The Issue The issues are whether the proposed amendment to Rule 40E- 2.041(1), Florida Administrative Code, exceeds the agency's grant of rulemaking authority; enlarges, modifies, or contravenes the specific law implemented; or is vague, fails to establish adequate standards for agency discretion, and vests unbridled discretion in the agency.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Osceola Fish Farmers Association, Inc. (OFFA), is a non-profit corporation whose members consist of tropical fish farmers in Osceola County, Florida. The parties have stipulated that OFFA has standing to bring this action. Respondent, South Florida Water Management District (District or Respondent), is a public corporation operating pursuant to Chapter 373, Florida Statutes, with its principal office in West Palm Beach, Florida. Among other things, the District has the authority to regulate the uses of water within its geographic boundaries, including Osceola County. On an undisclosed date, the District began test drawdowns (a lowering of the elevation of the water through control structures) in the Alligator Chain of Lakes just east of St. Cloud in Osceola County, where OFFA's members are engaged in tropical fish farming. The drawdowns were undertaken for the purpose of allowing the Florida Fish and Wildlife Conservation Commission (FFWCC) to conduct demucking activities in the lakes to enhance aquatic habitat. Prior to beginning work, the FFWCC obtained an Environmental Resource Permit from the Department of Environmental Protection (DEP). However, the District did not require either itself or the FFWCC to obtain a consumptive use permit on the theory that a lake drawdown for demucking activities was not a consumptive use and therefore did not require a permit. In an effort to halt future scheduled drawdowns, OFFA participated in a United States Army Corps of Engineers proceeding which culminated in the preparation of an Economic Impact Statement for FFWCC's drawdowns; filed a complaint with DEP under Section 373.219(2), Florida Statutes, alleging that an unlawful consumptive use (without a permit) was taking place (which complaint was found to be insufficient); filed an action for injunctive relief in circuit court under Section 403.412, Florida Statutes (which was dismissed or dropped for undisclosed reasons); and finally initiated a proceeding against the District under Section 120.56(4), Florida Statutes, alleging that the District had adopted "an incipient non-rule policy of exempting lake 'drawdowns' from water use permitting requirements" (DOAH Case No. 00-3615RU). To avoid the consequences of an adverse ruling in the latter action, the District began rulemaking proceedings to adopt an amendment to Rule 40E-2.041(1), Florida Administrative Code, to codify its policy relative to lake drawdowns. As amended, the rule reads as follows: Unless expressly exempt by law or District rule, a water use permit must be obtained from the District prior to any use or withdrawal of water. The drawdown of lakes for environmental, recreational, or flood control purposes is not regulated by Chapter 40E-2 or 40E-20, F.A.C. (Underscored language represents amended language). Petitioner has challenged only the amendment, and not the existing rule. The effect of the rule is obvious - a lake drawdown for one of the three stated purposes in the rule will not require a permit, while all other lake drawdowns will. As specific authority for the proposed amendment, the District cites Sections 373.044 and 373.113, Florida Statutes. The former statute authorizes the District to "adopt rules pursuant to [Chapter 120] to implement the provisions of this chapter," while the latter statute authorizes it to "adopt rules pursuant to [Chapter 120] to implement the provisions of law conferring powers or duties upon it." The District has cited Sections 373.103(1), 373.219, and 373.244, Florida Statutes, as the specific laws being implemented. The first statute provides that if specifically authorized by DEP, the District has the authority to "administer and enforce all provisions of this chapter, including the permit systems established in parts II, III, and IV of [Chapter 373], consistent with the water implementation rule"; the second statute provides in relevant part that the District may "require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area"; and the third statute provides for the issuance of temporary permits while a permit application is pending. In regulating the uses of water within its boundaries, the District administers a comprehensive consumptive water use permit program under Part II, Chapter 373, Florida Statutes. Both parties agree that under Section 373.219(1), Florida Statutes (2000), all "consumptive uses" of water require a permit, except for the "domestic consumption of water by individual users," which use is specifically exempted by the same statute. The global requirement for permits is also found in Rule 40E-2.041 (the rule being amended), as well as Rule 40E- 1.602(1), which provides in relevant part that unless expressly exempted by statute or rule, "[a] water use individual or general permit pursuant to Chapters 40E-2 or 40E-20, F.A.C., must be obtained prior to use or withdrawal of water " The term "consumptive uses" is not defined by statute, but the District has promulgated a rule defining that term. By Rule 40E-2.091, Florida Administrative Code, the District has adopted by reference a document known as the "Basis for Review for Water Use Permit Applications with the South Florida Water Management District." Section 1.8 of that document contains definitions of various terms used in the permitting program, including "consumptive use," which is defined as "[a]ny use of water which reduces the supply from which it is withdrawn or diverted." The District's policy for lake drawdowns, as proposed in the rule amendment, is inconsistent with this definition. On this disputed issue, Petitioner's evidence is accepted as being the most persuasive, and it is found that a lake drawdown for any purpose is a consumptive use of water. Section 373.219(1), cited as a specific law being implemented, provides that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure such use is consistent with the overall objectives of the district and department and is not harmful to the water resources of the area." The District construes this language as authorizing it to decide which uses of water are a "consumptive use," and which are not, and to implement a rule which codifies those decisions relative to lake drawdowns. Not surprisingly, Petitioner views the statute in a different manner and argues that the statute simply allows the District to create a permit program that is consistent with Chapter 373; that under the law a permit is required for all consumptive uses, including lake drawdowns; and that the District has no authority to carve out an exception for a lake drawdown from the permitting process, no matter what the purpose. As noted above, the District has identified three instances (for environmental, recreational, and flood control purposes) when a lake drawdown does not require a consumptive use permit. These terms are not so vague that a person of common intelligence would have difficulty understanding them. However, the proposed rule contains no prescribed standards to guide the District in its administration of the rule.
Findings Of Fact Respondent Felo McAllister and his wife Dorothy own a home and dock on Texar Bayou off Escambia Bay in Pensacola, Florida. A storm sewer with a diameter of 15 to 18 inches empties into the Bayou near the dock. The silt- laden outflow from the storm sewer has resulted in a sand bar or berm two or three feet wide paralleling the shoreline from the McAllisters' property line to the dock. This sand bar separates a ditch caused by the outflow from Texar Bayou. Over the years, silt has accumulated underneath the dock. The McAllisters originally applied for a permit to dredge boat slips at the dock. Andrew Feinstein, an environmental specialist II in respondent Department's employ, evaluated the original application and recommended denial, because he felt extending the dock was preferable to dredging. The McAllisters then modified their application so as to seek a permit for dredging at the mouth of the storm sewer in order that the silt already deposited there would not wash underneath the dock. Mr. Feinstein and Michael Clark Applegate, an environmental specialist III and dredge and field supervisor employed by the Department, testified without contradiction that the Department has reasonable assurances that the proposed project will not violate any applicable rules. The permit DER proposes to issue contemplates that the berm will not be breached. The bottom on which the dredging is proposed to take place belongs to the City of Pensacola. Although under water, it is a part of a dedicated roadway. The City itself does maintenance dredging to ensure the efficiency of storm sewers, but is glad for assistance from private citizens in this regard. J. Felix, City Engineer for Pensacola, is authorized allow dredging on this road right of way, and has done so. See also respondent's exhibit No. 2. The site proposed for placement of the spoil is a low area affected by flooding. Fill there would affect drainage onto neighbors' property.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER issue respondent McAllister the permit it proposed to issue in its letter of September 14, 1979, upon condition that the spoil be placed at least 100 feet from the water's edge. DONE and ENTERED this 12th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William L. Hyde, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Larry Jay Sauls and Ms. Harriett Tinsley Sauls 14 West Jordan Street Pensacola, Florida 32501 Felo McAllister 2706 Blackshear Pensacola, Florida 32503
The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
The Issue The issues presented for decision in this case are: whether Martin County should be granted the re-issuance of Water Use Permit No. 43-00752W for the Tropical Farms Water Treatment Plant and associated wells; and (2) whether Martin County should be granted Water Well Construction Permit No. SF032696B for the construction of Well No. 10 of the Tropical Farms Water Treatment Plant, pursuant to the permitting criteria of Chapter 373, Parts II and III, Florida Statutes; Chapters 40E-2 and 40E-3, Florida Administrative Code; and the Basis for Review for Water Use Permit Applications of the South Florida Water Management District.
Findings Of Fact Petitioner James W. Slusher, Jr., and his wife, Diane L. Slusher, own a residential lot located in unincorporated Martin County at 2376 SW Ranch Trail, Stuart, Florida 34997. On the lot is a single family home. The size of the residential lot is approximately 2.25 acres. Mr. and Mrs. Slusher purchased the subject residential lot and home in September of 1994 from Mrs. Stella Kassinger. Mrs. Kassinger and her late husband (the “original owners”) had the home built on the residential lot in approximately 1980. When the original owners built the home, they had a hole or “pit” dug in the rear portion of the lot. From aerial photographs taken at the time (1979-1980), and based upon the common practice in the area, it appears that the material from the “pit” was spread on-site to provide additional elevation for, and to minimize the potential for flooding of, the home and driveway that were constructed on the lot. Thus, the original “design function” of the “pit” was to provide fill for construction. The original owners thereafter allowed the “pit” to accumulate water and stocked it with fish so that Mr. Kassinger could use it recreationally as a fishing pond. The “design function” of the original “pit” was thus changed so that it would serve as a recreational amenity on the property. During the subsequent 14 years that the original owners lived in the home, they did nothing further to alter or improve the fishing pond. Over the years, the area immediately around the fishing pond became heavily vegetated and was used from time to time by various wild birds and animals. The fishing pond was used by the original owners for fishing and for observing the wildlife it attracted. After purchasing the home, Mr. Slusher also stocked the fishing pond with various fish over the years so that he and his family could continue to use it recreationally. The fishing pond continued to be used by the Slushers for fishing, for observing wildlife, and as a swimming area for their dogs. Currently, the overall dimensions of the fishing pond are approximately 90 feet wide, by 122 feet long, by 10 feet deep at its deepest part, when filled to the level that was natural prior to the operation of Water Well No. 10. Potable water for the Slusher home is obtained from a well drilled on the property, not from the public water system of the County. The Slusher well is located approximately 33 feet from the home. It is attached by PVC pipe to a pump located next to the home. The original owners caused the well to be drilled. The record in this case does not contain any persuasive evidence regarding the details of the Slusher residential water well. Specifically absent are such details as the depth to which the well was originally drilled, the material from which the well tube was made (i.e., cast iron or PVC), and the current physical condition of the sub-surface portions of the well. Mr. Slusher has not done anything to repair or replace the well since he and his wife purchased the home. On August 2, 2000, Mr. Slusher filed a petition with the SFWMD challenging the issuance of Water Well Construction Permit No. SF032696B, and the "use of the well." On November 3, 2000, Mr. Slusher filed an amended petition with the Division of Administrative Hearings, challenging the issuance of Water Use Permit No. 43-00752W and Water Well Construction Permit No. SF032696B. Martin County (“the County”) is a political subdivision of the State of Florida, established in 1925 pursuant to Section 7.43, Florida Statutes, and Section 1, Chapter 10180, Laws of Florida. SFWMD is an independent state agency, operating pursuant to Chapter 373, Florida Statutes. SFWMD originally issued Water Use Permit No. 43-00752W to the County on April 15, 1993. The “water use permit” was for wells and associated equipment at the Tropical Farms Water Treatment Plant (“Tropical Farms WTP”). SFWMD re-issued Water Use Permit No. 43-00752W to the County on March 14, 1996. The re-issued “water use permit” allowed additional wells to be drilled and additional draws of water by the County at the Tropical Farms WTP. One of the additional wells included in the re-issued water use permit was “Well No. 10.” SFWMD issued Water Well Construction Permit No. SF032696B to the County on March 28, 1996, allowing the construction of Well No. 10 at the Tropical Farms WTP. In accordance with the restrictions imposed by the water well construction permit, the County drilled Well No. 10 on a site located at least 100 feet in distance from the fishing pond on the Slushers’ property. The physical location of Well No. 10 is essentially “adjacent to” the Slusher property. County Well No. 10 is approximately 120 feet deep and draws water from the surficial aquifer. It commenced operation in December of 1996. It is uncontested that the operation of the well field, especially County Well No. 10, has caused drawdowns of the pond level and of the groundwater in the area of Mr. Slusher's residential water well. The MODFLOW model used by the County in support of its application indicates a maximum drawdown of 7.4 feet. The persuasive expert opinion evidence in this case indicates that maximum draw downs of 7 or 8 feet would be expected in the area of Mr. Slusher's residential water well. The County has acknowledged that the operation of Well No. 10 has had a significant effect on the drawdown of the water table in the area of the pond. County Well No. 10 appears to have been constructed in a manner consistent with the applicable rules. The well was properly drilled and grouted, the correct materials were used, and the well was constructed in a manner that did not result in harm to the water resources. The water use permit was issued prior to the well construction permit, as is appropriate. Although permitted originally in 1993 and again in 1996, the Tropical Farms WTP did not begin regular operations until June of 1997. It is now part of a consolidated system which includes four other water treatment plants, all operated by the County for the purpose of obtaining and providing potable water to the public county-wide. In support of its applications for the issuance and re-issuance of the water use permit, the County provided SFWMD with so-called “MODFLOW calculations” done by a professional engineering firm retained by the County. MODFLOW was developed by the U.S. Geologic Survey and is considered the standard for assessment of ground