.-29. Rejected as not proven and contrary to the greater weight of the evidence. Even if it were proven that the wetlands had expanded, it was not proven, and is contrary to the greater weight of the evidence, that Saddlebrook (and, especially, Saddlebrook's surface water management system) caused the expansion. First sentence, accepted but cumulative. The rest is rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. In any event, both factors are undeniably significant. 32.-34. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. 39.-41. Rejected as not proven and contrary to the greater weight of the evidence that SWFWMD does not apply it. The evidence was that SWFWMD interprets it differently than Wiregrass proposes and applies its own interpretation. Under the SWFWMD interpretation, the permit conditions requiring compliance with other legal requirements constitute the necessary "reasonable assurance." In addition, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and the Pasco County ordinance has been considered as part of this proceeding. Rejected as not proven and contrary to the greater weight of the evidence. Again, SWFWMD's review and evaluation is not complete until this formal administrative proceeding is completed, and annual volume has been considered as part of this proceeding. That consideration has affirmed SWFWMD's position that, at least in this case, the proposed stormwater management system does not cause an increase in annual volume that would result in denial of the application. Accepted but subordinate and unnecessary. Rejected as not proven and contrary to the greater weight of the evidence. First sentence, accepted (although the characterization "far exceed" is imprecise) and incorporated. Second sentence, rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary that no "stipulation" was entered into. But the evidence is clear that Wiregrass, Saddlebrook and SWFWMD all agreed to the use of 1973 as the point of comparison for peak flow discharges. Rejected as not proven and contrary to the greater weight of the evidence. Accepted but subordinate and unnecessary. Respondents' Proposed Findings of Fact. The proposed findings of fact contained in the Proposed Recommended Order of Respondents Saddlebrook Resorts, Inc., and Southwest Florida Water Management District are accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Douglas P. Manson, Esquire Foley & Lardner 101 East Kennedy Boulevard Suite 3650 Tampa, Florida 33602 Stephen R. Patton, Esquire Jeffrey A. Hall, Esquire Kirkland & Ellis East Randolph Drive Chicago, Illinois 60601 Enola T. Brown, Esquire Lawson, McWhirter, Grandoff & Reeves East Kennedy Boulevard Suite 800 Post Office Box 3350 Tampa, Florida 33601-3350 Mark F. Lapp, Esquire Edward Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in this case is whether the Department of Environmental Regulation (Department) should issue permit number 1C53-154132 to the applicant, IMC Fertilizer, Inc. (IMCF), for the modification of an existing industrial wastewater management system by constructing additional phosphogypsum storage capacity, or whether the permit should be denied as maintained by Manasota- 88 (Petitioner).
Findings Of Fact The Parties IMCF is a Delaware Corporation properly registered to conduct business in the State of Florida, which owns real property known as the New Wales Chemical Complex located in western Polk County, Florida, approximately 5 miles southwest of Mulberry, l mile south of State Road 640, and east of the Hillsborough-Polk County line. The New Wales Chemical Complex began operations in April, 1975, and consists of approximately 1600 acres which are located within a 17,000 acre tract owned by IMCF known as the "Kingsford Mine". Generally, the distance from the New Wales Complex boundary to the Kings ford Mine property boundary is from one to two miles. IMCF produces phosphoric acid and other phosphate-related products, including animal feed ingredients, and stores the by-product called phosphogypsum within a gypsum stack or pile. The Department is the administrative agency of the State of Florida having the power and duty to control and prohibit pollution of air and water in accordance with Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. The Department has the authority to consider and act upon the permit application at issue in this case. Petitioner is a public interest environmental protection organization incorporated under the laws of the State of Florida as a not-for-profit corporation, is headquartered in Palmetto, Florida, and is a citizen of the State of Florida for purposes of Section 403.412(5), Florida Statutes. Petitioner has standing to maintain this action. The Application Process On or about August 31, 1988, IMCF filed with the Department an application for a permit to modify its industrial wastewater management system at the New Wales Complex by constructing additional phosphogypsum storage capacity. This permit application was assigned file number 1C53-154132. The Department requested additional information from IMCF concerning this initial application on or about September 29, 1988 and December 16, 1988, and IMCF timely responded on each occasion. On or about July 3, 1989, IMCF submitted an application supplement to the Department which substantially changed the nature and scope of its original application. The project proposed by IMCF for which it has sought the permit at issue in this proceeding is described and set forth in this supplement to IMCF's original application. The Department requested additional information concerning this application supplement on or about August 2, 1989, to which IMCF timely responded. On or about November 6, 1989, the Department filed its Intent to Issue permit number 1C53-154132, and thereafter, Petitioner timely instituted this action to challenge the issuance of this permit to IMCF. The Existing Operation At its New Wales Chemical Complex, IMCF operates sulfuric acid and phosphoric acid plants, granulated triple superphosphate and granulated ammonium phosphate plants, and a uranium recovery plant. The primary raw materials used at the New Wales Complex are sulfur and phosphate rock. Sulfur is used to produce sulfuric acid, which is then used to react with phosphate rock that has been mined by IMCF. This reaction produces phosphoric acid which is then further processed into fertilizer products and animal feed ingredients. Phosphogypsum or gypsum is a byproduct from the production of phosphoric acid. Approximately five tons of gypsum are produced for every ton of phosphoric acid which is produced. Gypsum is slurried and transported to an existing gypsum stack where it is allowed to settle in settling compartments. IMCF's existing gypsum stack is approximately 132 feet high, and it is reasonably estimated that it will reach its maximum useful height of 200 feet by May, 1992, at IMCF's current phosphoric acid production rate of 1.7 million tons per year, which results in approximately 8.5 million tons of gypsum per year. As the gypsum stack grows in height, the surface area on top of the stack that is available for gypsum deposition and management decreases, and at approximately 200 feet above ground surface there will be insufficient retention time for the slurried gypsum to settle out and to be used in continued construction of the stack. Therefore, when IMCF's existing stack reaches 200 feet in height, operations at the New Wales Complex will have to cease unless an alternative gypsum storage location is authorized through the issuance of the permit sought in this proceeding. The existing gypsum stack is unlined. In addition to the storage and management of gypsum, the existing gypsum stack at the New Wales Complex is also used to store rainfall that may fall on the stack and cooling pond. This storage capability allows IMCF to avoid discharging pond water to the surface waters of the State during heavy or extended rainfalls. During low rainfall periods, stored rainwater can be used to supplement pond water, and thereby reduce IMCF's need to pump fresh water from the aquifer to meet its cooling and scrubbing needs. Additionally, during the hot summer months, the area on top of the stack is also used for cooling purposes. A cooling pond approximately 247 acres in size is located to the immediate south of the existing stack, with additional cooling channels encircling the stack on its remaining three sides. This existing, unlined cooling system encompasses a total of approximately 281 acres, and recirculates approximately 150,000 to 170,000 gallons of water per minute through this entire cooling system and back to IMCF's production plants for reuse. Approximately twelve uncapped recharge wells, each eight inches in diameter, were drilled in the area under the cooling pond during mining operations. These recharge wells were broken off during mining operations, and it is estimated that these wells have been filled to the top of the confining layer above the Floridan aquifer by sand and debris. The production of fertilizers generates heat which must be dissipated through cooling, and gasses which must be cleaned by "scrubbing" them with water. IMCF's cooling system at the New Wales Complex carries out these cooling and scrubbing functions. Pond water is used to transport gypsum in slurry from the phosphoric acid plant to the top of the gypsum stack, where it is directed to one of three settling compartments on the top of the stack. Settled gypsum is periodically dredged out, and used to build up the diked area around the edges of the stack. The slurry water is then decanted to the perimeter ditch and returned to circulation. Waters collected at the New Wales Complex which do not come in contact with fertilizer products or raw materials are collected on the site and directed to an impoundment area referred to as "A-11" for recirculation and reuse in the plant. Excess noncontact water may be periodically released to the Kings ford Mine recirculating system during heavy or extended rainfall, and is managed separately from pond water. A 90 acre emergency holding pond is located to the west of the cooling pond and to the south of the production facility. However, IMCF has never had to discharge excess pond water into this emergency area. This emergency holding pond is unlined. IMCF's existing facility is a zero discharge to surface water facility. Other phosphate companies discharge pond waters to surface waters after treatment with calcium oxide or calcium carbonate. This existing facility can also store, without surface water discharge, rainfall and other waters in excess of Departmental and federal effluent guidelines Because IMCF's existing, unlined gypsum stack and cooling pond system release some seepage to the ground water, on or about September 8, 1989, IMCF and the Department executed a Consent Agreement in OGC Case Number 89-0657 pertaining to the operation of the existing gypsum stack and cooling pond, which states in pertinent part: Cooling pond water on the Site contains concen- trations of various constituents in excess of primary drinking water standards. (Finding 4) Contaminant concentrations in groundwater samples collected from the surficial aquifer and the uppermost segment of the intermediate aquifer system at certain locations on the Site are elevated with respect to unaffected groundwater quality. Monitoring well SA-4 . . . is located approximately 400 feet from the cooling pond channel and has indicated concentration levels of certain constituents in excess of primary and secondary drinking water standards . . . Analyses from monitoring well SA-6, located 1600 feet downgradient from well SA-4, have recently indicated sulfate and TDS concentra- tion levels slightly exceeding secondary drinking water standards. Therefore, the vertical and horizontal extent of groundwater contamination and the rate and direction of contaminant transport in groundwater require additional evaluation. (Finding 5) Some evidence indicates elevated contaminant concentrations above background levels in groundwater samples collected from one of seven monitoring wells that draw water from the lower segment of the intermediate aquifer system in a location adjacent to and down- gradient from the cooling pond. Therefore, additional evaluation of the potential impact of abandoned recharge wells underlying the cooling pond is required. (Finding 6) IMCF has collected ground water quality data pursuant to the requirements of Ground Water Monitoring Plan Permit No. MP53-75181, currently in effect, as well as data in connection with this expansion project. This data indicates that two monitoring wells have been impacted by seepage from the existing gypsum stack. Well No. NWC-2-S2A, located approximately 400 feet to the west of the edge of the gypsum stack, contains ground water with elevated levels of sodium in excess of concentrations set forth in applicable ground water quality rules, and has recorded sulfate levels which exceed standards. Well No. SA-4, located approximately 700 feet west of the existing stack, reflects concentrations of sodium, gross alpha, and radium-226 in excess of concentration limits set forth in applicable rules, and has also recorded exceedences for sulfate, total dissolved solids and iron. These two wells are located within the New Wales Complex, and draw water from the upper portion of the intermediate aquifer, probably being impacted by seepage from the stack westward through this zone. In addition, data collected from IMCF monitoring well NWC-5-I4A, located immediately west of, and adjacent to, the cooling pond, show elevated levels of temporary dissolved solids, arsenic, sulfate and sodium above background levels, although the sodium concentrations do not exceed the maximum concentration limits set forth in applicable Departmental ground water quality standards. This well draws water from the major producing zone of the intermediate aquifer system. Finally, water quality impacts are shown as a result of analysis of ground water samples taken from three other wells at the New Wales Complex, wells NWC-2-S1 and NWC-2-SIA which draw water from the surficial aquifer, and well SA-6 which draws water from the uppermost portion of the intermediate aquifer system. However, based upon the evidence and analysis presented by Dr. John Garlanger, who was accepted as an expert in ground water quality impact assessment, and notwithstanding the contrary opinion expressed by Steven R. Boyes, who was accepted as an expert in hydrogeology, it is likely that these impacts come from a source other than the gypsum stack. Based in part upon the findings set forth above, the Consent Agreement provides that IMCF will implement a series of stated corrective actions, including additional monitoring activities, and that IMCF will evaluate pertinent primary and secondary drinking water standard constituents in all potentially affected aquifers within, and/or beyond, its zone of discharge. Once this is done, IMCF may be required to evaluate various remedial action alternatives, and to ultimately implement a remedial action plan. The Consent Agreement also authorizes IMCF to install a slurry wall to the north and northeast of the existing stack to limit any seepage in that area. IMCF has committed to the Department that if ground water quality monitoring