water resource impacts. The results of the three-dimensional MODFLOW modeling showed that the drawdown effect on the water table of the proposed wells for the Tropical Farms WTP would be unlikely to cause any adverse effect on typical wells used by homeowners, even if the latter were located within the same small “square” as one of the County’s wells. Prior to the commencement of the operation of Well No. 10 by the County, the water level in the fishing pond on the Slusher property would vary only a few inches up or down during the course of a typical year. After the County began to operate County Well No. 10, Mr. Slusher observed and videotaped much greater variations in the water level in the fishing pond on his property. After County Well No. 10 began to operate, the pond water level dropped to the extent that it would become virtually empty of water from time to time. At other times, however, the fishing pond would refill with water, such as in September of 1999, and in August of 2001. When the water in Mr. Slusher's pond gets very low, it has an adverse impact on the fish in the pond; the fish die because they have insufficient water. Mr. Slusher has not done anything over the years since the operation of County Well No. 10 began to attempt to prevent the variations in the water level of the fishing pond, or to mitigate the occurrence of such variations. The County (together with the rest of southern Florida) has experienced several periods of severe drought over the past few years. Yet other “ponds” on other properties in the same neighborhood as the Slusher property have not experienced the significant variance in water level that has occurred in the fishing pond on the Slusher property since the County began drawing water from Well No. 10. The County does not operate Well No. 10 continuously. Rather, it has attempted to reduce its use of the well. SFWMD has never issued any notice to the County that any mitigation was required on the Slusher property pursuant to the limiting conditions of the water use permit. The County does not dispute that its operation of Well No. 10 has contributed to a drawdown in the level of the water table in the surrounding area, nor that such a drawdown has contributed to the variance in the water level in the pond on the Slusher property. Indeed, the drawdown of the water table generally was fully anticipated and predicted in the materials submitted by the County to SFWMD. The use of County Well No. 10 to draw water from the surficial aquifer is not the only factor contributing to the variances in the water level of the fishing pond on the Slusher property. Evaporation and natural variances in the level of the water table also contribute to changes in the water level of the fishing pond. Bentonite is a naturally occurring clay that is mined for a variety of uses, including the “lining” or “waterproofing” of reservoirs, lagoons, ponds, ditches, and other man-made bodies of water in order to seal them and to prevent or minimize seepage or percolation of the water into the ground. Even repeated wetting and drying of the clay does not reduce its effectiveness. Bentonite is widely used and has not been found to have any harmful or toxic effects on either human beings or wildlife. In some applications, bentonite clay is a superior lining material when compared to a man-made liner, such as a plastic or polymer sheet. In a small scale application where the volume of water in a lined pond is relatively low, a man- made liner could be forced away (“balloon up”) from the bottom of the pond by the pressure of a rising natural water table. Lining the pond on the Slusher property with Bentonite (or some similar clay) would create a virtually impervious layer that would separate the water in the pond on the Slusher property from the surrounding water table. With such a lining in place, County Well No. 10 would have no significant effect on the water level of the pond. The water level in the pond on the Slusher property could also be stabilized at or near its normal level prior to the operation of County Well No. 10 by installation of a water supply that would add water to the pond whenever the pond dropped below a specified level. Mr. Slusher first complained to the County about the effect of the County’s operation of Well No. 10 in 1997, when he spoke with Jim Mercurio, a County water utilities employee. Mr. Slusher also complained at about the same time to SFWMD, which resulted in a “field investigation” in September 1997. At that time, Mr. Slusher complained about the lowering of the water level in the pond on his property, but specifically denied any adverse effect on the water from his residential water well. Mr. Slusher began to complain about the water quality and water pressure in his residential water well sometime in 2000. The water flowing from Mr. Slusher's residential water well now has an unpleasant odor, taste, and color, and the water causes rust stains. The water pressure of the water flowing from Mr. Slusher's residential water well is less than it was before the construction of County Well No. 10. The rust stains, odor, taste, and color are all due to iron oxidation of the water drawn from the well on the Slusher property. The County regularly experiences similar problems with iron oxidation in the water that it draws from its own wells in the same area as the Slusher property, which the County must treat at the Tropical Farms WTP. The problem of iron oxidation (and accompanying odor and taste deficiencies) in the water is thus not unique to the water drawn from the well on the Slusher property. Iron oxidation in well water is not harmful to human beings. The evidence in this case does not include any evidence of any testing of the water quality of the water coming from the Slusher residential well. Similarly, there is no persuasive evidence as to the current condition of the sub- surface portions of the Slusher residential well. Further, the evidence regarding the cause of any deterioration of the water quality and/or the water pressure of the Slusher residential water well is both anecdotal and speculative, and is not a persuasive basis for determining the cause of any deterioration of the water quality and/or water pressure of the subject residential well. Specifically, the evidence is insufficient to establish that the water quality and water pressure deterioration complained of by Mr. Slusher are a result of the operation of County Well No. 10. Such deterioration could be caused by other circumstances or conditions, including the uninspected sub-surface condition of Slusher's residential water well. The water quality and water pressure problems currently experienced by Mr. Slusher could be minimized or eliminated by connecting his residence to the residential water supply system operated by the County. A branch of the County's public water system already exists in Mr. Slusher's neighborhood within a few hundred feet of his property. The application and information provided to SFWMD by the County were determined by SFWMD to provide “reasonable assurances” that existing legal users would not be adversely affected by the proposed wells or water treatment facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Governing Board of the South Florida Water Management District enter a final order issuing Water Well Construction Permit No. SF032696B and re- issuing Water Use Permit No. 43-00752W to Martin County, subject to the general and special conditions set forth therein. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 31st day of May, 2002. COPIES FURNISHED: Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. 618 East Ocean Boulevard, Suite 5 Post Office Box 1197 Stuart, Florida 34995-1197 Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
The Issue The appellant contends that the Planning Commission "did not base its decision on specific standards or criteria [set forth in the zoning regulation] as required. Nor was there any competent substantial evidence presented that would support the Planning Commission's findings."
Findings Of Fact Based upon the evidence of record submitted with this appeal, the findings of fact of the Planning Commission are rejected and the following substituted: The proposed use constitutes a marina pursuant to section 9.5-4(M-5) of the Monroe County Code, Land Development Regulations, and it must, therefore, be reviewed as a major conditional use. The proposed development complies with all applicable Monroe County land development regulations. The proposed development is limited to two fueling docks, one 9' x 16'4" and the other 13' x 12'8", and one fueling pump. The proposed development does not include provisions for boat storage, boat ramps, or liveaboard docking. The proposed development is not expected to generate additional vehicular traffic nor, as a result, demand additional on-site vehicular parking due to its exclusively water-oriented nature. The proposed development does not include provisions for additional outdoor lighting. The proposed development includes provisions for a five-year water quality monitoring program which contains adequate recommendations for spill containment, including provision of a containment kit and use of absorbent carpeting on the dock surface, as well as corrective measures to be undertaken by the applicant in the event of water quality deterioration. Coordination with the United States Environmental Protection Agency is necessary to insure that the proposed water quality monitoring program follows the guidelines of this agency. The proposed development is located in the vicinity of a designated critical habitat of the American crocodile, and the presence of the West Indian manatee in the area is documented. The Florida Game and Fresh Water Fish Commission and the United States Fish and Wildlife Service have offered recommendations to mitigate the secondary impacts of the proposed development on these species of endangered wildlife, including the installation of an educational display and restrictions on the provision of additional marina facilities. Additional conditions and restrictions are appropriate and may be imposed pursuant to sections 9.5-61 and 9.5-63 of the Monroe County Code, Land Development Regulations. Limitations are particularly necessary to minimize the impacts of the proposed development upon neighboring residential uses and the canal, in consideration of the water-oriented nature of the use.
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue Whether Michael Chbat's 2008 application for a Wetland Resource Permit (WRP) to construct a culvert extension across his property in Walton County, Florida, should be approved?
Findings Of Fact La Grange Bayou Estates La Grange Bayou Estates is a residential subdivision in Freeport, Walton County, Florida. The subdivision lies to the north of the shoreline of Choctawhatchee Bay. It can be viewed as divided roughly in half between bayfront lots south of an east-west road that transects the subdivision and lots that are north of the road. The subdivision is platted and the plat is in the public records of Walton County. Filed with the Clerk of the Circuit Court in and for Walton County, Florida, on September 15, 1982, the plat ("the 1982 Plat") shows 29 residential lots in the subdivision as of that date. See Petitioner's Ex. 6. Lots 1 through 16, according to the 1982 Plat, are the bayfront lots, south of a 40-foot wide road designated as a private road in the plat. That road is now known as Alden Lane. Wetlands over which the Department has jurisdiction ("jurisdictional wetlands") comprise much of the southern portion of bayfront lots and the drainage easement. Among the bayfront lots are both Lot 9 which belongs to Mr. Chbat and Lot 8 which belongs to Mr. Sheehey. A 50-foot easement lies between Lot 9 and Lot 8 and is described more fully below. The presence of jurisdictional wetlands on Mr. Chbat's lot over which he hopes to install the culvert extension requires that he obtain a WRP. To the north of Alden Lane are lots numbered by the 1982 Plat as 17 through 29. The lots are served by Alden Lane and, in what is roughly the northeast quadrant of the subdivision, by two other roads. One of the roads is shown on the 1982 Plat as a "40' PRIVATE ROAD." Id. A 2006 aerial photograph introduced into evidence by Chbat designates the road "unnamed." See Chbat Ex. 5. The other is designated as a "graded county road," on the 1982 Plat. By 2006, it had come to be known as Beatrice Point Road. Id. Beatrice Point Road transects a pond that runs roughly 340 feet (excluding about 30 feet of roadway) in a northeasterly direction from Alden Lane to the southern edge of an area north of the subdivision shown on the 1982 Plat to be un-platted. The pond is most likely the result of a "borrow pit" dug in order to obtain fill for the construction of the roads when the subdivision was initially developed. The southern boundary of the pond lies along approximately 140 feet of Alden Lane's northern edge. The pond is across the street from Lots 9, 10 and 11 of the subdivision. The pond is also not far northeast of the 50-foot easement (the "Drainage Easement") between Lots 9 and 8. The Drainage Easement The Drainage Easement is just to the west of Lot 9. It is noted on the 1982 Plat as a "50' EASEMENT (PRIVATE)." Id. The 50-foot wide Drainage Easement runs the length of the western boundary of Lot 9 and the length of the eastern boundary of Lot 8. The northeast corner of the Drainage Easement is approximately 30 feet from the southwest corner of the pond separated from the pond by the roadway of Alden Lane. The eastern boundary of the Drainage Easement is 226.37 feet in length, or if taken to the middle of Alden Lane, 246.3 feet. The western boundary is 206.13 feet long or if taken to the middle of the road, 226.65 feet. The purpose of the Drainage Easement, as is evident from its denomination in this recommended order, is drainage. As Mr. Street definitively put it at hearing, it is "now and always has been intended to drain stormwater to the [B]ay." Tr. Vol. III at 179. Mr. Street's opinion of the function of the Drainage Easement is supported by drawings submitted by Mr. Chbat as part of the WRP application. The drawings show that the Drainage Easement's function is facilitated by three culverts north of the Easement (referred to during the hearing as "pipes") each of which is intended to direct stormwater at its point of discharge toward the Drainage Easement. See Chbat Ex. 1. One of the culverts ("the Drainage Ditch Culvert") serves a drainage ditch that is to the north of the Easement and Alden Lane. According to the drawings, the drainage ditch lies on the other side of the "un-named road" from the pond, that is, to the west of the pond, and is some 40-to-50 feet north of the Drainage Easement. The Drainage Ditch Culvert extends from the ditch to the southern half of Alden Lane from where it appears from the application's drawings that stormwater would be conveyed to the western side of the Drainage Easement along it's border with Lot 8 and on toward the Bay. In fact, it is a functioning culvert that "conveys water from a swale on the side of the road into the [D]rainage [E]asement." Tr. 64. Once in the Drainage Easement, according to the drawings, the water should flow into the Bay out of a "cut," id., that is labeled on the drawings as an "existing trench." See Chbat Ex. 1. The trench, however, has been filled in with sand by tidal activity or sediment deposited by stormwater or both. The trench has not been maintained, and it no longer exists. The other two culverts (the "Pond Culverts") lie east of the Drainage Ditch Culvert. They catch overflow from the pond caused by stormwater and convey it under and through Alden Lane toward the Drainage Easement. The westernmost Pond Culvert (the "Western Pond Culvert") appears to terminate in Alden Lane near its southern edge just north of the Easement. At the time of hearing, however, it was not functioning properly. "[I]t is full of sand and silted up . . .", tr. Vol. I at 58; "[t]he pipe to the west is clogged and it is not functioning." Tr. Vol. I at 64. It is also at an elevation that would keep it from serving drainage purposes in all but the most severe storm events. See Chbat Ex. 9 at 22. The other Pond Culvert, (the "Eastern Pond Culvert") terminates in the northwest corner of Lot 9 at the border between Lot 9 and the Drainage Easement about 10 feet southeast of the terminus of the Western Pond Culvert. The Eastern Pond Culvert is the culvert with which the Amended Permit is concerned, that is, it is the culvert to be extended by the permit. Calling it a "pipe," Mr. Street offered the following about the assistance the Eastern Pond Culvert offers in conveying stormwater into the Drainage Easement and down to the Bay: There is currently a pipe that discharges into that easement. There . . . was an attempt to place the water from the . . . pond into the easement. And the natural flow of water on this entire property from the road to the [B]ay is north to south. At some point, at least 2004, that drainage easement contained a conveyance at its southern end that would safely discharge stormwater to the [B]ay. Tr. Vol. III at 179-80. Petitioner Sheehey and Lot 8 Thomas Sheehey is the owner of Lot 8, where he has a residence in which he makes his home. He has lived in the residence approximately five years. During that time, Mr. Sheehey has fished in the Bay and enjoyed the use of his kayak and his waverunner on the Bay. He also enjoys "sitting down having a cup of coffee and looking at it," tr. vol. III at 151, as well as watching his neighbors fish. The recreational uses to which he puts the Bay is the reason he chose to purchase a bayfront lot in La Grange Bayou Estates. Over the period of time that he has resided on Lot 8, Mr. Sheehey has observed the effects of rain events on his lot and well as lots close to Lot 8. He has also taken pictures of his property and the near-by lots. Among the photographs were four taken after rain events or "after a wet period," tr. vol. III at 88, at some point in the last four years. The four photos were introduced as a composite exhibit, Petitioner's Ex. 2, with each photograph marked as 2A, 2B, 2C or 2D. Mr. Sheehey could not specify when the pictures were taken in the past four years other than that if a picture had a certain dock in it, then it was taken after January of 2009. Petitioner's Ex. 2A was taken from Mr. Sheehey's lot looking toward the Bay. It shows an area of the lot under water separated from the Bay by a ridge. Petitioner's Ex. 2B is a picture taken from Lot 13 looking west across Lots 12, 11, 10, 9 "down through 8." Tr. Vol. III at 86. Much of what is photographed is among trees and vegetation emerging from water standing above the surface of the soil. Petitioner's Ex. 2C is a picture taken from Alden Lane looking south across Mr. Chbat's property. It shows a wide swath of water that extends from the road across most of the property to the Bay. The water is either in a swale or constitutes overflow outside the swale. The most recent of the four is Petitioner's Ex. 2D, which shows the dock referred to by Mr. Sheehey that was built in early 2009. It is a picture taken from Lot number 13 toward the west through Lots 12, 11, 10, 9. Like the others, it shows vegetation standing in water to the north of the Bay. Taken together, the four pictures in Petitioner's Exhibit 2 demonstrate that significant portions of the lots depicted are under water following sufficient amounts of recent rain. The four photographs that comprise Petitioner's Exhibit 2 are not the only photos taken by Mr. Sheehey that were introduced into evidence. Three other photographs of Mr. Sheehey's, Petitioner's Exhibits 7A, 7B and 7C, were admitted following testimony about them from a long-time observer of the flow of water from Alden Lane to the Bay. A Long-time Observer Thomas Eugene Cummins had lived in La Grange Estates "[t]wo months shy of 20 years," tr. vol. III at 7, at the time of his testimony. His house was the fourth to be constructed in the subdivision. Over the two decades of his residence, the pond between Alden Lane and the property north of the subdivision has been in existence. Consistent with the drawings submitted to DEP as part of the application, when asked where the pond overflows today, Mr. Cummins answered "it drains under Alden Lane on to Mr. Chbat's lot." Tr. Vol. III at 8. Asked by Mr. Chesser at hearing, "When the water comes out of the pond, is it possible to know where it spreads?"1/ Mr. Cummins testified: On really heavy rains, I have watched the normal color of the pond change from its dark blackish gray color into the reddish color that the clay has washed down into it, flow under Alden Lane and on to Mr. Chbat's lot, and then proceed west through the wetland on lots eight, seven, six, and my five, and turn reddish color even in my lot. Tr. Vol. III at 9-10. Mr. Cummins knew the source of the "red color" of the stormwater: red clay introduced to La Grange Estates by the County half a decade earlier. Mr. Cummins testified: Beatrice Point Road, which is the road that runs over the pond, about five years ago the county did some repair on the road and actually put red clay in certain spots to even it out. Tr. Vol. III at 9. Prior to the county's work on the road referred-to by Mr. Cummins, there had been no red clay in the neighborhood. Alden Way, for example, has no red clay. It is a road composed of shell. The only red clay in the subdivision is that which is on Beatrice Point Road. The water that runs onto Mr. Cummins' lot following a heavy rain rises to as much as 12 inches.2/ The water rises as high as it does because it is held back by a naturally-occurring land formation between the Bay and Mr. Cummins property. This geo-formation was referred-to at hearing as the ridge line or the ridge. The Ridge The Ridge was described by Mr. Cummins as a vegetated mass of earth that most of the time, even in heavy rains, sits above the water that collects on the bayfront lots of La Grange Estates. The Ridge prevents a substantial amount of stormwater runoff from entering the Bay from the wetlands on the southern portion of the subdivision's bayfront lots. For that reason, the ridge is called "our upland,3/" tr. vol. III at 13, according to Mr. Cummins. Between Lot 9 and Lot 5, the ridge varies in width "anywhere between 10 feet . . . up toward Mr. Chbat's lot, down to [Mr. Cummins'] lot where its around 30 or 40 feet [wide.]" Id. (It may extend, in fact, across all of the bayfront lots.) The ridge meanders not far from the shoreline. Id. In some places it is as narrow as five feet. The height of the ridge varies as well from as low as one foot to as high as two and half feet. Mr. Street also testified about the Ridge, referring to it in his testimony as a "ridge line": Now, there is a ridge line, and there's been a lot of testimony about this ridge line, that it exists across all of the lots. My testimony was, essentially, related to the review that I did, which was primarily associated with lots eight and nine, and the drainage easement between them. And from what I can tell, the elevation of that ridge line is give or take three. Elevation three, not a height of three. An elevation of three. It could be lower, and perhaps, is higher. And its subject to the vagaries of a number of factors, flow of stormwater, wave action, tidal influence, and the like. And these accretions and depositions of sand over time change that ridge line. And sometimes, it opens up. And sometimes it may not have a natural opening, depending on where you are along that entire stretch of beach. * * * [T]o the extent there is an opening in that ridge line, water will flow naturally to the bay. Tr. Vol. III at 180-181. An "east west flow of water," tr. vol. III at 181, along the bayfront lots, that is, a flow of water either in an easterly direction or a westerly one is contrary to the flow from Alden Lane north of the lots to the Bay south of the lots. Whether flowing east or west, the water in the southern portions of the bayfront lots is "controlled by the ridge line." Id. In other words, stormwater that flows from north to south across the bayfront lots, including Mr. Chbat's and the Drainage Easement, is going to collect and begin to flow from east to west or west to east at some point north of the Ridge before it drains into the Bay. The only exception to east-west flow, as made clear by Mr. Street, is when and if there is an opening in the Ridge that allows the water otherwise held back by the Ridge to flow southward into the Bay. The east-west flow of the water along the Ridge was described at hearing as "unnatural." Id. In fact, it is not un-natural. The Ridge is the cause of the east-west flow and, as Mr. Street testified, the Ridge is the result of natural processes such as tidal influence, wave action, accretion and deposition of sand.4/ The Ridge is shown in Petitioner's Exhibit 7A,5/ another photograph taken by Mr. Sheehey. The ridge as shown in the picture is well vegetated and above water to its north and higher than the Bay to its south. It is quite clear that if there is no opening in the ridge to the Bay, stormwater north of the ridge is forced to flow in east-west directions and is prevented from flowing into the Bay. Petitioners' Exhibit 7B is a photograph of the southern terminus of a swale (see paragraphs 40 - 49, below) on Mr. Chbat's property. It shows the swale cut through the Ridge. Water, however, does not appear to be running from the end of the swale into the bay. It appears that the end of the swale is a few feet from the Bay separated by a narrow sandy area on the shore. Nonetheless, the photograph shows that there is potential for stormwater to flow from the swale when the swale has more water in it. Petitioner's Exhibit 7C is a picture of the pond6/ across the street from Mr. Chbat's Lot 9. Mr. Chbat and Lot 9 Michael Chbat is the owner of Lot 9. He purchased the lot "[t]o build a house on it." Tr. Vol. I at 22. Because he has family close by (in Fort Walton Beach), Mr. Chbat expects to use a house built on the lot for weekend visits. His ultimate aspiration is to live in a house on Lot 9 after he retires from his position as a construction engineer with the City of Tallahassee. At hearing, Mr. Chbat described Lot 9 on the day he bought it: "the lot was overgrown. It drained from north to south. It had water standing on it. And it had a pipe [the Eastern Pond Culvert] on the northwest corner discharging." Tr. Vol. I at 23. He also described the state of the lot at the time of hearing. The Eastern Pond Culvert on the northwest corner was still there. The lot had been cleared to some extent to rid it of invasive species. Overgrown vegetation was trimmed or cleared to make room for a driveway permitted by the Department and "a parking pad in the front area of it, as well as an access pad in the uplands." Id. A dock had also been constructed from the property into the Bay. The most significant difference between the lot at the time of purchase and the lot at the time of hearing for purposes of this proceeding is that the lot now has a swale (the Swale) that runs from the point of discharge of the Eastern Pond Culvert "all of the way to the bay area." Id. The Swale The Swale was put in sometime after March 20, 2007, as the result of a Settlement Agreement fully executed on that date "By and Between Michael Chbat and Thomas L. Sheehey." Petitioner's Ex. 10. The Settlement Agreement followed events that commenced in 2004 when Mr. Chbat filed an application (the "2004 Application") with DEP for a WRP primarily to construct a house and a boardwalk leading from the house on Lot 9 to a dock in the Bay. The 2004 Application also proposed the extension of the Eastern Pond Culvert with a "pipe" along the western boundary of Chbat's property in a manner substantially similar to the culvert extension allowed by the Amended Permit that is the subject of this proceeding. On October 28, 2005, DEP proposed that the 2004 Application be granted. The permit (the "Proposed Original Permit") was assigned No. 66-0235320-001-DF. See Petitioner's Ex. 10, at 2. The Proposed Original Permit was challenged by Mr. Sheehey when he "filed a Petition for Administrative Hearing contesting certain action authorized under the [Proposed Original] Permit . . . specifically the relocation of a drainage pipe . . . ." Petitioner's Ex. 10, at 2. After referral of the petition to DOAH, Mr. Chbat and Mr. Sheehey wrote in the Settlement Agreement that they had "determined that it is in their best interests to settle this matter amicably pursuant to the terms hereafter". Id. Among the terms is that Chbat would file an Amended Application. See id. The agreed-to amendment to the 2004 Application was attached to the Settlement Agreement as Exhibit "A," a drawing of a "Drainage Swale Plan," produced by Genesis Group for Mr. Chbat. The drawing depicts a swale that runs from the discharge point of the Eastern Pond Culvert nearly the full length of the western boundary of Lot 9 to the Bay. See Exhibit "A" to Petitioner's Ex. 10. The Swale was designed to take the place of the 2004 Application's proposal for a "pipe"7/ attached to the point of the discharge from the Eastern Pond Culvert. The Settlement Agreement received the support of DEP because the Department believed that a swale would assist in improving the quality of the stormwater discharged to the Bay over the untreated discharge from the end of the "pipe." Pursuant to the terms of the Settlement Agreement the 2004 Application was amended. The Department amended the Proposed Original Permit accordingly and final agency action was taken with the issuance of a permit to Mr. Chbat (the "Final Original Permit") found in DEP Permit File No. 66-0235320-001- DF. Installation of the Swale The Swale was installed, but it did not work as intended. The result of the Swale's installation was more water on the lot rather than less. Mr. Chbat described the after-effects of the Swale: "it started bringing more water to the lot . . .". Tr. Vol. I at 31. The increased amount of water is the result of several factors, one of which is tidal influence: the tide from the Bay pushes water into the Swale. "[A]bout halfway on the swale . . . that water from the bay was meeting the water from the pipe . . .". Id. The water from the Bay tide and the stormwater conveyed by the Swale would meet at "about the middle of the span of the swale." Id. The result was "a lot more water," id., on the lot. Mr. Thomason confirmed Mr. Chbat's assessment that the reason the Swale did not function as effectively as necessary is tidal flow onto Lot 9 from the Bay particularly from high winds. But tidal flow onto Lot 9 and the interruption in the discharge of stormwater through the Swale are not the only problems. There is also a maintenance factor that accompanies tidal flow: sand deposition. Mr. Thomason elaborated: "[D]uring storm events or [just normal] wave action in the bay, sand is brought back up on to . . . the sandy area at the end of [Lot 9] next to the [Bay.]"8/ Tr. Vol. I at 62. The influx of sand onto Lot 9 is not just a problem for adequate functioning of the Swale. The Drainage Easement has "the same problem." Id. Both the Swale and the Drainage Easement are plagued by deposition of sand pushed landward by normal tidal influences and storm events. Maintenance of the Swale and the Drainage Easement, therefore, would assist the drainage of stormwater into the Bay. The tidal influence and maintenance issues that Mr. Chbat encountered with the Swale led him to apply for a different and new permit. That application was filed in 2008. The 2008 Application Mr. Chbat filed a "Joint Application for Works in the Waters of Florida" with DEP on August 1, 2008 (the "2008 Application"). See Chbat Exhibit 1. The work to be approved was similar to the work originally proposed in the 2004 Application in that both applications proposed installation of a "pipe" to be fixed to the discharge point of the Eastern Pond Culvert that would run along the western boundary of Lot 9 toward the Bay. A description of the work is contained in Section 10 of the 2008 Application: "Extension of an existing stormwater pipe within a private lot approximately 150 feet. The slope for the proposed pipe extension will be at minimum so that stormwater will be treated further, and minimizing erosion." Chbat Ex. 1 at 3. After the filing of the 2008 Application, Mr. Chbat learned that Mr. Sheehey objected to the newest Chbat proposal because he believed 150 feet is not lengthy enough to clear the Ridge. See Chbat Exhibit 2. In order to cure the objection, Mr. Chbat proposed a modification to the 2008 Application. He attached a "sealed and signed drawing," id., to a letter dated September 18, 2008, that he submitted to DEP. The drawing shows the extension to be 177 feet, 27 feet more than initially proposed by the 2008 Application. The additional 27 feet was intended to ensure that the discharge would be directly into the Bay in order to "eliminate any possible run-off impact to adjacent properties." Id. The modification was accepted by DEP." See exhibit number 19/ attached to the Amended Permit, Chbat Exhibit 4. There was conflicting evidence in the proceeding on whether the outfall from a culvert extension of 177 feet will be bayward of the Ridge. The issue was put to rest by Mr. Street’s testimony in rebuttal at the hearing. See Tr. Vol. III at 194 and 203-4. His testimony establishes that the point of discharge at the end of the culvert extension will clear the Ridge so that the discharge will be directly into the Bay. The Mound The culvert extension is designed at an elevation and with cover (presumably sod). The extension runs through jurisdictional wetlands and segments them. It does not, however, isolate any portion of the wetlands. The wetlands on Mr. Chbat's property and