indicates significant contamination is approaching the limits of the IMCF production plant, it will also install a slurry wall along the western edge of the plant in order to intercept any such contamination in the surficial and upper intermediate aquifer systems and contain it within IMCF's property. Dr. Garlanger performed a modeling analysis concerning the impact of the existing cooling pond and stack upon the water quality of the major producing zone of the intermediate or Floridan aquifer, given that these existing facilities will not be closed, but will remain in use in connection with the new stack for an additional twenty years beyond 1992. Based upon that analysis, it is found that any seepage through the upper confining unit from either the existing stack or pond would not cause a violation of primary or secondary drinking water quality standards. In addition, even if the twelve recharge wells underlying the cooling pond area were each leaking at the rate of one gallon per minute, which was shown to be an overestimate of any reasonable leakage rate, Dr. Garlanger concluded that insignificant impacts would result in the major producing zone of the intermediate and Floridan aquifer systems. The precise vertical or downward extent of the zone of discharge has not yet been determined for the New Wales Complex, although a zone of discharge horizontally to the IMCF property line has been established. However, the Department has reasonably concluded that the water quality impacts at the site resulting from the existing stack and cooling pond, referred to above, are not violations of IMCF's current permit, or of applicable rules and standards. The Department does not currently have sufficient information to determine what, if any, remedial action would be appropriate for impacts resulting from the existing stack and cooling pond, but this information will be developed pursuant to the Consent Agreement. The Department has not ruled out any eventual remedial action alternative, including closure of the existing gypsum stack. The Proposed Project IMCF proposes to construct an additional 415 acres of gypsum storage capacity, including permimeter ditching, in a total project area of 520 acres which will be located immediately south of, and adjacent to, the existing cooling pond that is used in connection with the existing gypsum stack or pile. It is reasonably estimated that this new stack will be in operation for twenty years. A 60-mil high density polyethylene liner is to be installed over the entire base area, and the upstream slope of the perimeter dikes. The proposed liner will be chemically and physically compatible with conditions that will be encountered in the expanded gypsum stack area, and will be of sufficient strength to prevent failure during installation and operation. Textured liner material will be used around the outer edges of the stack area underlying the projected stack slope, while smooth material will be used under the remainder of the stack. The textured material provides an additional safety factor to prevent slope stability failure. IMCF's proposed gypsum stack is designed with a factor of safety significantly greater than that which is provided in other stack projects. The liner material will be delivered to the site in sheets which will be rolled out on site, overlapped, and bonded with adjacent sheets using an extrusion-fusion welding process. IMCF will follow an extensive quality assurance and control program to insure that the contractor installing the liner follows all required procedures, including inspections and evaluations, random destructive testing, and vacuum testing of every inch of liner welds. Three concentric rings of perimeter gravel drains with polyethyline collector pipes will be installed over the liner and beneath the projected slope of the gypsum stack in order to reduce the hydraulic head on the liner and improve the stability of the stack. The materials used in the drain system will be compatible with the environment which they will encounter in the gypsum stack. IMCF proposes to separate the existing cooling pond and the proposed new gypsum stack with a 2.5 foot thick soil-bentonite slurry wall constructed along and within the entire length of the northern perimeter dike of the expansion area, and keyed approximately 30 feet into the underlying bedrock- bedclay complex. This slurry wall will provide a barrier to lateral seepage from the existing cooling pond into the expansion area, and will effectively function as a vertical liner. Materials used to construct the slurry wall will not be adversely impacted by seepage from the cooling pond. Two culverts for routing the seepage, runoff and decant water from the gypsum stack perimeter collection ditch into the existing cooling pond are to be installed. An additional syphon spillway is to be constructed at the southwest corner of the existing cooling pond and directed into the emergency holding pond. There is no proposal to cap the twelve uncapped recharge wells located under the existing cooling pond. The existing cooling and emergency holding pond will remain in operation with the new proposed gypsum stack. Gypsum will be slurried by pipeline from the phosphoric acid plant to the proposed new stack after its completion, where it will be managed in a manner similar to that practiced on the currently operating stack. The transport water will be returned to the cooling pond system for recirculation. IMCF proposes to use the top of the existing stack for the storage of rainfall and for cooling purposes during times of excessive heat. The geology of the gypsum stack expansion project site is appropriate and suitable for this proposed use, as established through an evaluation of regional and site-specific information, including prospecting data collected by IMCF prior to mining this area and geophysical logging information from wells that have been installed in the area. Site-specific geological tests performed by IMCF included the drilling and evaluation of five core holes around the area of the expansion project, and evaluation of the geological conditions encountered during the drilling of thirty-one ground water monitoring-wells installed in the vicinity of the proposed project area, and an evaluation of soil borings taken from within the project site. Surface depressions and lineaments shown on pre-mining aerial photographs of the area were also evaluated. The physical evaluation and examination of the former locations of surface depressions was conducted, as was a sinkhole probability assessment. The hydrogeology underlying the site of the proposed expansion area does not contain any features which would adversely affect the siting of the expanded stack in this proposed location. There are three major aquifer systems underlying the proposed project area, including the surficial, intermediate and Floridan aquifer system. The surficial aquifer, extending from the top of the water table to a depth of approximately 60 feet, contains overburden and sands that have replaced the original "matrix" formation of phosphate ore which has been mined. The intermediate aquifer system underlies the surficial aquifer, with its upper portion having very low permeability, extending approximately 125 feet in thickness, and containing some water bearing zones which are not laterally continuous in the project area. The major producing zone, consisting of sandy limestone material, is located in the lower portion of the intermediate aquifer. There is a confining unit approximately ten feet in thickness, known as the "Tampa clay", at the very bottom of the intermediate aquifer, separating it from the Floridan aquifer. The Floridan aquifer system is a highly productive limestone aquifer, several hundred feet in thickness, that is the primary source of municipal drinking water and industrial water supplies in the area. The preparation of the site will begin with the removal of various materials deposited in the area during mining operations which have already taken place, and the diversion of surface water from the area. The site will be dewatered by allowing water to flow from the site into other mined-out portions of the Kingsford Mine further to the south. This dewatering process will not discharge any water to the waters of the State. After dewatering, the site will be graded to remove any materials that could potentially puncture the liner. The presence of existing wells in the project site will also be addressed by IMCF as part of its site preparation activities. Thirty-eight wells were previously installed in the project area, thirty-three of which were recharge wells that were used to drain water from the surficial aquifer system down to lower aquifer systems prior to mining. Twenty of these wells have been physically located, and IMCF will insure that these wells are abandoned and plugged in accordance with currently applicable regulatory requirements. The remaining eighteen wells in the project area cannot be physically located and plugged because they have been destroyed or otherwise impacted by mining operations. IMCF will install circular concrete caps, three feet in thickness and of varying diameters, over the former locations of these wells which have been determined using an analysis and evaluation of historical surveys and aerial photography, as well as computer modeling. It was established through the testimony of Richard Fountain and Dr. Nadim Fuleihan, who were accepted as experts in geological evaluation and consultation, and civil and geotechnical engineering, respectively, that these caps will reliably encompass the locations of these eighteen former wells, and will, further, maintain the structural integrity and stability of the lined gypsum stack. IMCF has provided reasonable assurances to the Department that the construction and operation of the proposed additional gypsum stack will not result in discharges that will cause pollution in violation of statutory provisions or Departmental rules or standards designed to protect surface and ground water quality. As discussed elsewhere herein, IMCF will include an extensive groundwater quality containment/protection system in this project, the essential elements of which include the slurry wall, synthetic liner and underdrain system. Surface waters will not be adversely affected by dewatering of the project area prior to construction, nor by rainfall that strikes disturbed areas during construction due to the diversion of such waters into the Kings ford Mine water recirculation system, thereby preventing direct discharge to surface waters of the State. Construction of the new gypsum stack will increase the area at the New Wales Complex that will catch rainfall and direct it towards the pond water recirculation system. However, based on the evidence presented by Dr. Fuleihan, even under extreme rainfall conditions there is a very low probability that IMCF would have to discharge pond water from the emergency holding pond, and even under this unlikely condition, IMCF has the capability of implementing a program to treat and reuse pond water in its production processes, and will not have to discharge pond water to surface waters of the State. The proposed one layer synthetic liner which IMCF will install with the new stack can reasonably be expected to prevent pollution of the ground water which would violate applicable statutory provisions, rules or standards. It was established through the testimony and evidence presented on behalf of IMCF, and particularly the evidence presented by Dr. Fuleihan, that the proposed liner to be used by IMCF is at least five times more protective (less permeable) than clay liners, and eight times more protective (less permeable) than the design liner which would be required by the Department's policy statement concerning the lining of gypsum stack expansion projects. This project will essentially involve zero discharge to ground water due to the extremely low permeability of the liner material. Based upon the testimony of Dr. Garlanger, any impacts reasonably expected to occur through liner seepage and defects would not result in an exceedence of applicable primary drinking water quality standards at the base of the surficial aquifer underlying the gypsum stack expansion area. No impacts at all were projected at any point lateral to the edge of the gypsum stack expansion area. In accordance with the terms of the permit the Department proposes to issue, IMCF will be required to monitor ground water quality in order to demonstrate compliance with all applicable standards. IMCF has provided reasonable assurance that it can locate and cap all uncapped recharge wells in the project area, and has proposed a method for capping such wells which is appropriate, and which can reasonably be expected to be effective in preventing the intrusion of pollutants into the ground water through these presently uncapped recharge wells.
Recommendation Based upon the foregoing, it is recommended that Department enter a Final Order approving IMCF's permit application and issuing permit number 1C53-154132. DONE AND ENTERED this 23rd day of May, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1990. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's Proposed Findings of Fact: 1-5 Preliminary matters which are not proposed findings. Adopted in Findings 4, 6, 8, 24-28. Adopted in Findings 3, 8. Statement of issues and not a proposed finding. 9-10 Adopted in Finding 11, but otherwise Rejected as unnecessary and immaterial. Adopted in Finding 15. Rejected as immaterial and unnecessary. 14-15 Adopted in Finding 16. Adopted in Findings 1, 11. Adopted in Finding 11, but otherwise Rejected as immaterial and unnecessary. Adopted in Findings 13, 34. Adopted in Finding 13. Rejected in Finding 22 and otherwise as not based on competent substantial evidence. Adopted in Finding 29. 22-23 Adopted and Rejected in part in Findings 34, 37. 24-31 Adopted and Rejected in part in Findings 18-20, and otherwise Rejected as immaterial and unnecessary. 32 Rejected as not based on competent substantial evidence. 33-34 Adopted in Finding 23, but otherwise Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Finding 19, but Rejected in Finding 22 and as not based on competent substantial evidence. Adopted in Findings 24, 29, 30. Rejected as irrelevant. 38-39 Adopted in Finding 11. Adopted in Finding 24, but otherwise Rejected as immaterial and unnecessary. Adopted in Finding 29, but otherwise Rejected as speculative and not based on competent substantial evidence. Rejected in Finding 36, and otherwise as immaterial. Adopted in Finding 36, but otherwise Rejected as immaterial and as a conclusion of law. Rejected in Finding 35. Rejected as not based on competent substantial evidence, and without citation to the record as required by Rule 221-6.031(3). Rejected in Findings 21-23 and 35-37. Rejected as not based on competent substantial evidence and as a conclusion of law. Adopted in Finding 17. Adopted in Findings 21 and 23, but otherwise Rejected as without citation to the record. Rejected as not based on competent substantial evidence and without citation to the record. Rejected as a conclusion of law. 52-53 Rejected as immaterial since the circumstances of the Gardinier permit differ significantly from the facts in this case. 54 Rejected as not based on competent substantial evidence and as immaterial. There was no explication of any nonrule policy which requires closure of an existing stack. 