those to the immediate east and west of it, therefore, will retain their status as jurisdictional wetlands should the extension be installed. With its sod cover, the culvert extension will be a mini-berm (or a "mound" as Mr. Street called it) at an elevation of 17 to 18 inches above grade. Water that pools to its west will no longer be able to flow eastward of the mound (except rarely under the most extreme weather events.) Conversely, water that collects to its east will no longer be able to flow westward of the extension. It would have to be a severe storm event for water to rise above the mound. Mr. Chbat has never seen water rise to 18 inches above grade and Mr. Cummins testified the highest water ever gets on his property is roughly 12 inches. The Department approved the 2008 Application as modified to lengthen the extension to 177 feet and issued the Amended Permit. But an incorrect and critical assumption was made during review of the application that related to the mound. Review of the 2008 Application During his review of the application, Mr. Street, as DEP's stormwater engineer, assumed from the drawings that the Drainage Easement is functional.10/ The assumption was expressed in Mr. Street's testimony in the Department's case-in-chief: Q [D]id you determine whether the pipe, as it would be mounded . . . [the culvert extension covered in sod] . . . would create problems for storm water flow? A I looked at that. There were two conclusions that I drew. One was that the mound would create a higher water elevation on the Chbat property east of the mound, but would not create standing water west of the mound extending into the [Drainage E]asment . . . . Which on the drawings that I reviewed showed an existing trench at the south end of that easement. And it was my opinion that any water that fell west of the mound would exit through the easement. Tr. Vol. II at 92 (emphasis added.) Mr. Street's assumption that water would not pool to the west of the mound in the Drainage Easement and toward Mr. Sheehey's property was contradicted by Mr. Sheehey's stormwater engineer, Mr. Porterfield. THe Porterfield Testimony and Support for It at Hearing The testimony at hearing of Mr. Porterfield, who conducted a site visit, established the opposite of what Mr. Street assumed. The volume of stormwater runoff that pools east of the mound, that is, water on Lot 9, will not be as great as the volume as the water that pools west of the mound. Water that would have flowed onto Lot 9 from the Eastern Pond Culvert will flow directly to the Bay via the culvert extension. The extension will also protect the Drainage Easement and Lot 8 from water that would have flowed from the Eastern Pond Culvert onto that property. But there is a significant difference between stormwater to the west of the extension and to the east. To the extension's west, the Drainage Easement and Lot 8 will have to contend with stormwater from the Drainage Ditch Culvert, the culvert north of Alden Lane that does not convey stormwater from the pond but that like the Pond Culverts has a discharge point directed at the Drainage Easement. How often and to what extent pooling of stormwater will occur west of the mound due to its presence is difficult to determine on the state of this record.11/ No studies or analyses of the likelihood and severity of storm events and the volumes of stormwater runoff that would be produced by them were conducted by any of the stormwater engineers in the case nor were any such analyses done with regard to pooling caused by the presence of the covered culvert extension. The testimony of Mr. Porterfield, however, and other evidence, demonstrates that that additional collection of water west of the mound caused by the mound will occur following heavy rain. Mr. Street was present in the hearing room throughout the entire hearing, including during the presentation of Mr. Sheehey's case. As Mr. Street candidly testified on rebuttal after he had heard all the evidence: I would also maintain that the drainage easement which has signs of a historical usage as a drainage easement with a trench, in fact, that conveys water safely to the bay, that should be re-established and maintained. That’s what it’s there for.” Tr. Vol III at 181 (emphasis added.) Thus, it became clear to Mr. Street after listening to all the evidence in the case that the Drainage Easement has not been properly maintained. The trench that was expected to carry stormwater toward the Bay no longer exists. In short, the testimony of Mr. Street, for all his many strengths as a witness, falls short of supporting the position of the Department and Mr. Chbat. Having never visited the site,12/ he approved the project on the basis of drawings that do not conform to the on-site physical reality. When presented with the evidence at hearing that the Drainage Easement is not functioning, he championed re-establishment and maintenance of the Drainage Easement. Mr. Chbat placed part of the Swale's functionality problem on the tide pushing stormwater northward but his case also recognized the maintenance problem caused by deposition of sand that besets the Swale. Mr. Thomason, moreover, recognized that the Drainage Easement has the same maintenance issue. Mr. Chbat's stormwater engineer testified During storm events or just normal wave action in the bay, sand is brought back up on to. . . the sandy area at the end of [Chbat's] lot next to the water. And so that . . . tends to inhibit the natural flow down the swale . . . we have the same problem on the drainage easement . . . where sand builds up in that discharge. Tr. Vol. I at 62 (emphasis added). From this record, it is clear that neither the Swale nor the Drainage Easement functions properly. Their functional status, moreover, is due in significant part to lack of maintenance. It may be that maintenance ultimately will not solve the problem; maintenance efforts to keep the Swale and Drainage Easement clear of the sand deposited by tidal activity may require too much effort for them to be reasonably required. But that evidence was not produced. Indeed, the record was silent as to any maintenance efforts with regard to the Swale by Mr. Chbat or with regard to the Drainage Easement by the owner of the easement. The record is also silent as to whether DEP voiced any concern about the maintenance issues that beset the Swale. It is clear that concern was not raised by the Department in regard to the Drainage Easement until the rebuttal phase of the hearing, since the assumption was made that the easement was properly maintained. Whatever communication may have occurred with regard to maintenance issues among the parties, the Department issued the Amended Permit.13/ The Permit/Authorization Number for the Amended Permit is 66-235320-002-DF.14/ Issued December 19, 2008, the Amended Permit has an expiration date of December 19, 2013. The expiration date coincides with the construction phase of five years on the face of the Amended Permit. See Chbat Ex. 4. Mr. Sheehey Challenges the Amended Permit On January 6, 2009, Mr. Sheehey, pro se, filed with DEP a petition (the "Petition") seeking a formal administrative hearing with regard to "Amended Wetland Resource Permit 66- 00235320-002-DF." Although the Petition makes reference to the Amended Permit, it seeks in the first instance enforcement of the Settlement Agreement that relates to the Final Original Permit. The Petition states: "Petitioner believes that the Florida Department of Environmental Protection has jurisdiction over this matter and should enforce the March 20, 2007 Settlement Agreement which requires that Permittee act in conformance with Exhibit 'A' of the Agreement [the drawing of the Swale]." In the event that DEP declined to enforce the Settlement Agreement, the Petition sets out disputed issues of material fact that relate to issuance of the Amended Permit. The Petition was referred to DOAH on February 19, 2009. One week before the final hearing, the Department filed the motion in limine that is discussed in the Preliminary Statement of this Recommended Order. The motion was granted to the extent that it sought to preclude Sheehey from introducing evidence that supported enforcement of the Settlement Agreement since the 2008 Application, which, while bearing similarity to the 2004 Application, is nonetheless an independent application that should be approved or denied on its own merits without regard to the 2004 Application, the Proposed Original Permit, the Settlement Agreement or the Final Original Permit. The case proceeded to hearing on the remaining issues raised by the Petition: 1) whether Sheehey has standing to contest approval of the 2008 Application; 2) whether Chbat gave the notice required by Section 373.413, Florida Statutes, and 3) whether Chbat's application meets the criteria in statutes and rules for issuance of the Amended Permit. Standing The findings of fact relevant to Mr. Sheehey's standing are found in paragraph 9, above. Notice Notice of the 2008 Application was published in The Defuniak Springs Herald-Breeze, a newspaper published in Defuniak Springs, Walton County, Florida. The notice was published on October 23, 2008. The evidence presented by Mr. Sheehey concerning lack of legal notice consisted of testimony by Mr. Sheehey at hearing in response to questions from his counsel. See Tr. Vol. III at 134. The testimony does not establish that Mr. Sheehey was a person who had filed a written request for notification of any pending application affecting his particular area. The testimony of Mr. Sheehey, moreover, establishes that he was given oral notice of the application by Mr. O'Donnell within four days of its filing. WRP Permitting Criteria To obtain a WRP, an applicant must satisfy the criteria in Florida Administrative Code Chapter 62-312 and Section 373.414, Florida Statutes. These criteria govern a range of topics including water quality. Water Quality15/ Florida Administrative Code Rule 62-312.080 provides that no permit shall be issued unless the Department has been supplied with reasonable assurances that the proposed work will not violate water quality standards. Water that enters the pond spends some amount of time in the pond (residence time) before flowing out. During residence time, solids drop out of the water so that the quality of the stormwater that flows out of the pond is reasonably expected to be better than the quality of the stormwater runoff when it entered the pond. Vegetation surrounding the pond, furthermore, enhances the quality of the water in the pond, whether the water’s source is runoff or rain falling directly into the pond. The water that flows out of the pond north of Alden Lane is “existing discharge.” Tr. Vol. I at 65. It generally made its way to the Bay prior to the Swale. Some of it makes its way to the Bay via the Swale now; some of it outside the Swale as overflow. The culvert extension will convey that discharge to the Bay if the extension is installed. The quality of the water is not significantly less when it discharges to the Bay via the Swale or otherwise from the Chbat property than when it would enter the culvert extension should it be installed. It is true that the Swale would have provided filtration and additional treatment to the discharge from the Eastern Pond Culvert as does the Chbat property in general. But that does not mean that the quality of the culvert’s discharge is a concern. The Swale may have been an option preferable to the extension of the culvert as far as water quality goes but all parties agree that the Swale has failed as a conveyance (albeit Mr. Sheehey maintains that the Swale would work with proper maintenance.) That there is a discharge method that improves the quality of the discharge, such as a swale, does not mean that the discharge to the Bay via the culvert extension is of insufficient quality. None of the parties tested the quality of the discharge from the Eastern Pond Culvert. The Department, nonetheless, offered evidence with regard to its quality. The Department concluded that the quality of the pond and its discharge were not of concern. Had the pond been contaminated to an extent that would have given rise to concerns, moreover, the Swale or the culvert extension as a means of conveying the discharge to the Bay would not have made a “discernible difference.” Tr. Vol. II at 80. The Department provided evidence of assumptions made with regard to the quality of the water that led the Department to conclude that testing of the discharge was unnecessary. Mr. O’Donnell, the Department’s expert in the application of state rules and statutes in wetland resource permitting, detailed the assumptions at hearing: My assumption was that that pond was dug some time in the past as a way to provide fill for roads. That it was never any part of . . . [a] stormwater treatment system. And that it conveyed upstream water through the pond and then on down into Choctawhatchee Bay. It was strictly a [borrow pit and a conveyance pond.] It was never permitted as a treatment system in any way that I was aware of in my diligence [in determining whether the extension should be permitted.] Tr. Vol. II at 79. Once Mr. O’Donnell’s testimony entered the record at the behest of Mr. Chbat, the burden shifted to Mr. Sheehey to prove that the applicant had not provided reasonable assurance of water quality. Mr. Sheehey did not offer evidence of any testing of the discharge. Nor did he offer testimony that rebutted Mr. O’Donnell’s opinion. In fact, the testimony of Mr. Wilkinson (Mr.Sheehey's witness) supported Mr. O'Donnell's opinion with regard to water quality. See Tr. Vol. III at 112. In sum, the Department made assumptions that are found to be reasonable based on Mr. O’Donnell’s expertise and experience. Those assumptions were not shown to be unreasonable by Mr. Sheehey. The Department’s conclusions about water quality flow directly from Mr. O’Donnell’s reasonable assumptions. Reasonable assurances have been provided that the project will not violate water quality standards. Public Interest Test Choctawhatchee Bay is not designated as an “outstanding Florida water.” The test that Mr. Chbat must meet therefore is whether the activity proposed by the permit application is “not contrary to the public interest.” § 373.414, Fla. Stat. In making that determination, the Department is directed by the statute to consider and balance seven criteria. See § 373.414(a) 1-7, Fla. Stat. Of the seven, three are at issue once water quality is determined to be of no concern. Two of the three, “[w]hether the activity will be of a temporary or permanent nature,” Section 373.414(1)(a)5., Florida Statutes, and “[t]he current condition and relative value of functions being performed by areas affected by the proposed activity,” Section 373.414(1)(a)7., Florida Statutes, do not require in-depth consideration. With regard to the nature of the project time-wise, the evidence establishes that the culvert extension is intended to be permanent. With regard to current condition, the area affected by the proposed activity is a residential lot, a substantial portion of which is under water following heavy rain. To facilitate the conveyance of stormwater, the lot is served by the Swale. The Swale is not functioning optimally because of lack of maintenance and because of the Ridge. With regard to relative value from the standpoint of water quality, the function being performed by the lot and the Swale is little, at least as established by this record. While it is certainly true that the lot with or without the Swale will filtrate and otherwise treat stormwater runoff from the pond, the difference in the quality of the stormwater conveyed by the culvert extension from that which would enter the Bay without the extension is not significant. See the discussion above of Mr. O’Donnell’s accepted opinions. Of the seven statutory criteria to be weighed and balanced by the Department, the one that is central to this case is found in subparagraph 1., of subsection (1)(a): “[w]hether the [culvert extension] will adversely affect . . . the property of others.” The “property of others” in this case is the property of Mr. Sheehey. The Project’s Effect on the Property of Mr. Sheehey. For the reasons discussed in paragraphs 63-70, above, Mr. Chbat has failed to provide reasonable assurances that the project will not have a detrimental effect on the property of Mr. Sheehey. The extent of the detrimental effect to Mr. Sheehey's property is difficult to determine from this record but it is highly likely based on all the evidence of record that there will be a detrimental effect: additional flooding in heavy rain events.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection deny17/ the Amended Permit for the failure of Mr. Chbat to provide reasonable assurances that the project will not adversely affect Mr. Sheehey's property. DONE AND ENTERED this 14th day of January, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2010.
Findings Of Fact The Applications. Permit DC51-189086 (Moon Lake Road Site). The County's application for Permit DC51-189086 was filed on 11/13/90. It sought to construct Moon Lake Road WWTP, Sprayfield, and Percolation Pond System. The design treatment capacity sought for Moon Lake Road WWTP was .800 MGD, for the sprayfield was .215 MGD, and for the percolation pond system was .185 MGD. The application for Permit DC51-189086 was denied on 2/13/92. Notice of the proposed agency action was published in accordance with Department requirements, and the County timely petitioned for a formal administrative hearing. On 11/16/93, the County amended its application for Permit DC51-189086 to exclude the proposed Moon Lake Road WWTP, in order to defer construction of the WWTP to a later date. On 1/5/94, the County amended its application for Permit DC51-189086 to withdraw the request for a surface water permit and a stormwater permit. Due to the recent interagency agreement between the Department and SWFWMD, the County decided to defer surface water and stormwater permitting for this facility until after the construction permit was issued. Permit DO51-194674 (Wesley Chapel WWTP/Oakley Grove Site). The County's application for Permit DO51-194674 was timely filed on 2/12/91. The application sought authorization to operate the County's Wesley Chapel Wastewater Treatment Plant (WWTP) at .750 MGD and Oakley Grove Percolation Pond System at .600 MGD. The application for Permit DO51-194674 was denied by the Department on 7/18/91. The notice of permit denial alleges that the County failed to submit requested additional information, that an inspection of the site had revealed a 6-inch irrigation pipe undermining a percolation pond berm, and that the Certificate of Completion of Construction did not accurately reflect observed aspects of the disposal area. The County timely petitioned for administrative hearing. The application for Permit DO51-194674 was amended on 11/16/93 to limit the treatment capacity of Wesley Chapel WWTP to .600 MGD. Permit DO51-199516 (Ryals Road Site). The portion of this case concerning Permit DO51-199516 involves the County's request to reactivate operations at the Ryals Road Percolation Pond System. The requested disposal capacity is .1075 MGD, which is about half of its disposal capacity when it previously was in operation. Ryals Road Percolation Pond System is a reuse facility owned by the County, and constructed in 1985 as a replacement for nearby Oaks Royal Percolation Pond, where a sinkhole had developed. The County's initial construction permit application (#DC51-100407) for the Ryals Road Percolation Pond System was filed with the Department in 1985. The Department granted the application for Permit DC51-100407 on 7/10/85. Ryals Road Percolation Pond System's permitted disposal rate was about .200 MGD. Construction of Ryals Road Percolation Pond System was completed in 1986, and operation began immediately thereafter due to the appearance of a new sinkhole at the Oaks Royal Percolation Pond. The Department was advised of the new sinkhole in the Oaks Royal Percolation Pond in 1/86 and in 2/86 and was advised that reclaimed water from Oaks Royal WWTP was being diverted to Ryals Road Percolation Pond System. The Ryals Road Percolation Pond System operated from 1986 through 1989. It received reclaimed water from Oaks Royal WWTP. A sinkhole developed in Ryals Road Percolation Pond System in 1987. The County backfilled the sinkhole and advised the Department of the problem. The County's initial operation permit application (#DO51-142683) for Ryals Road Percolation Pond System was filed with the Department in 1989. The Department granted the County's application for Permit DO51-142683 in 8/89. It does not contain any permit conditions dealing with the potential for sinkhole formation at the Ryals Road Percolation Pond System. At the time, the Department anticipated that the Ryals Road Percolation Pond System would be in operation for only a year or two. The County operated Ryals Road Percolation Pond System under Permit DO51-142683 until sometime in 1990, without further sinkhole or land subsidence problems. Ryals Road Percolation Pond System was taken out of service in 1990, when Oaks Royal WWTP was abandoned. Oaks Royal WWTP was taken out of service because, after completion of Southeast WWTP, it no longer was needed. On a routine monitor well sampling report to the Department dated April 30, 1990, the County's laboratory supervisor noted that the Oaks Royal WWTP had been taken out of service prior to January, 1990. On a subsequent report dated May 29, 1990, the County's laboratory supervisor noted that monitor wells at the Ryals Road site had been destroyed and that no ground water samples could be taken or reported. This report also noted that no arrangements were being made to replace the monitor wells since the Oaks Royal WWTP was "no longer on-line." The County never formally withdrew or surrendered its operation permit DO51-142683 for the operation of the Oaks Royal WWTP and Ryals Road Percolation Pond System. The Department never took action to revoke or terminate the Oaks Royal/Ryals Road operation permit and never gave the County notice of intent to do so. The County first notified the Department of its intent to "revive" the Ryals Road Percolation Pond System through letters dated 4/12/91 and 4/18/91. The County attempted to reactivate the facility by letter rather than permit application because it believed the facility was already authorized to operate pursuant to Permit DO51-142683. After receiving no response to its 4/91 letters, the County sent the Department a follow-up letter dated 6/10/91 again asking to "revive" Ryals Road Percolation Pond System. This letter refers to the County's request to reactivate the system as a "minor modification" to Permit DC51-150232C, which authorized construction activities at the County's Southeast WWTP. The letter sought a minor modification of the construction permit instead of an amendment to Permit DO51-142683 because the County was unsure of the status of the Ryals Road Percolation Pond System operation permit and had been advised by Department employees that this would be the most expeditious way to handle its request. The County's request for a minor modification was assigned permit identification number DO51-199516, and the "O" signifies an operation permit application. The County does not know why its request to reactivate Ryals Road Percolation Pond System was treated by the Department as a new operation permit application. The County first learned that its request to reactivate Ryals Road Percolation Pond System had been assigned a new operation permit identification number when it received notice of permit denial. The "application" for Permit DO51-199516 was denied on 8/26/91. The County timely petitioned for a formal administrative hearing. The Notice of Permit Denial for Permit DO51-199516 alleged that Ryals Road Percolation Pond System is not suitable for rapid rate disposal due to the high potential for subsidence activity, that this potential is demonstrated by the appearance of sinkholes in 1985, 1986 and 1987, and that boring logs and other information in the ground water monitoring plan shows a potential for sinkhole formation. Regardless of the confusion in processing the County's request regarding the Ryals Road site, the County announced clearly and unequivocally at final hearing that it no longer wanted its request to reactivate the Ryals Road Percolation Pond System to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP). Rather, it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a), and it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit). Alternatively, and only if it was determined that Permit DO51-142683 no longer was in effect, the County wanted its request to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP) or as an application for a new operation permit. Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit) expired on August 5, 1994. Drainage Ditches in Oakley Grove and Moon Lake Percolation Pond Systems. Drainage ditches are present at the Oakley Grove and several other County Percolation Pond Systems; they are proposed for the Moon Lake Percolation Pond System. (Drainage ditches are not present at the Ryals Road Percolation Pond System.) A "relief drainage" system is a system of drainage ditches used to lower a high water table, which is generally flat or of a very low gradient. There are 4 types of relief drainage ditch systems: parallel, herringbone, double main and random. Correspondence between the County's consultants and the Department usually described the on-site drainage ditches at the County's percolation pond systems as "perimeter ditches." Although the County's ditches do not necessarily completely surround each pond, it is a fair description of the ditches. They are a network of ditches that, together, surround the sites. The network varies to some degree from site to site. Moon Lake Road Percolation Pond System is designed to have double main type drainage ditch system; Oakley Grove Percolation Pond System has a random type ditch system. The County's consultants began referring to the ditches as "perimeter ditches" in part because it was a term used by members of the Department's staff. But both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Ground water will seep into the relief drainage ditches at the County's percolation pond system. During and after any rainfall event, water infiltrating into the ground in close proximity to a drainage ditch will be encouraged to seep into the ditch. During seasonally wet periods, when ground water elevations tend to rise above normal levels, ground water both on and off- site will seep into the ditches. After extreme rainfall events delivering large volumes of water to the site, elevated ground water mounding would occur and ground water will seep into the drainage ditches. The invert elevations of the relief drainage ditches located at the County's percolation pond systems were set to the approximate normal water level elevation. As a result, the ditch inverts will normally be wet, and ground water normally will seep into ditches in normal weather conditions even if the water table is not being recharged by reclaimed water. The principal design goals for the drainage features located at the County's percolation pond systems are: (a) ditch construction provides an inexpensive source of fill material; (b) using on-site ditch material allows pond bottoms to be kept higher above the water table; (c) ditches buffer adjacent property from recharge impacts; (d) ditches buffer the site from adjacent land use practices; (e) ditches provide a constant boundary condition by flattening seasonal fluctuation in rainfall, runoff, water table elevations and the potentiometric surface of the deeper aquifer system; (f) ditches serve to quickly drain rainfall that may hinder the recharge performance of the percolation ponds; (g) ditches provide a visible indication of site performance; and (h) ditches are part of the site's stormwater and overflow system. Although the collection of reclaimed water in the ditches is not the primary goal of these drainage features, it is recognized that some reclaimed water would be collected in the ditches as a result of the use of the drainage features to improve the performance of the percolation ponds, depending on the application rate and weather conditions. It is possible that reclaimed water applied to the percolation ponds will percolate into the ground and combine with native ground water, and that the resulting mixture will infiltrate the drainage ditches. As with all land application systems, water applied to percolation ponds will migrate downgradient in the surficial aquifer system and blend with other waters recharging this system. Surface waters downgradient from percolation pond cells, whether in the relief drainage ditches or off-site, will receive a blend of rainwater, direct runoff, water originating from the percolation ponds and ground water, in various proportions. Most surface water is designed to leave the Oakley Grove site at the eastern discharge point. Surface water leaving the site at this point flows east under Interstate 75 and into a forested wetland, approximately 150 acres in size, located to the east of I-75. Surface water then flows from the southwest corner of the wetland into a linear wetland and channel system, which conveys water west, ultimately discharging into Big Cypress Swamp, another wetland system several thousand acres in size. The other discharge point is from the southwestern corner of the Oakley Grove site. From the southwest outfall, surface water flows into a wetland and channel system that conveys water west and then north into Big Cypress Swamp. Surface water also is designed to discharge from the Moon Lake Road site via two outfalls. Both are located on the east side of the site. Discharges would enter an adjacent cypress wetland system consisting of hundreds of acres and meander approximately two miles in a northeasterly direction to a point of intersection with the upper reaches of the Pithlachascotee River. Status of Reclaimed Water Travelling 100 Feet or More from Percolation Pond Cells to Drainage Ditches. The Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water. This practice is derived from Department rules and from the Department's expectation that effluent percolating into the ground water and travelling 100 feet through the soil no longer will have the characteristics of effluent, for permitting purposes, when it reaches the surface water body. One hundred feet generally is recognized in the engineering field as usually sufficient area to permit adequate treatment, dilution and mixing of effluent as it travels through the soil matrix so to be virtually indistinguishable from normally occurring ground water, for permitting purposes, when it reaches the surface water body. The treatment, dilution and mixing of effluent occurs through a variety of chemical, biological, absorptive and physical processes that are well documented in the field of sanitary engineering. Although the Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water, the facts of individual cases must be considered to determine whether treatment afforded by 100 feet of travel through the ground makes reclaimed water "virtually indistinguishable" from other ground water so as to be virtually indistinguishable from naturally occurring ground water, for permitting purposes, when it reaches the surface water body. This is reflected in the fact that Department's rules make 100 feet the minimum setback distance. In contrast to diffuse discharges to nearby surface water bodies, the Department's rules treat discharges to surface waters via a ditch system that collects and concentrates reclaimed water differently. By rule, such discharges require a surface water discharge permit. If reclaimed water travels through the ground far enough before infiltrating drainage ditches, it would be treated and diluted to the point that it is in fact indistinguishable in chemical or biological composition from native ground water and no longer should be considered reclaimed water or effluent. How far is the dispositive question in determining whether a surface water discharge permit will be required. Setback Distance from On-Site Ditches to Percolation Ponds at Oakley Grove and Moon Lake Road Sites. Relief drainage ditches at Moon Lake Percolation Pond System are designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the pond to the ditch invert. Relief drainage ditches at Oakley Grove Percolation Pond System also were designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the percolation pond to the ditch invert. However, primarily as a result of changes to the drainage system required by SWFWMD as part of its permitting process, and minor siting imperfections which occurred during construction, parts of the drainage ditch system at Oakley Grove Percolation Pond System are located closer than 100 feet from the percolation ponds. To locate all Oakley Grove drainage ditches 100 feet or more from the percolation ponds, it will be necessary to reduce the size of the ponds. In the new configuration, the design loading rate would have to be increased to .8 from .58 gpd/ft2 (gallons per day per square foot) of pond bottom in order to maintain the .600 MGD design loading capacity of the Oakley Grove Percolation Pond System. Even assuming the predicted hydraulic capacity of Oakley Grove site, the actual disposal capacity for the site cannot be determined until it is determined how much of a reduction in pond size is required. The County has not made those determinations yet. Seepage of Reclaimed Water from Percolation Ponds at Oakley Grove Percolation Pond System to Drainage Ditches. Although constructed with a design disposal capacity of .600 MGD, until recently the County has loaded the ponds at Oakley Grove under the Oakley Grove construction permit at an actual average rate of approximately .200 MGD. (Maximum actual loading has been approximately .250 to .270 MGD.) This average loading rate required effluent to be loaded onto the ponds at the rate of approximately .19 gpd/ft2 of pond bottom. In November, 1993, the County stopped loading the ponds at Oakley Grove. During site visits to Oakley Grove on 4/15/91, 7/11/91, 7/12/91, 8/27/91, 10/12/93 and 12/7/93, Department personnel observed that ditch inverts, and some points even higher on berms on the pond side of ditch inverts, were wet and that water had collected in some the ditches, while other ditches and surface water outfalls were not wet. The wet ditches and berms seemed to correspond with the loading of ponds. Rainfall at the Oakley Grove site during the 10-day period immediately preceding these Department site visits was as follows: Site Visit Inches of rainfall Gallons of rainfall 4/15/91 3.58 9,786,659 7/11/91 5.41 14,789,337 7/12/91 5.60 15,308,742 8/27/91 2.91 7,955,078 10/12/93 1.02 2,788,378 12/7/93 0.03 82,011 The precise source of all of the water saturating the wet berms and ditch bottoms observed by the Department personnel was not clear from the evidence. Some of the wet berms and ditch bottoms probably were the result of rainfall that collected in portions of the ditch system due to uneven grading during construction, modifications to the ditch system required by SWFWMD, and the County's maintenance practices. But the evidence also suggests that seepage was occurring from the percolation ponds to the drainage ditches, in some cases at points higher on berms on the pond side of ditch inverts. It also was not clear from the evidence whether the apparent seepage from the percolation ponds into the drainage ditches was occurring more or less than 100 feet from the toe of the slope of the percolation ponds. If less, the seepage may be an indication that the hydraulic capacity of the site is not as great as predicted by