55-56 Rejected as immaterial. 57-58 Rejected as not based on competent substantial evidence and as a conclusion of law. 59-60 Rejected as a conclusion of law and without citation to the record. Rejected as immaterial and not based on competent substantial evidence. Rejected as simply argument rather than a finding of fact. Rejected as an incorrect conclusion of law. 64-68 Rejected as immaterial, not based on competent substantial evidence, and without citation to the record. Rulings on the Department's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4-5 Adopted in Findings 13, 14. 6-7 Adopted in Finding 12. 8 Adopted in Findings 24, 30. 9 Adopted in Finding 31. 10 Adopted in Finding 32. 11 Adopted in Finding 33. 12-13 Adopted in Finding 34. 14 Adopted in Finding 35. 15 Adopted in Finding 28. 16-17 Adopted in Finding 25. 18 Adopted in Finding 26. 19 Adopted in Finding 27. 20-22 Adopted in Finding 36. Adopted in Findings 14, 35. Adopted in Findings 1, 11, 13, 17. Adopted in Finding 18. Adopted in Finding 19. Adopted in Finding 20. 28-29 Adopted in Finding 21. 30 Adopted in Finding 22. 31-32 Adopted in Finding 23. Rulings on IMCF's Proposed Findings of Fact: 1 Adopted in Finding 1. 2 Adopted in Finding 9. 3 Adopted in Finding 10. 4 Adopted in Finding 13, 14. 5-6 Adopted in Finding 12. 7 8 Adopted in immaterial. Adopted in Finding Finding 4, but otherwise 6. Rejected as 9 Adopted in Finding 8. 10 Adopted in Findings 24, 30. 11 Adopted in Finding 31. 12 Adopted in Finding 32. 13 Adopted in Finding 33. 14-18 Adopted in Finding 34. 19 Adopted in Finding 35. 20 Adopted in Finding 28. 21-22 Adopted in Finding 25. 23 Adopted in Finding 26. 24 Adopted in Finding 27. 25-27 Adopted in Finding 36. 28-29 Adopted in Findings 14, 35. 30 Adopted in Findings 35, 36. 31 Adopted in Findings 1, 11, 13, 17. 32 Adopted in Finding 18. 33 Adopted in Finding 19. 34 Adopted in Finding 20. 35-36 Adopted in Finding 21. 37 Adopted in Finding 22. 38-39 Adopted in Finding 23. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, FL 33701 Richard T. Donelan, Jr., Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Robert L. Rhodes, Jr., Esquire Lynda L. Goodgame, Esquire P. O. Drawer 810 Tallahassee, FL 32302 Daniel H. Thompson, Esquire General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD) The Authority is a nonprofit five-member interlocal entity created in 1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of planning, designing and operating new sources of water supply to governmental entities in Pasco, Pinellas and Hillsborough Counties. Its members include the Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg and Tampa. The City of New Port Richey also has a seat on the Authority Board. The Authority's revenues are presently derived entirely from the sale of water to its customers. It owns and/or operates five wellfields, some of which are connected by a water transmission pipeline to each other and to wellfields operated or owned by Pinellas County and the City of St. Petersburg. In 1984, the Authority supplied approximately 74 million gallons per day (mgd) to its customers and held consumptive use permits (CUPs) for a total of 94 mgd average and 144 mgd peak or maximum. The Authority anticipates that it will serve approximately 800,000 people in the year 1985. Its master plan, which was last updated in 1982, projects future water demands through 1995 and identifies alternative sources of supply to satisfy those demands. One of the wellfields presently operated by the Authority is the Starkey Wellfield located in Pasco County. The Starkey Wellfield property, located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest Florida Water Management District (District) over a period of years beginning in the early 1970's. There are two remaining parcels which the District has contracted to acquire in 1985 and 1986. These parcels will be acquired under the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The various contracts between the District and the Starkey family contain restrictive covenants which require that "the land remain, as nearly as practicable, in its natural state" and that water withdrawals be restricted so that they "do not substantially and/or permanently damage the lands adjacent to the area." In 1981, the District granted the Authority an exclusive license to operate a wellfield on the Starkey property provided that it maintain the wellfield "as nearly as practicable in its natural state." All cater produced from the property is to be for the water supply needs of the City of New Port Richey and Pasco County, except that those entities can authorize the sale of surplus water. Prior to the Authority's involvement with the Starkey Wellfield, the City of New Port Richey planned and constructed water supply facilities at the extreme western portion of the wellfield. Four wells were originally permitted for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco County as a co-applicant, the permit was modified to provide for increased withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented due to contractual problems between the City and the County. Then, in December of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a Water Transfer and Management Agreement and a Water Supply Agreement, the City of New Port Richey's four existing wells were transferred to the Authority and the Authority was authorized to construct additional wells and sell the water to the City and Pasco County. As noted above, any surplus water could be sold to others. These agreements have a term of 35 years, with an option of a 35-year renewal period. If the agreements are terminated, the facilities are to revert back to the City of New Port Richey and Pasco County. In 1982, the Authority, the City of New Port Richey and Pasco County obtained the present CUP authorizing the construction and operation of a total of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten presently operating wells have the capacity to produce 22 mgd. The financing arrangements for the construction of the Starkey Wellfield are not sufficient to complete construction. There is a shortfall of about $720,000, which the Authority plans to make up in revenues from the facility. On December 20, 1983, the Authority, with the City of New Port Richey and Pasco County as co-applicants, applied to the District for a modification of the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11 mgd average and 21 mgd maximum. At the time, the Authority believed that the increases were justified by the projected water demands of the City and Pasco County. In preparing its water supply plan submitted to the District on March 1, 1984, the Authority determined that it would be feasible to interconnect the Starkey Wellfield with the Cypress Creek pipeline and other major production facilities. In order to finance this pipeline interconnection and again believing that there was sufficient demand in Pasco County and the City of New Port Richey to justify increased withdrawals, the Authority, along with the City and the County, amended the application to modify their CUP on March 23, 1984. This amendment sought average annual withdrawals of 15 mgd and maximum daily withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have not yet been constructed. Between 1971 and 1982, five pump tests have been performed at the Starkey Wellfield, and monitor wells are installed throughout the property. Except for the northwest corner of the property, existing withdrawals have not changed the natural condition of the property. Utilizing these various tests and monitoring results to predict the hydrologic effects of the Authority's proposed increased withdrawals, the District found that the potentiometric drawdown and the water table drawdown at the requested rates would each increase to almost twice the drawdown at the currently permitted rates. The withdrawal of water will cause the level of the potentiometric surface to be lowered more than five feet outside the northern and southern boundaries of the Starkey Wellfield property. The one-foot water table drawdown anticipated from the increased withdrawals could have an adverse effect upon lands immediately adjacent to the north and west. Likewise, this one foot water table drawdown could cause adverse ecological effects on forests and wetlands within the Starkey Wellfield properties. Approximately 40 percent of the Starkey property is high quality wetlands. In June of 1984, a three-day field validation multi-pump test was performed for the Authority. These test results were not available to the District at the time it performed its evaluation. The June tests showed aquifer characteristics different than those previously thought to exist. A much higher transmissivity level was found and the differing leakance values throughout the property demonstrated that the aquifer beneath the Starkey Wellfield is not homogenous. A higher transmissivity level decreases the extent of potentiometric surface drawdown. After substituting the new aquifer characteristics found from the June pump tests, the Authority's computer modeling demonstrates no violation of District hydrologic rules with respect to potentiometric surface and water table drawdowns at the increased level of withdrawals. The Authority's ecologist did not feel that the increased withdrawals would adversely affect natural conditions on the Starkey property, stating that a one-foot water table drawdown is well within the adaptive range of wetland vegetation. In addition, the Authority will maintain its existing ecological monitoring plan on site. The District has not established regulatory levels for the rate of flow of streams or other water courses, for the potentiometric surface or for the surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on the property indicate that there has been no increase in chloride concentrations. Increased withdrawals are not expected to induce saltwater encroachment. If it is found that the potentiometric surface at the Starkey property boundary is lowered more than five feet, an alternative pumping schedule can be put into effect to prevent that occurrence. The pattern of production can be changed by shifting to different wells during the dry season. Increased withdrawals will not lower off-site water tables, lakes or other impoundments by more than one foot, and the potentiometric surface will not be lowered below sea level. The Authority's proposed consumptive use of 15 mgd average would withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains 5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres. Its present permitted withdrawals average more than 1,000 gallons per acre per day. The Authority's proposed increased withdrawals will not interfere with any presently existing legal use of water. BEXLEY (CENTRAL PASCO WELLFIELD) Bexley owns 14,510 acres of land in Pasco County located immediately east of the Starkey Wellfield. The land contains improved pasture, crops, planted pine and some cypress heads and ponds. He presently holds a CUP authorizing a combined average annual withdrawal of 2,416,000 gallons per day with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are permitted for agricultural irrigation purposes and come from five wells. In August of 1983, Bexley entered into a contract with Pasco County. The contract requires Bexley to produce and supply to Pasco County an average of 9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the exclusive right to purchase these amounts and, indeed, must pay for the water made available, whether it is accepted or not. The term of the agreement between Bexley and the County is 33 years. Pursuant to his contract with Pasco County, Bexley applied to the District on December 21, 1983 to modify his existing CUP. A decrease in agricultural withdrawals was requested, as were five additional wells to produce 10.0 mgd average and 13.5 mgd maximum for Pasco County's public water supply. The five additional wells are to be located on 10,848 acres of land, to be known as the Central Pasco Wellfield, located within the 14,510 acres owned or controlled by Mr. Bexley. The modification would result in total (agricultural irrigation and public water supply use) withdrawals of 11,881,000 gallons per day annual average and 23,580,000 gallons per day maximum. In order to determine the anticipated hydrologic effect of the proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous studies of regional hydrogeology and other wellfields prepared by the District, the United States Geological Survey and private consultants. He also conducted a "slug test" and a single well pump test over a period of six days. The aquifer characteristics of the Bexley property were found to be within the range of values derived from other regional testing. Assuming an homogenous aquifer, these characteristics were used in computer modeling to predict the effect of increased withdrawals on and off the Bexley property. The five-foot potentiometric drawdown is confined to the Bexley property, as is the three-foot water table drawdown. The effects of any potentiometric surface and/or water table drawdowns on agricultural crops in the vicinity of the production wells can be offset by irrigation. No lake or other impoundment off-site will be lowered more than one foot. The proposed withdrawals will not cause the potentiometric surface to be lowered below sea level. Regulatory levels have not been established by the District for potentiometric surface, stream flows or surface water on the Bexley property. Although there was no deep monitor well testing done, salt water encroachment is not anticipated as a result of the proposed withdrawals. After an independent evaluation, the District staff also concluded that the proposed Bexley withdrawals would not violate the District's hydrologic rules. The proposed public water supply use of 10 mgd average from 10,848 acres will average 921.80 gallons per acre per day. The combined public supply and agricultural irrigation use of 11.8 mgd from 14,510 acres will average 818.78 gallons per acre per day. CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD) The City of Saint Petersburg owns and operates the South Pasco Wellfield, located on a 589 acre site to the south of the Bexley property. This wellfield has been in operation since 1973, and the City has a CUP to withdraw water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a public supply system. This CUP expires on September 1, 1992. The CUP requires the City to balance production from its South Pasco Wellfield equally with its two other well fields -- Section 21 and Cosme-Odessa. Among the terms and conditions of the CUP are that three regulatory wells be monitored so as not to cause the cumulative weekly average elevations of the potentiometric surface of the aquifer to be lower than the regulatory level set for each well. One of the regulatory wells is located on State Road 54, about 1.5 miles south of the Bexley southern property boundary. The regulatory level set for that well is that the potentiometric surface not be below 42.0 feet above mean sea level on a cumulative weekly average basis. On a noncumulative weekly average