computer flow models run in support of the application for a construction permit for the Oakley Grove site. Oakley Grove was designed to recharge the surficial aquifer without short-circuiting the designed 100 foot setback from the percolation ponds to the drainage ditches, even at the design disposal capacity of .600 MGD. (Cady Prefiled, 175). The evidence of seepage at .200 MGD is an indication that the hydraulic capacity of the site may not be as great as designed. Based on the assumed hydraulic capacity of the site, water balances prepared by the County assert that none of the water in the ditches would come from the percolation ponds at .200 MGD, or even at .300 MGD. The evidence of seepage at .200 MGD is another indication that the hydraulic capacity of the site may not be as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. The Oakley Grove relief drainage ditches were authorized by a SWFWMD Management and Storage of Surface Water ("MSSW") Permit (i.e., Permit #405124, issued 7/12/89). This permit established two surface water quality monitoring sites for the off-site discharge of water from the relief drainage ditches and requires that any water discharged off-site meet surface water quality standards. The County has collected data from these monitoring sites since 1991. This data does not indicate any violations of surface water quality standards due to the discharge of water from the relief drainage ditches to off- site receiving waters. (SWFWMD has never instituted an enforcement or compliance action against the County as a result of discharges from the relief drainage ditches to receiving waters, and Permit #405124 remains active.) However, the data indicate that the surface water quality has been worse, with respect to several parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for NOx-N, as high as .600 MGD.) This may be another indication that the hydraulic capacity of the site is not as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. MGD. No load testing was done at Oakley Grove at more than .250 to .270 Even at the historical loading rate, the evidence did not reflect that the County undertook to determine whether, under different weather conditions, reclaimed water was coming to the surface either in the drainage ditches or higher on berms on the pond side of ditch inverts. Nor was there evidence that systematic testing of the water quality in the ditches was conducted. In light of the evidence of seepage into ditches, either more or less than 100 feet from the toe of the slope of ponds, it was not proven that the site has the capacity to accept effluent at the design rate of .8 gpd/ft2 of pond bottom. It was, however, proven by evidence introduced as Department Exhibit 32 that .075 MGD is a hydraulic loading rate at which no discharge to the on- site ditch/swale features would occur under normal wet season groundwater conditions. Alleged Settlement Offer. Department Exhibit 32 is a January 27, 1992, letter from the County to the Department. It enclosed a letter to the County from the County's engineering consultant and an engineering report from a new hydrogeologic consultant to the County. The January 27, 1992, letter referenced a December 16, 1991, meeting "concerning acceptable rated disposal capacity" for the Oakley Grove Percolation Pond System and states that the enclosed hydrogeology report "verifies the rated capacity [for Oakley Grove] at 75,000 gpd." (The report stated that its purpose was "to estimate a hydraulic loading rate at which no discharge to the on-site ditch/swale features would occur under normal wet season groundwater conditions.") It concluded that a hydraulic loading of the Wesley Chapel WWTP can be justified by combining the 75,000 gpd disposal capacity for Oakley Grove with the 100,000 gpd already permitted for the Saddlebrook Village Percolation Pond System. Nowhere is Department Ex. 32 in fact identified as a settlement offer or as having any connection to a settlement offer in this or any other case. It is found that Dept. Ex. 32 was part of the process by which the parties successfully negotiated the settlement of the County's permit for construction of a modification to the Wesley Chapel WWTP, Permit Application No. DC51-205143. The Department issued a permit for construction of a modification to the Wesley Chapel WWTP (with a .075 MGD limit on disposal at Oakley Grove) on August 31, 1992. The County acceded to reduction of the actual disposal capacity at Oakley Grove pending the disposition of its application for an operation permit for Oakley Grove, and construction of the modifications was completed in late 1993. Ground Water Quality at Oakley Grove. During the time that Oakley Groves has been in operation, monitor wells have detected no violations of G-II ground water quality standards except for nitrates. Analysis of initial ground water samples collected from monitor wells at Oakley Grove Percolation Pond System in approximately January, 1991, detected no nitrate violations. The first quarterly reports after the County started loading the ponds began showing exceedances for nitrates. Exceedances continued to be reported in every quarter until the County stopped loading the ponds in November, 1993. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System demonstrates that nitrate concentrations have gone down over time. On average for the entire Oakley Grove Percolation Pond System, including upgradient background monitoring wells, nitrate concentrations have remained below the 10 mg/l Class G-II ground water quality standard for nitrate from approximately August, 1992, until the County stopped loading the ponds in November, 1993. The most recent quarterly sampling of the monitor wells at Oakley Grove Percolation Pond System occurred in 11/93. The report was submitted to the Department in 1/94. It showed no exceedances of the Class G-II ground water quality standard for nitrate in any of the monitor wells. However, it is not clear from the evidence whether the reports reflected the effects of reclaimed water being applied to the site. The reclaimed water applied to Oakley Grove Percolation Pond System probably is not the sole reason for the elevated nitrate concentrations that have been reported. Agricultural fertilizer was used at the site prior to acquisition by the County. Nitrates from the fertilizer have remained in the soil matrix. The loading of the ponds began to liberate the nitrates from the soil matrix and to flush the nitrates downgradient to the monitor wells. As the preexisting nitrates have been flushed out, nitrate levels have dropped. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System suggests that operation of the facility at historical loading rates (approximately .200 MGD) probably will not result in continued ground water quality violations. Systematic load testing would help answer the question more definitively. Surface Water Quality Considerations. The County did not intend for its percolation pond disposal systems either at Oakley Groves or at Moon Lake Road to result in a surface water discharge that would require a surface water discharge permit, and it has not applied for one at either site. Not having applied for a surface water discharge permit, the County has not submitted either a water quality-based effluent limitation (WQBEL) study or a plan to do a WQBEL study. In lieu of a WQBEL study, the County presented evidence of surface water quality consisting primarily of an evaluation of estimated predicted contributions, concentrations and characteristics of inputs entering the drainage ditches and a prediction of water quality characteristics at the point of discharge, given various application rates. Procedures commonly used and relied upon by water resource and sanitary engineers can be used to estimate the predicted quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates. The County utilized these procedures to predict, first, expected quality of water in the drainage ditches and, second, quality of water expected to be discharged off-site under various reclaimed water application rates. In applying the procedures, the County used lower removal efficiencies than those allowed in the EPA Design Manual and did not take into account additional pollutant removal efficiencies that will occur as the water in the ditches migrates off-site, resulting in higher predicted levels of contaminants in the water discharged off-site. The County also assumed the accuracy of the studies and models supporting the disposal capacities for the sites. Utilizing these procedures and assumptions, the County's evidence estimated the following predictions for Oakley Grove: --At an application rate of .300 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N (ammonia) = 0.129 mg/l; NOx- N (nitrite-nitrate)= 0.141 mg/l; organic nitrogen = 0.177 mg/l; total nitrogen = 0.477 mg/l; CBOD5 (carbonaceous biological oxygen demand)= 0.2 mg/l; total phosphorus = 0.04 mg/l; and fecal coliform = 21 per 100 ml. --At an application rate of .400 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.199 mg/l; NOx-N = 0.233 mg/l; organic nitrogen = 0.192 mg/l; total nitrogen = 0.672 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.056 mg/l; and fecal coliform = 20 per 100 ml. --At an application rate of .500 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.549 mg/l; NOx-N = 0.695 mg/l; organic nitrogen = 0.268 mg/l; total nitrogen = 1.65 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.25 mg/l; and fecal coliform = 15 per 100 ml. --At an application rate of .600 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.759 mg/l; NOx-N = 0.975 mg/l; organic nitrogen = 0.314 mg/l; total nitrogen = 2.23 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.36 mg/l; and fecal coliform = 12 per 100 ml. --At all reclaimed water application rates at the Oakley Grove site, it was estimated that TSS (total suspended solids) in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Utilizing the same procedures and assumptions, the County's evidence estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Moon Lake Road site at the design application rate of .185 MGD would be: NH3-N = 0.769 mg/l; NOx-N = 0.995 mg/l; organic nitrogen = 0.297 mg/l; total nitrogen = 2.25 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.37 mg/l; and fecal coliform = 3 per 100 ml. At the reclaimed water application rate proposed for Moon Lake Percolation Pond System, the County estimated that TSS in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Using those predictions of the water quality characteristics of off- site discharges from the relief drainage ditches, the County presented evidence that predicted generally and in a conclusory fashion that surface water discharges would not adversely impact the environment downstream. However, as already indicated, water quality monitoring for SWFWMD indicates water quality that has been worse at historical application rates, with respect to some parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for one parameter, as high as .600 MGD). County Ex. 162 summarized the surface water monitoring results at Oakley Grove for November, 1992, through November, 1993: East Outfall at I-75: NH3-N range less than 0.07-0.721 mg/l, and mean 0.157 mg/l; NOx-N range, less than 0.1-3.04 mg/l, and mean 0.416 mg/l; organic nitrogen range 0.250-1.10 mg/l, and mean 0.558 mg/l; total nitrogen range 0.510- 3.77 mg/l, and mean 1.31 mg/l; CBOD5 range less than 1-2.0, and mean 1.1 mg/l; total phosphorus range 0.020-0.190 mg/l, and mean 0.054 mg/l; T.S.S. range 1-16 mg/l, and mean 3.1 mg/l; and fecal coliform range 1-5300 per 100 ml, and mean 352 per 100 ml. South Outfall at Trailer Park: NH3-N range less than 0.07-0.270 mg/l, and mean 0.125 mg/l; NOx-N range, less than 0.1-0.810 mg/l, and mean 0.285 mg/l; organic nitrogen range 0.285-1.01 mg/l, and mean 0.631 mg/l; total nitrogen range 0.533-1.85 mg/l, and mean 1.04 mg/l; CBOD5 range less than 1-3.0, and mean 1.4 mg/l; total phosphorus range 0.010-0.120 mg/l, and mean 0.053 mg/l; T.S.S. range 1-16 mg/l, and mean 3.9 mg/l; and fecal coliform range 2-560 per 100 ml, and mean 50 per 100 ml. In addition, contrary to the County's predictions, estimates and arguments that surface water discharges from the Oakley Grove site will be "virtually indistinguishable from naturally occurring ground water," the surface water quality monitoring for SWFWMD at historical application rates indicates that water quality has been clearly distinguishable from naturally occurring ground water. The surface water discharges from the Oakley Grove site clearly have had higher levels of NOx-N and organic nitrogen than the water quality measured at the background monitoring station. In addition, pH levels have been significantly higher (approximately 7.35 versus 5.81). As previously found, the evidence suggests that seepage from the percolation ponds to the drainage ditches has occurred at the Oakley Grove site at application rates of approximately .200 MGD. That evidence belies the assumptions underlying the County's surface water quality predictions at Oakley Grove and suggests that the site may not have the hydraulic and disposal capacities on which the surface water quality predictions for Oakley Grove were based. Until the actual hydraulic capacity and disposal capacity of the Oakley Grove site are determined, it is not possible to accurately predict the quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates (except that there was evidence to prove that no seepage into the ditches would occur at application rates of up to .075 MGD.) In contrast to the Oakley Grove site, no load testing of the Moon Lake Road site is possible until it is constructed. The County presented evidence that nitrogen would be absorbed by plants and sediments downstream from the point of discharge. However, the evidence assumed that discharges would take place only in the wet season. Potential downstream impacts resulting from a dry season discharge would depend upon: (1) the amount of water coming off the site; (2) the amount of water in the receiving wetlands; (3) the duration of the discharge; and (4) the frequency of the discharge. The County's evidence did not examine the impact of discharges under those conditions. The County did not present evidence quantifying the amount of anticipated inorganic nitrogen discharge, the rate of uptake in sediments or plants, and the impacts downstream. The potential for imbalance of flora and fauna downstream, the biological integrity downstream, and degradation downstream likewise were addressed only in a general and conclusory fashion. No in-depth study of downstream biology was completed by the County. As for pH, there was evidence that the background wetland had a pH of 5.81 in standard units, while the ditch discharge has had a pH of 7.35 in standard units. Standard units of pH are logarithmic values. The numbers are actually powers of 10 and cannot simply be added together and divided by 2 to get an average pH. To get an average pH, you have to convert the pH from the logarithmic value to the actual concentration of the hydrogen ion, take the average, and then convert the average to a logarithmic value. Using this method, the average of a pH of 5.81 standard units and a pH of 7.35 standard units equals 6.1 standard units. Wetlands are very sensitive to the decreases in acidity reflected by higher pH values. The County's predicted surface water quality analyses did not address pH at all. The County's evidence did not include an examination of existing downstream conditions and projecting potential discharge impacts. The County did not model dissolved oxygen downstream of discharge points and did not survey the biological community of the receiving waters regarding any discharge to determine what impact, if any, a potential discharge would have on waters of the state. Surface water quality considerations were not assessed in relation to the volume and frequency of the discharge. In addition, the County did not sample and analyze water quality in downstream receiving waters. Other Considerations at Moon Lake Road In evaluating the County's Moon Lake Road application for completeness, the Department requested that the County conduct a fracture trace analysis and, if it indicated a higher likelihood of subsidence or sinkholes, a ground-penetrating radar (GPR) study. The County refused to do either, citing a desire to save County taxpayers money. Karst geology is typical in Pasco County. The County's site specific study of the Moon Lake Road site indicates the potential for karst activity by the presence of depressional features within and immediately adjacent to the site. It also indicates the presence of sinkholes on an immediately adjacent property. Starkey Wellfield is a regional public water supply wellfield located in Pasco County, which is part of the water supply network operated by West Coast Regional Water Supply Authority ("WCRWSA"). Starkey Wellfield currently operates under a consumptive use permit ("CUP") issued in 1988. The CUP authorizes the production of water from this facility at the annual average rate of 15 MGD and the maximum rate of 25 MGD. The nearest production well at the Starkey Wellfield is located slightly over half a mile from Moon Lake Road Sprayfield and slightly less than three-quarters of a mile from the Moon Lake Road Percolation Pond System. Water levels at the Moon Lake Road site probably will decline only about 0.7 foot due to the production of water from Starkey Wellfield. This decline is too small to significantly increase the potential for sinkhole formation or subsidence at the Moon Lake Road site. If the Moon Lake Road Percolation Pond System and Sprayfield can be operated in a safe and environmentally sound manner, it might be able to provide valuable recharge to the water table and the lower lying aquifer units. (This could reduce impacts caused by the wellfield.) But if there already is a sinkhole, or the high potential for one, at the Moon Lake site, use of the site for the disposal of reclaimed water could have a serious adverse effect on the Starkey Wellfield public water supply. Under these circumstances, it is found that the County has not yet given reasonable assurances that the Moon Lake Road site can be operated in a safe and environmentally sound manner. Evidence on Elements of Estoppel. The "Representations." Prior to the filing of the pending Oakley Grove operation permit application and Moon Lake Road construction permit projects, the Department had evaluated and permitted other similar County percolation pond systems (utilizing a system of drainage ditches to improve performance during wet weather conditions) in other locations. Saddlebrook Village Saddlebrook Village Percolation Pond System has a design disposal capacity of .15 MGD and a permitted capacity of .098 MGD. The initial construction permit application (#DC51-140007) for this facility was filed in 9/87. The Department issued Permit DC51-140007 on 12/21/87. Specific Conditions 7 and 8 of Permit DC51-140007 address the relief drainage ditch system. These conditions require sampling and analysis of any off-site discharge from these ditches for primary drinking water standards, flow, dissolved oxygen ("DO"), pH, biological oxygen demand ("CBOD5") and total suspended solids ("TSS"). The County accepted those conditions. Saddlebrook Village Percolation Pond System was constructed pursuant to Permit DC51- 140007. Thereafter, the County applied for a construction permit (#DC51-145550) in 2/88 to expand the system's disposal capacity to .250 MGD. The application sought to construct additional percolation pond basins and extend the ditch system to the new pond area. The Department approved the County's application for Permit DC51- 145550 on 7/26/88. The permit issuance was preceded by an Intent to Issue finding that the County had provided reasonable assurances that the modified facility could be constructed and operated in accordance with applicable rules and standards. Specific Conditions 6, 6A and 7 of Permit DC51-14550 address the drainage ditch system. These conditions limit flow out of the drainage ditches to the rainy season and then only when the perimeter ditch flow does not exceed the upstream flow of the receiving water. The conditions also establish maximum effluent limits of 5 mg/l for CBOD5 and TSS, 3 mg/l for total nitrogen, 1 mg/l for total phosphorus and non-detectable for fecal coliform. Finally, the conditions require sampling and analysis of any off-site discharge from these ditches for flow, primary and secondary drinking water standards, dissolved oxygen, total nitrogen, total phosphorus, fecal coliform, pH, CBOD5, and TSS. The County accepted those conditions. Saddlebrook Village Percolation Pond System has operated pursuant to Permit DC51-145550, as needed through the final hearing. The surface water quality information required pursuant to Specific Conditions 6, 6A and 7 of Permit DC51-14550 has been presented to the Department. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permits DC51-140007 and DC51-14550. Also, the Department has never instituted an enforcement or compliance action due to discharges from the relief drainage ditches to off-site receiving waters. Saddlebrook Village Percolation Pond System was never upgraded to the .250 MGD capacity authorized by Permit DC51-14450. The County never applied for an operation permit covering this facility because the evolution of its wastewater system and changes in land use patterns resulted in the development of other disposal sites. Shady Hills Shady Hills Percolation Pond System is another of the County's percolation pond sites. Its design disposal capacity is .650 MGD, and its permitted capacity is .400 MGD. The County's initial construction permit application (#DC51-160307) for Shady Hills Percolation Pond System was filed in 1/89 or 2/89. The Department approved the County's application for Permit DC51- 160307 on 6/7/89. Permit issuance was preceded by an Intent to Issue dated 5/18/89 finding the County provided reasonable assurances that the facility could be constructed and operated according to applicable rules and standards. Initially, Permit DC51-160307 did not contain special conditions addressing the presence of drainage ditches. However, it was amended on 7/24/89, and the amended permit was assigned identification number DC51-160307A. Specific Conditions 3 and 4 of Permit DC51-160307A address the drainage ditch system and require that the drainage ditch system must be maintained to preclude off-site discharge of pollutants and that any water discharged off-site must meet state water quality standards. Shady Hills Percolation Pond System was constructed pursuant to Permit DC51-160307A, and has operated from late 1990 to present. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permit DC51-160307A. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the relief drainage ditches to off-site receiving waters. The County never applied for an operation permit covering Shady Hills Percolation Pond System because the associated WWTP is being expanded and the County decided to wait until the expansion program is completed to obtain the operation permit. Lake Padgett Lake Padgett (a/k/a, Land O'Lakes) Percolation Pond System is another of the County's percolation pond sites. Its design and permitted disposal capacity is 1.0 MGD. The initial construction permit application (#DC51-159899) for the facility was filed in 1989. The Department granted the County's application for Permit DC51- 159899 on 5/16/89. The permit issuance was preceded by an Intent to Issue dated 4/27/89 finding that the County had provided reasonable assurances that the facility could be constructed and operated in accordance with applicable rules and standards. Specific Condition 15 of Permit DC51-159899 addresses the drainage ditches. It requires that any discharge of water from the ditch system to receiving waters must comply with Section 403.086, Florida Statutes (Grizzle- Figg standards). The Lake Padgett Percolation Pond System was constructed and operated pursuant to Permit DC51-159899. The County obtained an operation permit (#DO51- 205681) for the system on 3/26/92. Specific Condition 20 of the operation permit addresses the relief drainage ditch system, and requires that any discharge of water from the ditch system to the receiving waters comply with Section 403.086. The facility has operated pursuant to Permit DO51-205681 since 3/26/92 to present. Off-site discharges from the relief drainage ditches at the Lake Padgett Percolation Pond System have not resulted in violations of Permit DC51- 159899 or Permit DC205681. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the drainage ditches to off-site receiving waters. Construction of Oakley Grove The County conducted a site specific hydrogeologic and soil survey and effluent disposal study for the Oakley Grove site in late 1988. The County's initial construction permit application (#DC51-159755) for Oakley Grove Percolation Pond System was filed with the Department in 1/89. The Department granted the County's application for Permit DC51- 159755 on 6/22/89. The design and permitted disposal capacity for Oakley Grove is .600 MGD. The Oakley Grove permit issuance was preceded by an Intent to Issue dated 6/2/89 finding that the County had provided reasonable assurance that the facility could be constructed and operated in accordance with applicable rules and standards. Permit DC51-159755 does not contain any special conditions addressing the drainage ditches. One reason for this is that the surface water management permit issued by the Southwest Florida Water Management District ("SWFWMD") for this site contains conditions requiring the County to monitor any off-site discharges from the drainage ditches and prohibiting any violation of surface water quality standards. Consequently, there was no need for the Department to impose a similar permit condition. Oakley Grove Percolation Pond System was constructed under Permit DC51-159755. It was completed in 4/91 and has operated under that permit until approximately November, 1993. Oakley Grove Percolation Pond System's actual disposal rate during the period of operation has been about .200 MGD. The "Detrimental Reliance." The County paid $1,200,000 to acquire the Oakley Grove site. The County declined to purchase other potential sites that also would have cost about $1,200,000 in 1988, but would have cost about $1,800,000 in 1993. Total costs for property acquisition, engineering and construction at Oakley Grove have been approximately $2,800,000. In addition, the Shady Hills, Lake Padgett, and Handcart Road Percolation Pond Systems were constructed or modified at a cost of about $2,600,000 after issuance of the construction permit for the Oakley Grove project. To the extent that the County is unable to use the .600 MGD design disposal capacity at Oakley Grove, and cannot replace the deficit, the County will have insufficient disposal capacity. It would cost the County over $500,000 to modify the Oakley Grove site so that it could make some other practicable use of the property, and it would take about 18 months and about $2,800,000 to construct and place into operation a replacement disposal facility. During the time it would take to construct and place into operation a replacement disposal facility for Oakley Grove Percolation Pond System, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. The County began planning a percolation pond system for the Moon Lake Road site in 1988, and paid $600,000 to acquire the site. The County does not own any of the potential effluent disposal sites that it passed over when acquiring the Moon Lake Road site. It would have cost about $660,000 to acquire a similar site in 1993. If the County is not permitted to construct the Moon Lake Road site, it cannot make any practicable use of that site. It would take about 18 months and about $500,000 to construct and place into operation a replacement wastewater effluent disposal facility for the Moon Lake Road site. During that time, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. Alleged Default Permit for Moon Lake Road. Upon receipt of the application for Permit DC51-189086, the Department sent the County a letter dated 12/12/90 requesting additional information. The 12/12/90 request for additional information cited some specific rules although not for each item of additional information sought. The County's consulting engineer responded, on behalf of the County, to the request for additional information by letter to the Department's Permitting Engineer, dated 2/28/91. The County response stated that the County disagreed with the Department's "judgment" that the County's application was incomplete. But it also stated in pertinent part: However, recognizing that responsible professionals disagree and the extent to which you are responsible for rejecting this work, we have attached appropriate information and clarifying responses to aid you in discharging your professional duty. . . . Assuming we receive authorization from our client and that you accept full professional responsibility for the decision we will consider modifying our documents accordingly. In any event we feel comfortable requesting that you consider our permit application complete. On 3/26/91, the Department requested additional information. Again, the request cited some specific rules although not for each item of additional information sought. The County never responded. Meanwhile, the parties began to discuss settlement. Finally, on 2/13/92, the Department issued its notice of intent to deny the application. Subject Matter Index of Agency Orders. The Department has no subject matter index of any of its orders taking action on permit applications between 1975 and 1981. After 1981, the Department has had a subject matter index of its orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings. There never has been a subject matter index of Department orders taking action on permit applications rendered in cases where there has not been a request to initiate formal or informal administrative proceedings. It would be impracticable, if not impossible, for the County to research such orders without a subject matter index. There is no central repository or computer database for all Department permit decisions. Some of its permitting files are located in its main Tallahassee office but many also are located in its seven district offices. Regardless of whether there is a central repository or computer database for orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings, there is no evidence that, after 1981, there have been any such orders reflecting the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. It was not proven that the County was unable, by reason of permitting files being located in both the main Tallahassee office and the various district offices, to research the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. Research at the seven district offices would have been more costly than if all files were centrally located, but there is no reason in this case to believe that the additional cost would have been prohibitive. Alleged Biased Review. David Rhodes is an unlicensed environmental specialist employed by the Department's Southwest District Office. His responsibilities mainly consist of reviewing geotechnical and hydrogeologic information submitted in support of permit applications. He was the Department's primary reviewer for geotechnical and hydrogeologic information submitted in support of the County's applications for Permit DO51-194674 (Oakley Grove) and Permit DC51-189086 (Moon Lake Road), as well as Permit DC51-169994 (Handcart Road Percolation Pond System). He recommended denial of all three permit applications. On 2/18/91, David Rhodes contacted a County employee, Marshall Hughes, concerning the County's construction permit application for the Handcart Road Percolation Pond System and suggested "off-the-record" that the County discharge its geotechnical consultant, Richard Mortensen, and replace the proposed percolation pond system with a sprayfield. The County declined to terminate Mortensen. When Mortensen learned of David Rhodes's attempt to have the County fire him, Mortensen contacted David Rhodes's supervisor, Judith Richtar, on 3/4/91 to discuss this incident. Richtar told Mortensen that she was unaware of the matter, but would look into it and get back in touch with him. When Mortensen did not hear from Richtar for two weeks, he called her. She told him that David Rhodes had denied everything. Mortensen later learned that David Rhodes made comments and insinuations to two of his other clients disparaging his work performance and suggesting that his engineering firm was not competent. Mortensen was not satisfied with Richtar's handling of his complaint. On 4/25/94, he contacted Richtar's superior, Dr. Richard Garrity. Garrity asked for a letter detailing the incident. Mortensen wrote Garrity a letter dated 5/29/91 describing David Rhodes's communication with Hughes and requesting that Richtar be disciplined for her handling of this situation. David Rhodes was suspended by the Department without pay; however, Richtar was not disciplined. David Rhodes also wrote Mortensen a letter of apology for his communication with Marshall Hughes. The letter states his comments to Hughes should not be interpreted as a personal vendetta against Mortensen's engineering firm and that he hoped the incident could be put behind them so they could continue working on future projects. Rhodes admitted that he felt embarrassed after Garrity suspended him without pay and suggested that he write a letter of apology to Mortensen. About 3 months after David Rhodes's letter of apology, another Department employee, Joe May, filed 5 complaints with DBPR against Mortensen's P.E. license. The complaints identified the Handcart Road, Moon Lake Road, Oakley Grove, Lake Padgett and Westchase projects. (All of these are County projects, except for Westchase.) The complaints identified Richtar as a "contact person." Richtar knew about May's complaints before they were filed with DBPR and acquiesced to being identified in them as a contact person. Like David Rhodes, May is an unlicensed environmental specialist employed in the technical support section of the Department's Southwest District Office in Tampa. His responsibilities include reviewing geotechnical and hydrogeologic information submitted in support of permit applications. However, he had no permit review involvement with respect to the Oakley Grove, Moon Lake Road, Handcart Road and Lake Padgett projects. Instead, the hydrogeological aspects of those projects were assigned to May's colleague, David Rhodes. Mortensen's attorney responded to May's 5 complaints in January, 1992. Copies of Mortensen's technical reports were attached to the response, including the site specific studies he had prepared for the Oakley Grove and Moon Lake Road sites. DBPR referred May's complaints and Mortensen's technical reports to an independent engineering firm, Geotechnical and Environmental Consultants, Inc. for review. This firm prepared a report on January 21, 1993. The report exonerated Mortensen and found that May's complaints were without merit. DBPR took May's 5 complaints before a probable cause panel of the Board of Professional Engineers. The panel found there was no probable cause to pursue them. Mortensen was informed of this finding by DBPR's 8/31/93 letter. The Department has allowed David Rhodes to remain on the permit review team on the County's permit applications for the Oakley Grove and Moon Lake Road Percolation Pond Systems despite the fact Mortensen is the geotechnical consultant on these projects. It is not found that the continued presence of Rhodes and Richtar on the permit review team for the County's permit applications demonstrates the Department's prejudice against the County and its consultants. It is not found that the Department's decisions to deny the County's permit applications in this case were interposed for an improper purpose or that the denials were based on the permit reviewers' personal animosity against the County and its consultants, rather than on the merits of the facilities. However, relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order as follows: In Case No. 92-1604: Denying the County's amended application for a permit (application no. DC51-189086) to construct a sprayfield reuse disposal system at .215 MGD and a rapid rate infiltration basin reuse (percolation pond) disposal system at .185 MGD at Moon Lake Road, subject to reconsideration after completion and review of a fracture trace analysis, a ground penetrating radar analysis (if needed), and an appropriate WQBEL study. If the application subsequently is granted, including among the specific conditions (1) a requirement for systematic load testing and monitoring of ground and surface water quality under the construction permit, as a condition for issuance of an operation permit, and (2), if appropriate, requiring monitoring, reporting and safely repairing subsidences, collapse features and sinkholes in and around discharge points. See, e.g., Specific Condition 12, Hudson WWTP Permit DC51-130307 (County Ex. 170). Case No. 92-1653: Denying the County's amended application for a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.600 MGD, subject to reconsideration after completion and review of: (1) additional systematic load testing, (2) systematic monitoring of ground and surface water quality, and (3) an appropriate WQBEL study. Granting the County a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.075 MGD, thereby supporting the operation of its Wesley Chapel Wastewater Treatment Plant to the extent of .075 MGD pending load testing, systematic monitoring and load testing and reconsideration of the application for an operation permit for more capacity, up to .600 MGD. Denying the County's amended application for a permit (application no. DO51-194674) to operate its Wesley Chapel Wastewater Treatment Plant at .600 MGD and limiting its capacity to the available permitted disposal capacity. Case No. 92-1654: Denying, as moot, the County's application for a permit (application no. DO51-199516) to reactivate the operation of its Ryals Road rapid rate infiltration basin reuse (percolation pond) disposal system at .1075 MGD. RECOMMENDED this 31st day of October, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted but subordinate and unnecessary. Accepted and incorporated. Speculative and unnecessary. 