basis, the elevations may be 37.0 feet above mean sea level. Since 1974, average water levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to 49.4 feet. Bexley's proposed combined average withdrawals may cause a potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54 regulatory well. The City of Saint Petersburg presented evidence that if the City pumps at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8 mgd, the City will only be able to withdraw 14.1 mgd without violating the regulatory level for the State Road 54 well. However, this result was obtained by starting off with the normal water levels in the State Road 54 well as they existed in 1980-81, a particularly dry year, and then comparing them with the results obtained if Bexley were to pump its total combined average of 11.8 mgd. This methodology fails to take into account Bexley's permitted withdrawals of 2.4 mgd as they existed in 1980-81, and in effect, double-counted them by initially ignoring their impact on the 1980-81 water levels and adding them back in as a part of the new combined total. In addition, the exhibits and testimony offered by the City failed to demonstrate that the cumulative weekly average elevations would go below 42.0 feet if Bexley were pumping at its requested average rate. While the City of St. Petersburg did utilize its permitted average capacity in 1975, for the past five years it has averaged only between 10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if the regulatory level of the State Road 54 well were in jeopardy of violation, it would be possible to shift the pumpage among the eight production wells to counter such a result. The Bexley property is located approximately 3.5 miles from the center of pumpage at the South Pasco Wellfield. THE OTTO POTTBERG TRUST PROPERTY The Otto Pottberg Trust Property, owned by the Pottberg family since 1936, is comprised of 8,000 acres of land located immediately north of the Starkey Wellfield. The property is used for cattle grazing and a nursery operation, and wildlife on the property is abundant. The intervenor Pottberg has observed that since the operation of the well field began on the Starkey property, the cattle ponds on the Pottberg property dry up and vegetation and grasses are adversely affected during the dry seasons. He has observed a noticeable decline in all lake levels. He fears that increased withdrawals from the Starkey well field would diminish the use of his property for cattle grazing and nursery operations, would create a fire hazard and would adversely affect plant, animal and human life on his property. The Authority's experts found no surface drawdowns which would extend into the Pottberg property. The District determined that the potentiometric surface drawdown resulting from the proposed increased withdrawals from the Starkey Well field would exceed five feet on the northern boundary--thus extending into the property owned by the Otto Pottberg Trust. Likewise, the water table drawdown of one foot extends beyond the property at the northwest corner. However, there was no evidence that there are lakes on the Pottberg property at or near the northwest corner of the Starkey property, or that there is an existing CUP well on the Pottberg property in the area where the potentiometric surface drawdown exceeds five feet. PASCO COUNTY'S WATER DEMANDS AND SUPPLIES Pasco County is legally authorized and required to provide an adequate public water supply for its citizens. Based upon per capita use and estimates of population growth, the quantity of public supply water needed by Pasco County has been estimated by various experts as follows: YEAR AVERAGE MGD MAXIMUM MGD 1985 11.3 20.3 1986 12.3 1988 12.8 28.6 1990 16.4 29.5 1993 18.8 40.8 1995 21.8 39.5 2000 27.2 49.0 In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd for public water supply purposes. Pasco County has a contract right and obligation to purchase the following amounts of water produced by the Authority at the Starkey Wellfield: YEAR AVERAGE AND MAXIMUM MGD 1985 7 1986 6.7 1987 6.4 1988 6.1 1989 5.8 1990 and thereafter 5.5 The City of New Port Richey also has an allocated entitlement to the remaining amounts of water withdrawn from the Starkey Wellfield under its current permit. The Water Supply Agreement for the Starkey Well field recognizes that the City and County will have increasing water supply needs, and provides that they may, upon giving the Authority two years prior notice, increase their entitlement. The Pasco County Utility Department also has 13 CUPs covering public supply wells located on or near the coast. These CUPs, which were renewed in May of 1984 and expire in May of 1992, authorize a total withdrawal of 4.54 mgd average. The majority of these wells are located in coastal areas along and to the west of the 10-foot potentiometric surface contour near the saltwater- freshwater interface. Wells west of the 10-foot contour line generally have high chloride levels. The County has experienced inefficiency in operating some of these wells, and they are considered suitable mainly for fire control and peaking purposes. A condition of the 13 CUPs requires a proportionate, or gallon by gallon, decrease of average day withdrawals should Pasco County acquire another source of public water supply. Pinellas County is contractually obligated to provide Pasco County with up to 10 mgd upon demand. Pasco County controls how much water it will take from the Pinellas County water system. This water is produced by the Authority from other wellfields located within Pasco County, is purchased by Pinellas County and then is transported to Pinellas County. Upon request by Pasco County, the water is then transported back up north again to Pasco County. The water travels approximately 25 to 40 miles from Pasco County to Pinellas County and back to Pasco County. The Pinellas County water system has sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County does not currently utilize the full 10 mgd, partially because such use would currently present difficulties in fulfilling its contractual obligation or entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco Counties was not placed into evidence. No evidence was presented as to whether Pasco County is either able to or desires to eliminate or change its contract with Pinellas County. It was the position of the Pasco County Director of Public Works and Utilities that it would be more cost-effective to have an alternative source of public water supply. There was insufficient evidence produced at the hearing to determine if the Pinellas County water provided to Pasco County is more or less expensive than the rates presently charged by the Authority or by the contractual agreement between Bexley and Pasco County.
Findings Of Fact Petitioner in this matter is Victor T. Cheney, who owns the property in question described as Section 7, south quarter, southeast quarter of northwest quarter of Township 1 South, Range 19 Nest, located near Portland, Walton County, Florida. The property consists of approximately 15 acres and is located 300 to 400 feet south of State Road 20 in Walton County. Respondent is the State of Florida, Department of Environmental Regulation. Several years ago, Petitioner purchased considerable property located on either side of Goodwin Creek, a tributary of Alaqua Creek, which enters into Alaqua Bayou, which in turn empties into Choctawhatchee Bay, which itself enters into the Gulf of Mexico. The property in question was not a part of the original purchase. At some point in the not-too-distant past, Petitioner sold a portion of his property downstream from the instant property to a real estate developer for the purpose of residential subdivision. However, because of the fact that Goodwin Creek, over the years, has been blocked by numerous Beaver dams, the surrounding land has become waterlogged and did not afford reasonable access to the property previously sold for residential subdivision. As a result, Petitioner was forced to purchase the property in question here for the purpose of restoring the proper flow of Goodwin Creek by removal of the dams and draining of the swamp, thereby affording reasonable access to the downstream residential property. Petitioner's position is contained in three major thrusts: the first dealing with trees and forestation, the second dealing with water quality, and the third with the constitutionality of the DER action. The property in question, according to the Petitioner, was initially forestland. However, subsequent to World War II, because of the lumbering-off of what was once virgin forest, as evidenced by surveyors notes dating from 1848 and 1896, beavers were brought in by governmental agencies at Eglin Field during World War II to help control erosion problems. Because the beavers natural enemies, such as wildcats and alligators, have been reduced in number in later years to the point that they are no longer effective in maintaining the beaver population and because beavers proliferate quickly and are hard to control, the beaver population has gotten out of hand. The City of Fort Walton Beach has within recent years engaged in a war with the beavers because of the latters' incursion into the city limits and the destruction they have caused to trees within the city. Beavers, which build dams and flood the land, resulting in a die-off of first the pines and then the tupelos and other hardwoods, are the last attack on the virgin forests of northwest Florida. Other enemies which have taken their toll of the trees during the past years are lumbering, insects, disease and hurricanes. Petitioner wants to reforest the beaver area with loblolly and slash pine. These trees are the dominant forms necessary for a healthy ecosystem, and they provide food and shelter for various birds, some species of which have become extinct because of the loss of trees in the area. Other species are endangered, such as certain types of woodpeckers. Some species of birds need up to 100 acres per family in order to survive. Petitioner wants to plant trees that are productive clients for the local economy. Conifers are the most valuable wood product in this area; and in Petitioner's opinion, the best tree there is for the area in question is the pine tree. Petitioner contends that 20 percent of the land in Walton County, Florida, is in private hands, and the county is poor in forestland. There is too much hardwood, which is of poor quality, and not enough pine, and pine is what he intends to plant in the area if he is permitted to drain it. Turning to the area of water quality, Petitioner urges that the beaver activity has left Goodwin Creek stagnant, without clear headwaters. The area in question contains some SO acre feet of standing water. As a result of beaver activity, the area is plagued with silting, an invasion of saltwater and a putrefaction by sunshine in the summer, and a scum on top of the water. At the bottom of the water is a stinking white globular mass which lies below the freshwater on top. The beaver dams build up swamps behind them, not lakes. Goodwin Creek contains Class III waters which, according to Petitioner, must be maintained in a quality sufficient to sustain body contact (bathing and skiing) . These activities cannot be done in the water as it stands now. If permitted to drain the swamp and clear out the beaver dams, Mr. Cheney claims that the water quality will be improved, contra to the state claim that it would he degraded. He contends that the flushing action resulting from his clearing of the creek will clear and improve the water quality both there and downstream. The predominant fish in the water in the area now is the needlenose gar, which can live in the water as it is now. Those fish are a pest and have no food value. They eat better fish; and their eggs, according to Petitioner, are poisonous. The young gar eat fish that eat mosquito larvae. If the creek is cleared, the gar will clear out and better fish will return. Another purpose of clearing the creek would he to remove the threat to the road and the residential lots downstream because of the constant danger of road washout and the plugging of the drainage culvert by beavers. Removal of the beaver dams would reduce run-over flooding. Petitioner contends his desire is to remove the dams and clear the creek. Yet, the two drawings submitted with his Petition and Amended petition reflect considerably more than merely the clearing of dams. In the first drawing submitted, Petitioner proposed to dig a 30-foot-wide drainage ditch to a depth of 4 feet, running across a portion of the property, using the material excavated from the ditch to build up the area to the north of the ditch and west of the west branch of Goodwin Creek, thereafter planting 15,000 pine trees in the filled area. Petitioner offered no evidence in the form of water quality studies, or forester or reforestation reports from experts in the area. His evidence consisted primarily of newspaper articles, maps, photographs, historic documents and other documents submitted to him by the State. There was no hard evidence to support the allegations of benefit or the contentions as to forestation or water quality as contained in his narrative testimony which included, coincidentally, a rendering of Joyce Kilmer's poem "Trees." On the other hand, Respondent presented the testimony of Clifford S. Rohlke, a dredge and fill field inspector with a background in biology who for 9 years has made biological impact assessments on approximately 1,000 dredge and fill applications throughout the State. Mr. Rohlke was first brought into this case when Petitioner's original application was filed. He went out and looked at the site in section, meeting with Petitioner later, and together they walked the site for a second time. As a result of his inspection, he wrote the biological field report, which outlines the impact of the proposed project. He described the area as rural, floodplain land of the Alaqua Creek basin, which has been subject to numerous fill violations for housing adjacent to the bay and Little Alaqua and Goodwin Creeks. The creek basin in question regularly floods once or twice per year, and much of the land has standing water supporting cypress, tupelo hardwood swamp. The specific site is an inundated hardwood swamp. Overstory vegetation includes black gum, red maple and titi. Submerged and emerging vegetation includes various grasses, moss, water lily, dollar weed and duckweed. The proposed canal and its spoil areas are typically inundated with water In fact, the surface water sheet flows westward around numerous islands and buttresses through various small creek channels intermittently located throughout the wetland area. There is only one piece of upland property in Petitioner's entire parcel which is located to the south of the proposed project area. This particular portion is small and is isolated on three sides by the surrounding basin. As a result, Mr. Rohlke considered the area to be wetlands because of contiguous waters which run up to and flow into Goodwin Creek. There are pools and rivulets throughout the property. He saw three beaver dams, most of which had been breached already; and it is his contention that even if the dams are removed, the water will not dry up naturally because it is historically bona fide wetlands, a low, low area which could not be dried up without a lot of fill. Consequently, this evidence supports a finding that the area in question is in fact a historical wetland, was such before the advent of the beavers, and even the removal of the beaver dams would not radically change the nature of the property to convert it into uplands, thereby taking it outside the jurisdiction of the Respondent. Having thus concluded that the property in question is a historical wetland over which Respondent has jurisdiction, we then turn to the basis for denial by the Respondent of Petitioner's request. The letter of July 12, 1983, reflects as reasons for the intent to deny several factors. One is that he application is incomplete because the Department of Natural Resources has not Issued Its consent to the project. This is correct, though Petitioner contends he was advised by the Department of Natural Resources not to worry about it. A second is that the proposed evacuation and filling will result in violations of state water quality standards and criteria for such Items as bacteriological quality, biological integrity, pH, specific conductives, DO, BOD, nutrients and turbidity. Regarding she issue of bacteriological quality, because of the buildup of muck in standing water areas over the years, the rich muck contains silt, a good media for bacteria, including fecal bacteria, growth. Cutting into this silt will release much of this bacteria into the water downstream from the area of the cut. This in turn will raise the total coliform and fecal coliform bacteria count. In short, disturbing the area by digging would release the bacteria currently trapped in the bog area and the muck. Biological integrity deals with the number of species and the quantity of item per species in the area. Disruption of the natural habitat will vastly alter the biological integrity of this area and other areas downstream. Specifically and primarily, Mr. Rohlke was referring to such species as mayflies, dragonflies, worms, leeches and lesser organisms which would be disturbed and possibly removed, in the case of the lesser organisms, by the removal of the dirt. Not only would removal alter the biological balance, but so would the biological balance of the area where the removed dirt is placed. These minuscule organisms, even if not visible, are extremely important in the breakdown of this material and are important to the food chain:. Eliminating this block would put a big hole in the food chain. It has been the experience of Mr. Rohlke that artificial channels always lower the invertibrate life in the water; and as a result, the water quality goes down. This may not be catastrophic, per se, but there is a cumulative effect which manifests itself in a reduced production of seafood in the area, such as shrimp, oysters, trout and mullet, all of which are important sources of edible seafood. As to the pH, studies show that this pH balance is best when not altered more than one unit. Petitioner's property in question is of a type usually considered alkaline. Dredging would bring in acidic swamp water to mix with the alkaline surrounding water and would result in an alteration of more than one unit. The resulting impact would be adverse to the water quality. As to the question of specific conductives, saltwater has a conductive count of 30,000, freshwater of about 1,000. Stirring up the water by dredging would alter the specific conductives of saltwater and may result in a quick release of freshwater into the saltwater, thereby having a fatal effect on those microorganisms and macroorganisms which are dependent upon saltwater for life. In the area of dissolved oxygen (DO), when organic materials such as are found on the bottom of Petitioner's property are released, there is a strong probability that dissolved oxygen contained in the water will decrease. This would result in the death of fish and other organisms which use oxygen. There are many years of organic buildup on the bottom of the area to be dredged. This area is not a sandy bottom, and release of this organic buildup, with the resultant loss of dissolved oxygen, would be fatal to a large number of species in the ecosystem. Turning to the area of turbidity, which is the suspension of solid matter within the liquid (lack of clarity) the silt that would be stirred us as a result of the dredging, when suspended in the water, tends to suffocate fish and other life forms which breathe through water. This, in conjunction with lowered oxygen levels, creates a combination which is deadly to the many types of organisms. Not only does dredging have an immediate negative short-term impact, but it well may have a long-term impact, as well. The straight sides of a cut canal normally do not support growth which would strain out or hold silt carried by stormwater rushing through the canal. Also, since this is a silty, organic area rather than a clean, sandy bottom, the area is even worse. The turbidity curtain which Petitioner offered to ins tall downstream to curb the turbidity would be, in the opinion of Respondent, ineffective in a stream of flowing water. In considering the validity of Mr. Rohlke's evidence, as outlined above, however, one must consider that he did not take any water samples, did not check for any types of fish, did not take any samples of marine biology, but basically based his opinion and analysis on no more than a walk through the area and his unaided view of the property in question.
Recommendation On the basis of the above, it is RECOMMENDED: That the application of Victor T. Cheney for a permit to dredge a canal across the property as described in the application be denied. RECOMMENDED this 5th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 5th day of December, 1983. COPIES FURNISHED: Mr. Victor T. Cheney 374 Gardner Drive Fort Walton Beach, Florida 32548 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION VICTOR T. CHENEY, Petitioner, vs. CASE NO. 83-2314 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether Robert Piechocki is entitled to a permit as governed by Section 403.087 F.S. and Chapter 62 F.A.C. (formerly Chapter 17 F.A.C.) to construct and operate a rotational grazing dairy, with an accompanying dairy waste management system.
Findings Of Fact Respondent Piechocki applied for the presently disputed DEP industrial wastewater permit on August 18, 1994. After submittal of additional information, the application was deemed complete. On July 7, 1995, DEP issued an intent to issue permit, including groundwater monitoring requirements and specific and general permit conditions. Petitioners challenged the intent to issue. SOS was stipulated to have standing to bring its petition. At formal hearing, Robert and Beverly Hawkins withdrew their petition in DOAH Case No. 95- 3900. The permit application seeks approval of a proposed dairy farm to be located on approximately 267 acres of property of which 255 acres will be utilized as rotational grazing paddocks. The herd will be 699 cows. The dairy will be located at a site in the extreme northeast corner of Dixie County. The site is less than one mile from the Suwannee River. At low water conditions, gravity dictates groundwater will flow from the proposed dairy site to the Suwannee River, which is the bottom level of the groundwater aquifer. Petitioners' environmental concern is that nitrogen, phosphorous, and pathogens from the dairy may reach the Suwannee River via surface water and groundwater runoff, through sinkholes or from leaching through the soil. The proposed dairy will have a waste management collection system consisting of collection, storage, treatment lagoon, and application system components. The waste management system is intended to collect the wastewater deposited upon the high use surfaces of the milking parlor, the collection system, and the cow transit area leading to the collection system. Wastewater deposited upon the high intensity or impervious surfaces of the milking parlor, the collection system and the cow transit leading to the collection system will be flushed six times daily by a 2500 gallon flushing tank. The cows are only on that area 15 percent of the time, so only 15 percent of their waste must be processed this way. That water and any stormwater that falls into the collection system will drain to the anearobic wastewater lagoon. The adequacy of the design of the lagoon system was not refuted for a 25 year-24 hour storm (flood event). The wastewater will be used to irrigate the 255 acres of rotational grazing patterns by a spray irrigation system. There will be no direct discharge of effluent to waters of the state. DEP inspections showed no ponding, but conditions of the permit provide that wastewater effluent may not be applied to ponded areas and that there be no surface water runoff from the dairy site. The only impact on the Suwannee River will be from the groundwater flowing from the site. Groundwater concerns are part of this wastewater permitting process. Six groundwater monitoring wells are to be installed as part of the proposed project. One of the wells will be located in the barn vicinity; one will be placed up gradient of the barn; and four will be located along the farm perimeter on the down gradient side of the dairy, specifically to provide extra security to the Suwannee River. The wells have been adapted to optimize monitoring within the expected flow pattern. The draft permit allows for a change in the number of wells should either analytical data or water flow data be other than as expected. The proposed dairy farm is designed to contain nutrients in the upper zones of soil, in the root zone or in the argillic layer. Mr. Piechocki plans to use a rotational grazing system. Fifty-seven paddocks would be utilized and 699 cows would be moved from paddock to paddock. This permits even grazing over the entire paddock area. If the contingency of thinning plant cover occurs in part of any paddock, electric tape can be used to seal that area off from the cows. Cows would be prohibited from congregating in a bare area or from grazing in one area until it became bare. Presumably, the same measures can keep cows out of any areas which subsequently pond or develop a sinkhole. Rotational dairy farming is relatively new to Florida, but has been practiced in other parts of the country for some time. Rotational dairy farming is designed to reduce the amount of nitrogen being imported as compared to a non-rotational dairy. Rotational dairy farming is a concept which essentially relies on the pasture production and grazing of grasses to meet most of the nutritional requirements of the dairy cows. This compares to other types of dairy farming where cows are generally brought together in a feed lot and fed with hay and grains. Rotational grazing means rotational loading of nitrogen. Rotational grazing prevents higher loads at any one spot caused by the natural congregational proclivities of cows in conventional confinement or free roam dairies. Rotational grazing means there will be no "manure pack" created in the feed lot, as was usual in older free roaming dairy systems which have created groundwater degradation in South Florida through nutrients leaching from the "manure pack" into the groundwater and surface runoff. The 699 cows intended for this dairy herd would not produce enough nitrogen in their manure to even produce a vigorous crop of grass, so the dairy will have to add fertilizer to the soil in order to be economically profitable. The fertilizer will contain phosphorous and nitrogen, but it is to the dairy's economic interest to use the resident cow manure to greatest advantage since the more vigorous a crop is produced naturally, the less imported fertilizer must be purchased. Fertilizer will be applied only when testing shows it is necessary. No environmental danger from phosphorous was demonstrated. Each paddock area will be free of all cows and all irrigation spraying for nine days at a time, thus "resting" from any nitrogenous deposit during that period of time unless fertilizer is applied. By rule, there is no requirement that each dairy have a DEP permit. By policy established in 1990, DEP has required every new dairy in the Suwannee River Water Management District to obtain an industrial waste management permit. Contrary to opposing experts' assumption that all or part of the dairy site was within the 100 year blood plain, Mr. Piechocki's experts were clear in their finding that the site is not within the 100 year flood plain. Regardless thereof, DEP has no requirement excluding utilization of sites which lie below the 100 year flood plain. For dairies of under 700 cows, DEP requires that there be no discharge through a man-made flushing device to surface waters of the state. This project has no such device. In this case, the proximity of the Suwannee River and the presence of a karst region made DEP personnel particularly cautious. Several on-site inspections were made by DEP personnel. Also, DEP applied its higher standards for dairies of over 700 cows. DEP's rule and/or policy creates a threshold of 700 cows to which more stringent rules apply for discharge to surface water, i.e., applicants must prove the project will not degrade water quality even under the 25 year-24 hour storm event criteria. This applicant ultimately demonstrated the dairy could meet that standard. DEP's concerns in this permitting process focus on nitrogen and nutrient loading of nitrogen into the soil and in this case, the Suwannee River, which has been designated an Outstanding Florida Water (OFW). This designation entitles the Suwannee River to the highest level of environmental protection. Nitrogen is necessary in limited quantities to grow the plants cows eat so that they can produce milk. Some nitrogen from the plants goes into the milk which, upon leaving the cow is transported off-site. Some nitrogen is found in the waste produced by the cows, mostly manure. A portion of the deposited manure then volatilizes approximately 70 percent of the nitrogen in the manure into the air. The nitrogen remaining in the manure becomes part of the soil and plant system over time. Any volatilized nitrogen that might be returned to the soil by rainwater is considered lost as pure elemental nitrogen. The unfavorable side effect of nitrogen with which DEP is concerned in this case is when it affects groundwater and surface water runoff, and then only if the nitrogen is in a concentration which violates drinking water standards. The groundwater quality standard to be applied by DEP is the drinking water standard for nitrogen content. The applicant ultimately demonstrated the dairy will meet this standard. The geology underneath the proposed dairy farm site is characterized as karst geology but most of Florida is highly underlaid with karst. This type of geology can be described as being cavernous with many connected conduits allowing for rapid movement of groundwater. The site is classified by the Suwannee River Water Management District Aquifer Vulnerability Map as being highly vulnerable to groundwater contamination. The karst geology means that sometime in the past, limestone rose up and cracked, creating fissures, which ultimately resulted in sinkhole formation. Over time, sinkhole or collapse features tend to plug up with sands or clays. The feature becomes less steep- sided and more difficult to find, although a conduit between the surface and groundwater aquifer may still exist. Surface depressions can be indicators of subsurface solution features. Surface depressions can result in surface ponding. If there is a direct conduit, surface waters can more rapidly reach the groundwater aquifer as compared to other parts of the surface. Also, because of the limestone fractures and the porosity of the limestone, water can flow through the interconnected pore features. Normally, karst is only a problem as regards nitrogen loading if a particular conduit (or sinkhole) is subject to nutrient loading. If a sinkhole is active, that is, extending to the surface, it creates a direct link to the groundwater with no opportunity for treatment of contaminants through the soil. Barring the presence of active sinkholes, if there is a sufficient overlaying soil layer over any subterranean solution feature, the soil layer with crops growing on it will provide the necessary safeguards to protect surface and groundwater. However, the permit DEP intends to issue has conditions relevant to that issue to the effect that if any sinkholes should form on the dairy property, the cows must be fenced away from them or berms erected to prevent runoff or the sinkholes capped with clay to prevent water moving downward. Mr. Robert Hawkins, who owns the property directly north of the dairy site, but on the opposite side of the county road, demonstrated that his property is riddled with sinkholes, some as deep as seven feet, through which he can watch deep water often run rapidly to the Suwannee River. He theorized that this phenomenon occurs whenever both the Steinhatchee Refuge (basically a swamp) on the west side of his property and the Suwannee River to the east of both his property and the proposed dairy site rapidly fill from heavy rains. Then the water bubbles up through the sinkholes. Eight years ago, Mr. and Mrs. Hawkins and a friend paddled a canoe the length of his woods to the Suwannee River. He also claimed the water flows through the porous karst environment under all surrounding properties as well as his own, but he has not observed the phenomenon occurring on the dairy site. He has no recognized area of expertise and did not know the geology of the dairy site in particular. He has been on the site only one time, briefly, and then had observed some depressions but no sinkholes. He had allowed cattle to roam freely on his own property for fourteen years some years ago. Mr. Hawkins' theory had limited support in the testimony of Dennis J. Price, an expert in geology and hydrology, but Mr. Price seemed to believe one additional monitoring well on the southern border of the dairy site would provide sufficient security. Mr. Malcolm Howell owned the proposed dairy site property from 1956 until Mr. Piechocki bought it. Mr. Howell also owns parcels of real property scattered throughout the area. He confirmed other testimony to the effect that 30 years ago, a hurricane caused water to stand for several days on the county road north of the dairy property and on the parcel immediately southeast of the dairy site property. It is logical that flooding is likely to occur again under the same conditions. However, Mr. Howell has never seen a sinkhole on the dairy property. Although there are some depressions at various locations on the dairy property, no witness could say unequivocally that they were former sinkholes. The theory most damaging to the applicant is that these depressions are solution holes that developed on top of limerock and filled in, resulting in a gentler grade than an active sinkhole, but no witness could unequivocally say that these areas are over open karst fissures. There is limerock on the site which could indicate a conduit. Limerock also is highly porous. Ground penetrating radar was done. Ground penetrating radar is very site specific. Ground penetrating radar detected no active sinkholes on the dairy site. A fracture trace analysis may or may not have been more accurate for showing fracture resolution conduits, but such an analysis was not required and was not performed. The applicant has made adequate arrangements to prevent cows being in the depressed areas should a ponding effect or sinkhole occur. Ponding is more a nuisance (flies and odor) concern than a problem affecting groundwater. The Natural Resources Conservation Service (NRCS) sets standards and assists farmers in developing dairy designs and other soil related designs pertaining to agriculture. Under its criteria, there must be at least a three inch thick layer of soil with at least five per cent silt plus clay content. DEP uses this criteria as a guideline. The applicant meets this guideline. In order to analyze the soil at the dairy site, the applicant had qualified engineers make 47 borings eight feet deep over a 600 foot grid. Except for one boring, all borings met NRCS standards. Only one sample was shown by professional soil testers to be 2 percent clay and 2 percent silt. In an abundance of caution, DEP required additional borings. Cal-Tech, a consulting firm retained by the applicant, made about a dozen soil borings at the proposed dairy farm site. Eight of the borings identified sand only as being encountered to depths of 10 to 12 feet. The clay and organic content of the soils is not uniform across the proposed dairy farm site, but it may be assumed the 59 borings are representational. DEP was then satisfied that reasonable assurances based on soil content had been provided. DEP reviewers consulted with field representatives of the NRCS and reached the independent conclusion that the dairy would have a negligible impact on all Florida waters and an immeasurably small impact on the Suwannee River. In assessing this application, DEP accepted figures and calculations produced by the applicant's experts, but the draft permit provides safeguards in case the data is other than as represented. The experts used standard and accepted formulas, even down to measuring the estimated averages of cow manure as collected and standardized by the American Society of Agricultural Engineers. In designing the dairy, a critical decision formula was utilized by the applicant's engineer, Mr. Tremwel. Mass-loading and mass balance equations were made for the proposed dairy farm operation to determine "worst case" loading of nitrogen and phosphorous to the Suwannee River. These calculations of the dairy farm's impact to the Suwannee River were made using low flow conditions for the river. Mr. Tremwel used low flow per the United States Geologic Survey standards to predict a higher concentration of nitrogen would affect the Suwannee River than probably would ever actually reach it. He assumed that once nitrogen got below the argillic layer of the earth, there would be no further adsorption to the soil. The foregoing assumption is very unrealistic because even subsoil and limerock can absorb some nitrogen, but the assumption was made to maximize the estimated nitrogen or phosphorus (primarily from phosphate fertilizers) that could be transported to the Suwannee River as a result of this dairy. Even using this "worst case" scenario, any change at all would be undetectable at low flow and have no negative offsite effects. Assuming arguendo there were some occasional cumulative impact not accounted for by these calculations, the dynamic flow of the Suwannee River would flush most nutrients quickly. In parts of the application process, DEP consults with Suwannee River Water Management District (SRWMD) personnel. In this case, SRWMD personnel had reviewed the initial application and presented some groundwater and wastewater concerns primarily related to the vulnerability of the aquifer in a karst/sinkhole region. Among those who testified, there were still some concerns, but the witnesses were either basing their assumptions on 100 year storm event criteria and/or had not reviewed all the supplemental material such as additional boring data on soil content which the applicant submitted in response to DEP's requests for further information, and/or had never been to the site. The SRWMD witnesses deferred to experts in other fields. They expressed no clear opinion as to the adequacy of the agricultural engineering or dairy waste management system proposed for this dairy. The SRWMD had issued an Environmental Resource Permit for a road at the diary site, but deferred to DEP on ground and wastewater issues. Pathogens are related to viral and bacterial agents which cause disease syndromes. A number of pathogens are found in the manure and urine of cows. DEP permitting rules only consider the potential for pollution from one bacteriological pathogen: e.coli. Petitioners did not demonstrate any threat by the dairy from e.coli. Experts for Mr. Piechocki and DEP in the fields of agricultural engineering, dairy waste management, geology, hydro-geology, and soil science testified credibly that within reasonable professional certainty, the dairy will abate and prevent water pollution to the extent required by the applicable statute and rules. Petitioner has provided reasonable assurances to that effect. Terry Tremwel, Mark Bardolph, Edward Cordova and John J. Davis each gave their expert opinion that all existing applicable environmental permit criteria had been met. Petitioners presented no expert in dairy waste management. The applicant has provided reasonable assurances any discharges will be "free from" named nutrient concentrations covered by rule. The Suwannee River collects groundwater from a tremendously large area. This area contains numerous towns, private homes with septic tank systems, commercial farms and timberland, recreational areas, and other uses which all have some impact on groundwater quality. Further, most of these other uses do not require environmental permits nor do they provide for any specific safeguards to the quality of the groundwater. The potential impact of the proposed dairy is negligible and insignificant when compared with all of these other uses which may impact groundwater quality. Witnesses agreed that virtually all human or animal activity within the Suwannee River drainage area could potentially have an adverse impact on the quality of the groundwater flowing into the Suwannee River. It was not established that the proposed dairy would significantly degrade, either alone or in combination with other stationary installations, the Suwannee River, or that the proposed dairy would violate any applicable regulations protecting the Suwannee River.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Environmental Protection enter a final order dismissing the Petition in DOAH Case No. 95-3900 as withdrawn ,and The Department of Environmental Protection enter a final order granting Respondent Piechocki permission to construct his dairy waste management system in accord with the draft permit's general and special conditions as modified to include one additional monitoring well on the southern border, and dismissing the Petition in DOAH Case NO. 95-3899 on the merits. RECOMMENDED this 22nd day of December, 1995, in 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 22nd day of December, 1995. APPENDIX TO RECOMMENDED ORDER 95-3899 and 95-3900 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Save Our Suwannee's PFOF: 1-10, 15-16, 19-20, 22-28, 30-33, 35-39, 41-45, 47-50, 60-61, 64-83, 85-93, 95- 102 Accepted, except that unnecessary, subordinate and/or cumulative material has not been adopted. Legal argumentation and proposed conclusions of law have also been excluded or relegated to the conclusions of the recommended order. 11-12, 17-18, 29, 34, 40 and 46 Rejected because as stated, or in context with other proposals, they are not supported by the greater weight of the credible evidence. However, the issues are covered within the recommended order to the degree they are material. Many of these proposals may be generally true as related by Mr. Ceryk and other of Petitioners witnesses, but are not site-specific and therefore not accepted. Many are opinions of experts who ultimately deferred to other experts. Legal argumentation on accepted opinions was excluded. 13, 56-59 Rejected as immaterial and as legal argumentation 14 The proposal is accepted. The footnote is not precisely supported by the transcript citation and is immaterial. 21 Accepted, except for the last sentence which is contrary to the facts as found upon the greater weight of the credible evidence. 51-55 Rejected as largely legal argumentation, but the 10 parts per million and cumulative discharge issues are covered in the recommended order and the weight and credibility of the testimony cited is likewise discussed therein. Accepted, except for the last conclusory sentence which is legal argumentation contrary to the facts as found. First sentence cumulative; second sentence immaterial. 84 Irrelevant under the facts of this rotational grazing system. 94 Rejected as immaterial, cumulative, and as legal argumentation. Mr. Piechocki's and DEP's Joint PFOF: 1-5, 8, 14 Accepted. 6 Accepted, except that "pollutants" in the generic sense are not the subject of permit but only as defined by statute and rule. 7, 9 Accepted, except that conclusions of law are assigned to that portion of the recommended order. 10-12, 15-29 Accepted, except for unnecessary, subordinate, and/or cumulative material. Also, legal argumentation has been excluded. Conclusions of law are assigned to that portion of the recommended order 13 The significance of the 100 year flood plain is covered in Finding of Fact 17. COPIES FURNISHED: Marty Smith, Esquire 125 N.E. 1st Avenue, Suite 1 Ocala, FL 34478-3319 Christine C. Stretesky, Esq. Dept. of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Robert Piechocki P. O. Box 2267 Chiefland, Florida 32626 Robert & Beverly Hawkins HC 4 Box 180 Old Town, Florida 32680 Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevrd Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevrd Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether, and what, reasonable mitigative conditions are necessary to protect the interest of the public and the environment, prior to issuing Petitioner's default permit.
Findings Of Fact Application and Default Petitioner's application is to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing 650 foot-long man-made canal of the same width and depth, normal (perpendicular) to old Central and South Florida Flood Control (now SFWMD) Rim Canal (the L-48 Borrow Canal), which is along the northwest shore of Lake Okeechobee. Petitioner's initial, incomplete application filed in DEP's Port St. Lucie office on August 31, 2000, included: the proposed project's location by County, section, township, and range; its legal description; a sketch of its general location and surrounding landmarks; a SFWMD letter verifying conformity with the requirements of a "No Notice General Permit for Activities in Uplands" of a drawing for a proposed pond expansion (to a size less than half an acre), "which will provide borrow material necessary for a house pad and access drive"; a description of water control Structure 127, together with its purpose, operation, and flood discharge characteristics, which were said to describe water levels in Buckhead Ridge, the name of the subdivision where the project was proposed; two virtually identical copies of a boundary survey for Petitioner's property (one with legal description circled) showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, at a scale of one inch equals 200 feet; two more virtually identical copies of the boundary survey at the same scale showing the existing canal, with boat basin off the canal on Petitioner's property near the L-48 Rim Canal, and the proposed canal extension and house locations; and a copy of a 1996 aerial photograph of Petitioner's property and existing canal, and vicinity. The application did not describe a proposed method or any other details of construction, include any water quality information, or include a water quality monitoring plan. On September 15, 2000, Petitioner filed an additional page of the application form with DEP's Punta Gorda office. The page added the information: "Digging to be done with trac-hoe." No other specifics of the proposed construction method were included. What happened after the filing of the application is described in Tuten I and Tuten II, which are the law of the case. However, those opinions do not explain the delay between Tuten I and the issuance of DEP's proposed ERP with conditions approximately two years later. The evidence presented at the final hearing explained only that counsel of record for DEP promptly asked district staff to draft a proposed default ERP with conditions that "would probably track the RAI that had been sent out prior to the default." DEP's district staff promptly complied and forwarded the draft to DEP's Office of General Counsel in Tallahassee, which did not provide any legal advice as to the draft ERP for almost two years. There was no further explanation for the delay. As reflected in Tuten II and in the Preliminary Statement, it was DEP's position that the proper procedure to follow after its default was to issue a proposed ERP with conditions and that it would be Petitioner's burden to request an administrative hearing to contest any conditions and to prove Petitioner's entitlement to a default ERP with conditions other than those in DEP's proposed ERP. DEP's Proposed General Conditions The conditions DEP wants attached to Petitioner's default permit include general conditions taken from SFWMD's Rule 40E-4.381, which are appropriate, as indicated in the Preliminary Statement and Conclusions of Law, and as conceded by Petitioner's expert. While the Rule 40E-4.381 general conditions are appropriate, Petitioner takes the position (and his expert testified) that some of the general permit conditions contained in Rule 62-4.160, as well as Rule 62-4.070(7) (providing that "issuance of a permit does not relieve any person from complying with the requirements of Chapter 403, F.S., or Department rules"), are more appropriate general conditions to attach to Petitioner's default ERP, even if technically inapplicable, because the Chapter 62 Rules govern the operation of a permitted project (whereas the former govern the construction of a permitted project) and are "more protective of the environment." Actually, all of the rules contain general conditions that govern both construction and operation phases of an ERP, and all are "protective of the environment." There is no reason to add general conditions taken from Rules 62-4.160 and 62-4.070(7) to the applicable general conditions contained in Rule 40E-4.381. DEP's Proposed Specific Conditions (i) In General The conditions DEP wants attached to Petitioner's default permit also include specific conditions which essentially require that Petitioner provide the information in the RAI sent in December 2000, together with additional specific conditions thought necessary to protect the environment in light of the lack of detail in the application without the answers to the RAI. Some DEP's proposed specific conditions are designed to ascertain whether the application would provide reasonable assurance that permitting criteria would be met. (They make the requested information subject to DEP "approval" based on whether reasonable assurance is provided.) In general, those specific conditions no longer are appropriate since DEP is required to issue a default permit. (Looked at another way, inclusion of those specific conditions effectively would un-do the default, in direct contradiction of the court's opinion Tuten I and Tuten II.) See Conclusion of Law 52, infra. On the other hand, some of the RAI information was designed to ascertain the proposed method and other details of construction. Pending the "answers" to those "RAI conditions," DEP also wants broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. Petitioner opposes DEP's proposed broad specific conditions. He takes the position that it was incumbent on DEP in this proceeding to use discovery procedures to ascertain Petitioner's intended method of construction and tailor specific conditions to the method of construction revealed through discovery. At the same time, Petitioner opposes DEP's proposed specific conditions requiring RAI-type information, including the details of his proposed construction method. Notwithstanding the positions Petitioner has taken in this case, his expert testified that Petitioner intends to use a steel wall inserted between the water and upland at the end of the existing canal, phased excavation from the upland side, and removal of the steel wall in the final phase of construction. Assuming that method of construction, Petitioner takes the position (and his expert testified) that the statutes, rules, and permit conditions acceptable to Petitioner, and which generally prohibit pollution of the environment, are adequate. Even if the statutes, rules, and permit conditions acceptable to Petitioner would be adequate for the method of construction Petitioner now says he will use, Petitioner's application does not in fact commit to a method of construction. All Petitioner's application says is that he intends to dig with a trac-hoe. Without a binding commitment to a method of construction, it was appropriate for DEP to take the position that specific conditions were necessary to ascertain the method of construction Petitioner would use and, pending the "answers" to those "RAI conditions," and to impose broad specific conditions, including a baseline water quality investigation and a water quality monitoring plan, designed to be adequate for a "worst case scenario" that could result from the project. In his PRO, Petitioner committed to use the construction method described by his expert during the hearing, as follows: Excavation of any spoil shall be done by means of a mechanical trac-hoe; Prior to the excavation of any soil, Petitioner shall first install an isolating wall, such as interlocking sheet pile, between the existing man-made canal, and the proposed canal extension; The mechanical excavation shall be done in such a manner such that the excavated soil is not deposited in wetlands or in areas where it might be reasonably contemplated to re-enter the waters of the State of Florida; After the proposed canal extension is excavated to its project limits in the foregoing manner, the side slopes of the canal extension shall be allowed to revegetate prior to removal of the isolating wall. With a condition imposing this method of construction, fewer and narrower specific conditions will be necessary. ii. Seriatim Discussion DEP's proposed Specific Condition 1 requires a perpetual conservation easement prohibiting docking and mooring of water craft on all portions of Petitioner's property within the canal extension in order to "address cumulative impacts." But DEP did not prove that the proposed conservation easement was reasonably necessary to protect the interest of the public and the environment. First, DEP did not prove that there would be any cumulative impacts, much less unacceptable cumulative impacts, from Petitioner's project. See § 373.414(8), Fla. Stat.; Rule 40E-4.302(1)(b); and BOR § 4.2.8. Second, even if unacceptable cumulative impacts were proven, those could be addressed in other permit cases (assuming no DEP default in those proceedings), since the concept of cumulative impacts essentially requires an applicant to share acceptable cumulative impacts with other similar permittees, applicants, and foreseeable future applicants. See Broward County v. Weiss, et al., DOAH Case No. 01-3373, 2002 Fla. ENV LEXIS 298, at ¶¶54-58 (DOAH Aug. 27, 2002). As Petitioner points out, the easement further described in Specific Condition 1 appears to be overly broad for its stated purpose in that it would cover "the legal description of the entire property affected by this permit and shown on the attached project drawings," which could be interpreted to include not just the canal extension but the entire extended canal, or even the entirety of Petitioner's 6.6 acres of property. Indeed, the latter might have been the actual intention, since DEP's witness testified that Specific Condition 1 also was intended to address impacts from fertilizer runoff and septic tank leaching from new homes built along the canal. Although some of those impacts (as well as future construction of additional homes and docks) actually are secondary impacts, not cumulative impacts, it is possible that they can be addressed in DEP or SFWMD proceedings on future applications, as well as in Department of Health proceedings on septic tank installations. DEP's proposed Specific Condition 2 requires that: spoil material from the dredging to be "used for the sole purpose of constructing a single-family fill pad" on Petitioner's property under a pending permit; spoil "be placed in a manner so as not to affect wetlands or other surface waters"; and the "spoil disposal location shall be shown in the drawings required by Specific Condition #4 below." DEP did not prove that the first requirement was reasonably necessary to protect the interest of the public and the environment. First, it is unreasonable since Petitioner already has built the referenced single-family fill pad and a home on top of it. Second, the reason DEP's witness gave for this requirement was that, under an operating agreement with SFWMD (which was officially recognized), DEP only has jurisdiction to take action on single-family uses (which he defined to include duplexes, triplexes, and quadriplexes) but not on larger multi-family and certain other projects. However, the operating agreement on jurisdiction is not a reason to place Specific Condition 1 on the use of spoil material on Petitioner's default permit. SFWMD can regulate, in permitting proceedings under its jurisdiction, the placement of fill material for multi- family construction or other projects not under DEP jurisdiction. In addition, under the operating agreement, jurisdiction can be "swapped" by written agreement in cases where deviation from the operating agreement would result in more efficient and effective regulation. The second two requirements under Specific Condition 2 are reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 3 requires disclosure of all pending and issued permits for the property from SFWMD, Glades County, or the U.S. Army Corps of Engineers (USCOE). DEP did not prove that this is reasonable or reasonably necessary to protect the interest of the public and the environment. DEP probably has all such permits and can easily obtain any it does not have. DEP's proposed Specific Condition 4 requires fully dimensional plan view and cross-sectional drawings of the property and area to be dredged, before and after dredging, including a north arrow and the water depths in and adjacent to the dredge area. DEP's witness stated that the primary purpose of this part of the condition is to provide hydrographic information normally provided in an application (or required in an RAI) so that DEP's hydrographic engineer can ascertain flushing characteristics, which are pertinent primarily to the dissolved oxygen water quality parameter and to heavy metals from boat use. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate since DEP is required to issue a default permit. See Finding 9, supra. However, information regarding flushing characteristics, combined with other specific conditions, is reasonable and necessary to protect the interest of the public and the environment. See Finding 27, infra. In addition, the plan view and cross-sectional drawings required by Specific Condition 4 are to include the location of navigational obstructions in the immediate area, any roads, ditches, or utility lines that abut the property; any encumbrances, and any associated structures. DEP's witness stated that the primary purpose of this information is to determine whether Petitioner has provided reasonable assurance that the "public interest" test under Rule 40E-4.302 is met, and make sure that management, placement, and disposal of spoil material do not infringe on property rights or block culverts and cause flooding. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. However, information regarding the location of culverts to assure that management of spoil does not cause flooding is reasonable and necessary to protect the interest of the public and the environment. In addition to objecting to having to provide RAI information as a "default permittee," Petitioner's expert asserted that the information requested in Specific Condition 4 would be provided as part of the "as-built" drawings required by General Condition 6. But General Condition 6 does not require "as-built" drawings. Rather, it requires an "as-built" certification that can be based on "as-built" drawings or on-site observation. Besides, the purpose of the "as-built" certification is to determine "if the work was completed in compliance with permitted plans and specifications." Without the information requested in Specific Condition 4, there would only be vague and general permitted plans and specifications and hydrographic information. Finally as to Specific Condition 4, Petitioner objects to the requirement that the drawings be sealed by a registered professional engineer. However, Petitioner cites to General Condition 6, which requires that the "as-built" certification be given by a "registered professional" and cites Rule Form 62- 343.900(5), which makes it clear that "registered professional" in that context means a registered professional engineer. DEP's proposed Specific Condition 5 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that the canal extension will not violate water quality standards due to depth or configuration; that it will not cause a violation of water quality standards in receiving water bodies; and that it will be configured to prevent creation of debris traps or stagnant areas that could result in water quality violations. The reasonable assurance is to include hydrographic information or studies to document flushing time and an evaluation of the maximum desirable flushing time, taking several pertinent factors into consideration. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. In addition, Petitioner's expert testified without dispute that the information requested could take more than 180 days and cost approximately $20,000. However, it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be configured so as have the best practicable flushing characteristics. DEP's proposed Specific Condition 6 requires Petitioner to submit for DEP approval, within 180 days of permit issuance and before any construction, reasonable assurance that construction of the canal extension will meet all permit criteria set out in Rules 40E-4.301 and 40E-4.302 and in BOR § 4.1.1. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate. See Finding 9, supra. DEP's proposed Specific Condition 7 requires Petitioner to submit existing water quality information for DEP approval within 180 days of permit issuance and before any construction. In this instance, DEP's approval would not be a determination on the provision of reasonable assurance but a determination as to the reliability of the water quality information, which is necessary to establish a baseline for assessing and monitoring the impact of the project. For that reason, the information is reasonable and necessary to protect the interest of the public and the environment. Petitioner's expert testified that the information could cost $2,000-$3,000 to produce (and more, if DEP rejects the information submitted, and more information is required). He also testified that water quality information already is available, including over 25 years worth of at least monthly information on all pertinent parameters except biological oxygen demand and fecal coliform, at a SFWMD monitoring station in the Rim Canal at Structure 127 (a lock and pump station at the Hoover Levee on Lake Okeechobee) approximately 8,000 feet away from Petitioner's canal. DEP did not prove that the SFWMD information would not serve the purpose of establishing baseline water quality for Petitioner's canal for all but the missing parameters. For that reason, only water quality information for the missing parameters is reasonable and necessary to protect the interest of the public and the environment in this case. DEP's proposed Specific Condition 8 requires that, if the water quality information required by Specific Condition 7 shows any violations of state ambient water quality standards, Petitioner must submit for DEP approval, within 180 days of permit issuance and before any construction, a plan to achieve net improvement for any parameters shown to be in violation, as required by Section 373.414, Florida Statutes. See also BOR § and 4.2.4.2. Normally, if applicable, this information would be expected in an application or RAI response. Petitioner's expert testified that this condition would require Petitioner to help "fix Buckhead Ridge" (unfairly) and that it would cost lots of money. But Petitioner did not dispute that the law requires a plan for a "net improvement," which does not necessarily require a complete "fix" of water quality violations, if any. As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of a net improvement plan. See Finding 9, supra. But a specific condition that Petitioner implement a plan to achieve net water quality improvement in the event of any water quality violations would be reasonable and necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 9 requires Petitioner to submit for DEP's approval, at least 60 days before construction, detailed information on how Petitioner intends to prevent sediments and contaminants from being released into jurisdictional waters. DEP asserts that this specific condition asks for a detailed description of how the applicant will comply with various subsections of BOR § 4.2.4.1 that address short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition that Petitioner's canal extension be constructed using adequate turbidity barriers; stabilize newly created slopes or surfaces in or adjacent to wetlands and other surface waters to prevent erosion and turbidity; avoid propeller dredging and rutting from vehicular traffic; maintain construction equipment to ensure that oils, greases, gasoline, or other pollutants are not released into wetlands and other surface waters; and prevent any other discharges during construction that will cause water quality violations. DEP's proposed Specific Condition 10 requires Petitioner to submit, at least 60 days before construction, detailed information regarding Petitioner's plans for handling spoil from dredging, including "discharge details, locations retention plans, volumes, and data used to size the disposal cell(s)." It allows this information to be combined with the Specific Condition 2 submittal. It also requires spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP asserts that this specific condition (like Specific Condition 9) is necessary to comply with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). As previously indicated, requests for information relating to reasonable assurance and the public interest test generally no longer are appropriate, and Petitioner's ability to construct the canal extension should not be dependent on DEP's approval of information submitted. See Finding 9, supra. But it is reasonable and necessary to protect the interest of the public and the environment to include a specific condition requiring spoil to be properly contained to prevent return of spoil to waters of the State and to be deposited in a self-contained upland site that prevents return of any water or material into waters of the State. DEP's proposed Specific Condition 11 requires Petitioner to submit "as-built" drawings to DEP's Punta Gorda office with 30 days after completion of construction, "as required by General Condition #6." Petitioner's expert testified that this condition was unreasonable only because it duplicates General Condition 6 and two statutes. But General Condition 6 actually does not require "as-built" drawings, see Finding 9, supra, and it is not clear what statutes Petitioner's expert was referring to. For these reasons, and because it provides a filing location, Specific Condition 11 is reasonable and reasonably necessary to protect the interest of the public and the environment. DEP's proposed Specific Condition 12 requires Petitioner to "maintain the permitted canal free of all rafted debris by removal and property upland disposal." DEP asserts that this specific condition is necessary to comply with BOR § by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). Rafted debris, which may be of an organic or inorganic nature, can accumulate at the end of canals due to wind, waves, boats, or other forces. Such organic rafted debris may rot and, by creating a high biological oxygen demand, rob the water of dissolved oxygen. Petitioner's only expressed opposition to this condition is that the conservation easement in Specific Condition 3 might prevent compliance. While it is unclear how the easement would prevent compliance, the issue is eliminated if no conservation easement is required. DEP's proposed Specific Condition 13 requires Petitioner to use turbidity screens during construction for compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The turbidity screen requirements detailed in this specific condition are typical best management practices that contractors use and are a standard condition placed in permits of this nature by DEP. Petitioner contends that turbidity screens are unnecessary given his intended construction method and that other conditions are sufficient to cover DEP's concerns. However, as indicated, the application does not commit to a method of construction. With the application in its current state, Specific Condition 13 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 14 requires Petitioner to "ensure that any discharge or release of pollutants during construction or alteration are not released into wetlands or other surface waters that will cause water quality standards to be violated." Again, this condition is intended to ensure compliance with BOR § 4.2.4.1 by addressing short-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). While this specific condition seems general and perhaps duplicates other conditions (which was Petitioner's only point of contention), DEP added it in an attempt to make sure the possible and not uncommon release of pollutants from construction equipment was addressed. As such, the condition is appropriate. DEP's proposed Specific Condition 15 provides details on the use of turbidity screens. Petitioner's primary points of contention are that turbidity screens are not needed for his intended construction method and that other conditions are sufficient without this condition. As such, the relevant issues already have been addressed in connection with Specific Condition With the application in its current state, Specific Condition 15 is appropriate subject to a demonstration by Petitioner that turbidity screens are not needed for the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 16 requires Petitioner to used staked filter cloth to contain any turbid run- off and erosion from created slopes of the canal extension. This is the most common best management practice and is a standard condition for ERP permits dealing with side slopes that may affect water quality. Unstable slopes can result in chronic turbidity, which is detrimental to wildlife. Unstable slopes also can lead to upland runoff being deposited into the water along with debris and sediment. Such runoff can bring deleterious substances such as heavy metals and nutrient-loaded substances that might impact dissolved oxygen levels in the water. Petitioner's primary points of contention on Specific Condition 16 are that, like turbidity screens, staked filter cloth is not needed for Petitioner's intended construction method and that other conditions are sufficient without this condition. (Petitioner also questions why the condition gives Petitioner up to 72 hours from "attaining final grade" to stabilize side slopes, but the condition also requires side slope stabilization "as soon as possible," and the 72-hour outside limit seems reasonable.) As such, the relevant issues already have been addressed in connection with Specific Condition 13 and 15. With the application in its current state, Specific Condition 16 is appropriate subject to a demonstration by Petitioner that staked filter cloth is not needed if he uses the construction method committed to in Petitioner's PRO. DEP's proposed Specific Condition 17, 18, 19, and 20: details required long-term water quality monitoring and reporting [#17]; establishes sampling intervals and requires Petitioner to submit a "plan to remediate" if monitoring shows water quality violations or "a trend toward future violations of water quality standards directly related to the permitted canal" [#18]; allows "additional water quality treatment methods" to be required if water quality monitoring shows it to be necessary [#19]; and allows water quality monitoring requirements to be modified (which "may include reduction in frequency and parameters . . . or the release of the monitoring process"), "based on long term trends indicate that the permitted canal is not a source to create water quality violations [#20]." These conditions are intended to ensure compliance with BOR § 4.2.4.2 by addressing long-term water quality to aid in providing reasonable assurance that water quality standards will not be violated, as required by Section 373.414(1), Florida Statutes, and Rule 40E-4.301(1)(e). The evidence was that these specific conditions are standard for ERP permits where a constructed system may lead to water quality violations in the long term. Contrary to Petitioner's contentions, conditions of this kind are not dependent on a post-construction finding of water quality standard violations (even though DEP defaulted on Petitioner's application). Besides contending that monitoring requirements in Specific Conditions 17 and 18 are unnecessary, Petitioner also contends that they are too extensive and not tailored to Petitioner's intended construction, but DEP proved their necessity, even assuming the construction method committed to in Petitioner's PRO. Petitioner complains that Specific Condition 19 is vague and that Petitioner's ERP does not provide for "water quality treatment." But the present absence of post-construction water quality treatment should not preclude the possible future imposition of some kind of water quality treatment if monitoring shows it to be necessary. For this kind of condition, the absence of detail regarding the kind of treatment to be imposed is natural since it would depend on future events. DEP's proposed Specific Condition 21 merely requires that Petitioner's project comply with State water quality standards in Florida Administrative Code Rules 62-302.500 and 62- 302.530. Petitioner contends that this is duplicative and unnecessary. But it certainly is not unreasonable to be specific in this regard. No Improper Purpose As part of his request for attorney's fees under Section 120.595, Florida Statutes, Petitioner necessarily contends that DEP participated in this proceeding "for an improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." Even assuming that DEP should be considered a "nonprevailing adverse party," Petitioner's evidence did not prove that DEP's participation was for an "improper purpose." To the contrary, DEP "participated" initially because Petitioner filed an application. DEP's denial of Petitioner's application was not proven to be "for an improper purpose" but rather for the purpose of attempting to protect the environment. The propriety of the denial was litigated in Tuten I, which made no finding that the denial was "for an improper purpose" and which ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." The two-year delay between Tuten I and Tuten II was not fully explained, but Tuten II also made no finding that the denial, or the delay, or DEP's proposed ERP with conditions were "for an improper purpose" and again ordered DEP to participate in a hearing for purposes of determining "reasonable mitigative conditions." While DEP's views on the nature of the hearing to be conducted for purposes of determining "reasonable mitigative conditions" was rejected, it was not proven that DEP argued its views "for an improper purpose" or that its participation, once its views were rejected, was "for an improper purpose," as defined by statute. To the contrary, the evidence was that DEP participated in this proceeding in an attempt to place conditions on Petitioner's permit which DEP thought were necessary to protect the environment, many (although not all) of which are accepted in this Recommended Order. As Petitioner accepts and points out, it remains necessary for Petitioner to construct and operate his project in a manner that does not violate environmental statutes and rules. But without any water quality information or monitoring, DEP's enforcement of those laws and rules will be hamstrung.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order issuing Petitioner a default ERP, to expire five years from issuance, to dredge an extension, 50 feet wide by 300 feet long by 5 feet deep, to an existing man-made canal, as applied for, subject to: DEP's proposed General Conditions 1-19; DEP's proposed Specific Conditions 4 and 11-21; DEP's proposed Specific Conditions 2, 5, and 7-10, as modified by the Findings of Fact; and the construction method committed to in Petitioner's PRO (see Finding 14, supra. DONE AND ENTERED this 11th day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2006.