6.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted but subordinate and unnecessary. 14.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-34. Accepted but subordinate and unnecessary. 35.-43. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 44. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 45.-53. Accepted and incorporated to the extent not subordinate or unnecessary. 54. Accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation should have been done. 55.-58. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 59. Rejected as not proven. 60.-61. Accepted but subordinate and unnecessary. 62. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation of soil permeability should have been done. 63.-76. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. ("Southwest" in 76. should be "Southeast.") 77.-79. Accepted but subordinate and unnecessary. 80.-92. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 95.-113. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusions of law. First sentence, accepted but subordinate and unnecessary; second sentence, conclusion of law. Conclusions of law. 117.-122. Accepted but generally subordinate and unnecessary. (There is no indication in this case that the Wesley Chapel WWTP cannot operate as designed, as permitted for construction, and as constructed, subject to available disposal capacity.) 123.-148. Accepted but subordinate and unnecessary. As to (c) and (d), rejected as not proven (Oakley Grove, without WQBEL studies, and Ryals Road without further investigation into significance of down-warping.) Otherwise, accepted: as to Ryals Road, moot, subordinate and unnecessary; as to Oakley Grove, incorporated to the extent not subordinate or unnecessary. As to (c) and (d), rejected as not proven without WQBEL studies and fracture trace analysis and, if then indicated, GPR. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. 154.-155. Accepted but subordinate and unnecessary. 156.-158. Accepted and incorporated to the extent not subordinate or unnecessary. 159. Rejected as not proven that the use of the label "perimeter ditches" is "not accurate" or that the County used the term only because the Department did. Rather, both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Otherwise, accepted and incorporated. 160.-161. Accepted and incorporated to the extent not subordinate or unnecessary. 162. Accepted in the sense that the collection of reclaimed water in the ditches was not the primary goal of the drainage system. However, it was recognized that the collection of some reclaimed water in the ditches, especially under some weather conditions, was a necessary result of the use of the drainage features to improve the performance of the percolation ponds. 163.-166. Accepted and incorporated. 167.-169. Rejected as not proven that the Department has "changed position" without promulgating any rule. The County's own permitting experience has shown that the Department has had concerns about the performance of percolation pond systems with perimeter drainage features. Those concerns have evolved over time. Before April, 1989, those concerns were given expression in special conditions in permits. In April, 1989, F.A.C. Rules 17-610.517(2) and 17-610.522 were promulgated. The evidence does not prove that, before 9/15/89, the Department would not ever consider water in drainage ditches 100 feet from percolation ponds to be "reclaimed water." Accepted but subordinate and unnecessary. Rejected as not proven that approval or denial would be "automatic." The question was whether WQBELs or Grizzle-Figg standards would be applied. Rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. 173.-174. Accepted but unnecessary. (Current practice simply reflects the application of the current rules.) Rejected as not proven that the Department position had "completely changed," that the Department was "inalterably opposed to the ditches," or that the Department had before it the "reasonable assurances" provided at the other sites. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Again, rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven; also, subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Rejected as not proven that the Department stipulated that F.A.C. Rule 17-610.517(2) does not apply. Also, conclusion of law. Accepted but subordinate and unnecessary. 186.-187. The implication that the Department does anything other than follow F.A.C. Rule 17-610.521 is rejected as not proven and as conclusion of law. 188.-190. Rejected as not proven that reclaimed water infiltrating ditches at Oakley Grove and Moon Lake Road has been or will be "virtually indistinguishable" from other ground water. Otherwise, generally, accepted, and 100 feet should be enough in most circumstances. But the facts of individual cases must be considered to determine whether treatment afforded by 100 feet makes reclaimed water "virtually indistinguishable" from other ground water so as to no longer be considered reclaimed water. Also, the concentration of discharges via a ditch system is another factor to be considered. 191.-192. Accepted and incorporated. 193.-194. Rejected as not proven that they could be modified "easily" or without decreasing the permittable disposal capacity. Accepted (assuming they are built as designed) and incorporated. Last word should be "dry"; otherwise, accepted and incorporated. Accepted and incorporated. 198.-201. Rejected in part as being subordinate to facts not proven and contrary to those found. (Cady's testimony explained some of the wet ditch bottoms, but not all of them, and not the wet slopes of the berms.) Other parts, accepted and subordinate to facts found. 202.-206. Generally accepted and incorporated to the extent not subordinate or unnecessary. (However, the approach makes certain assumptions, and the estimates or predictions will not be accurate if the assumptions are not. In the case of Oakley Grove, the assumptions concerning hydraulic capacity do not appear to have been accurate.) 207.-211. Rejected as not proven. See 202.-206., above. 212. Accepted and incorporated. 213.-219. Accepted and incorporated to the extent not subordinate or unnecessary. But see 202.-206., above. 220.-226. Rejected as not proven as to Oakley Grove. See 202.-206., above. Accepted as to Moon Lake Road. Accepted as predictions based on the given assumptions, particularly as to hydraulic capacity of the site. 227.-230. Recitation of the experts' opinions, accepted as accurate recitations. Rejected that plant-life utilization of inorganic nitrogen allays Fricano's concerns. To the exact contrary, his concern is that plant-life will utilize the inorganic nitrogen in ways organic nitrogen would not be used, leading to undesirable environmental impacts. Also, rejected as not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters. 231.-232. Accepted and incorporated. 233.-234. Rejected as not proven. (The County expert's opinion assumed only wet weather discharges. Also, not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters.) 235.-239. Accepted and incorporated to the extent not subordinate or unnecessary. 240.-243. Accepted but subordinate and unnecessary. 244. Accepted and incorporated to the extent not subordinate or unnecessary. 245.-248. Accepted but subordinate and unnecessary. 249. Rejected as not proven that this can be done "easily." See 193.- 194., above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 250.-251. Rejected as not proven. 252.-253. For both: last two sentences, rejected as not proven; the rest, accepted but subordinate and unnecessary. (F.A.C. Rule Chapter 17-600 forms did not apply.) Second and fourth sentences, rejected as not proven. The rest is accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. 257.-258. Accepted but subordinate and unnecessary. 259. Rejected as to the location of some ditches within 100 feet of the percolation ponds. Otherwise, accepted but subordinate and unnecessary. 260.-261. Accepted but subordinate and unnecessary. 262. Rejected as not proven. 263.-269. Accepted but subordinate and unnecessary. 270. Rejected as not proven. 271.-279. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted and incorporated to the extent not subordinate or unnecessary. (The "change in policy" is reflected in F.A.C. Rules 17-610.517(2) and 17-610.522.) Accepted and incorporated. As to (b) and (c), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. As to (c), rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 287.-289. Rejected as not proven and as conclusion of law. 290. Accepted and incorporated. 291.-293. Accepted and incorporated to the extent not subordinate or unnecessary. 294.-295. Conclusions of law. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. Accepted but subordinate and unnecessary. 299.-301. Accepted and incorporated. 302. Accepted but subordinate and unnecessary. 303.-308. Rejected as not proven without WQBEL studies. Rejected as not proven. Rejected as not proven. (The SWIM plans were not in evidence, and it is not clear whether they incorporate by reference the permitting requirements at issue in these proceedings.) 311.-312. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven without WQBEL studies. 316.-317. As to (g) and (h), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 318.-323. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 324. Conclusion of law. 325.-326. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) First sentence, rejected as not proven; rest, accepted but subordinate and unnecessary. 330.-331. Subordinate and unnecessary. See 353. 332. Rejected as not proven. 333.-334. Subordinate and unnecessary. See 353. 335. Last sentence of 335., rejected as not proven; otherwise, accepted. 336.-350. Subordinate and unnecessary. See 353. 351. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 352.-353. Subordinate and unnecessary. See 353. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Conclusion of law. Accepted and incorporated. Accepted but subordinate and unnecessary. 361.-362. Rejected that it was an offer to settle this case. Otherwise, accepted but subordinate and unnecessary. 363.-367. Accepted but subordinate and unnecessary. 368.-371. Accepted and incorporated. 372.-401. Accepted but subordinate and unnecessary. 402. Rejected as not proven. (They result from a combination of the nitrates in the reclaimed water and nitrates imbedded in the soil matrix from prior agricultural use. Also, unlike the Oakley Grove site, nitrate exceedances were observed at Wildcat Grove before application of any reclaimed water.) 403.-405. Accepted and incorporated to the extent not subordinate or unnecessary. 406. Rejected as not proven that reclaimed water was being applied at the time. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 407. Rejected as not proven when nitrate exceedances will end. Otherwise, accepted and incorporated. 408. Rejected as not proven. See 406., above. 409. Rejected as not proven. See 407., above. 410.-416. Accepted but subordinate and unnecessary. 417. Accepted but subordinate and unnecessary. 418.-421. Rejected as not proven. 422. Accepted but unnecessary. 423. Rejected as not proven that their concerns are "unfounded" unless the source of reclaimed water is restricted to Deer Park WWTP. Otherwise, accepted but unnecessary. 424. Assuming performance in accordance with the application, accepted but unnecessary. 425.-430. Accepted and incorporated to the extent not subordinate or unnecessary. 431. First sentence, accepted and incorporated to the extent not subordinate and unnecessary; second sentence, rejected as not proven. 432.-445. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) First sentence, rejected as not proven; second sentence, conclusion of law. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 457.-465. Accepted and incorporated to the extent not subordinate or unnecessary. 466.-470. Rejected as not proven without WQBEL studies. 471. Last sentence, accepted and incorporated; rest, rejected as not proven without WQBEL studies. 472. Rejected as not proven. See 310., above. 473.-475. Accepted but subordinate and unnecessary. 476. Rejected as not proven. 477.-478. Accepted but subordinate and unnecessary. Rejected as not proven (that the discharges are.) As to (d), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven without WQBEL studies. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. 484.-485. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) Ultimate and penultimate sentences, rejected as not proven. The rest is accepted (although the fourth sentence is not complete) and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. First sentence, accepted and incorporated; rest, rejected as not proven. 491.-493. Accepted and incorporated to the extent not subordinate or unnecessary. 494. Accepted and incorporated to the extent not subordinate or unnecessary. 495. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, rejected as not proven. 496.-499. Accepted and incorporated to the extent not subordinate or unnecessary. 500. Last sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary. 501. Accepted but largely subordinate and unnecessary. (Also, Saddlebrook was permitted under different rules; now, the special conditions can only be established after WQBEL studies.) 502.-504. Accepted and incorporated to the extent not subordinate or unnecessary. (However, it is understood that the constant head cell approach proved acceptable for purposes of estimating hydraulic capacity of the site but that it still did not accurately portray what would happen in the ditches and adjacent wetlands.) 505.-509. Accepted and incorporated to the extent not subordinate or unnecessary. 510. Rejected as not proven that the criticism was immaterial. See 502.- 504., above. 511. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 512.-524. Accepted and incorporated to the extent not subordinate or unnecessary. 525. Rejected as not proven that it would without fracture trace analysis and, if then indicated, the GPR. (Accepted that it might.) 526. Rejected as not proven that he was directed to "speak in favor of the County's permit application." 527. Accepted and incorporated to the extent not subordinate or unnecessary. 528. Except that 500 feet is a minimum setback distance, accepted and incorporated to the extent not subordinate or unnecessary. 529.-530. Accepted and incorporated to the extent not subordinate or unnecessary. 531. Rejected as not proven without fracture trace analysis and, if then indicated, the GPR. See 525., above. 532.-534. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 535. Accepted but subordinate and unnecessary. 536.-537. Rejected as not proven without WQBEL study. 538.-543. Accepted and incorporated to the extent not subordinate or unnecessary. 544. Rejected as not proven. (Rather, the County stated that it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a) and that it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit).) 545.-546. Rejected as not proven. Also, moot, subordinate and unnecessary. 547.-552. Accepted and incorporated to the extent not subordinate or unnecessary. 553.-557. Accepted but moot and unnecessary. Rejected as not proven. Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. 563.-566. Accepted but moot, subordinate and unnecessary. 567. Subordinate to facts not proven. 568. First sentence, rejected as not proven. Also, rejected as not proven that the Ryals Road sinkhole was "small." Otherwise, accepted. All moot and unnecessary. 569. Rejected as subordinate to facts not proven. 570. Last sentence, rejected as not proven. Otherwise, accepted. All moot, subordinate and unnecessary. 571.-573. Accepted but moot, subordinate and unnecessary. Last sentence and word "stable," rejected as not proven. (He stated that the clay was "competent" and that the GPR could detect sinkholes down to 20 feet, but he did not comment specifically on the significance of the down- warping across the site and in the southeast corner.) Otherwise, accepted. All moot, subordinate and unnecessary. Accepted but moot, subordinate and unnecessary. Rejected as not proven that it is "unknown." The evidence is not clear, but Richtar thought the sinkholes at Oaks Royal opened after construction. Otherwise, accepted but moot, subordinate and unnecessary. Accepted. Subordinate, in part to facts not proven and in part to facts supported by the greater weight of the evidence. Moot, subordinate and unnecessary. Except for characterization of sinkhole as being "small," accepted but moot, subordinate and unnecessary. Last sentence, rejected as not proven. (It is not a substitute for further investigation into the cause of the down-warping across the site and in the southeast corner.) Otherwise, accepted but moot, subordinate and unnecessary. Rejected as not proven. 581.-582. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected as not proven and conclusion of law. 583. Second sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 584. First and last sentences, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. 585. Accepted and incorporated to the extent not subordinate or unnecessary. 586. Accepted (assuming no new capacity) and incorporated to the extent not subordinate or unnecessary. 587.-588. Rejected as not proven. (It assumes no new capacity.) 589.-590. Accepted and incorporated to the extent not subordinate or unnecessary. 591. Rejected as not proven. 592.-593. Accepted and incorporated to the extent not subordinate or unnecessary. 594. Rejected as not proven. 595. Accepted but moot, subordinate and unnecessary. 596. Third sentence, not proven. Rest, accepted but moot, subordinate and unnecessary. 597.-599. Accepted but moot, subordinate and unnecessary. 600. Accepted (assuming no new capacity) but moot, subordinate and unnecessary. 601. Rejected as not proven. Also, moot, subordinate and unnecessary. 602. Accepted and incorporated to the extent not subordinate or unnecessary. 603.-604. Rejected as not proven. Rejected as not proven that he is "one of the most vocal opponents." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes contacted Hughes or that it was Rhodes's primary purpose to suggest Mortensen's discharge. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes suggested Mortensen was incompetent. (Mortensen alleges he made "comments and insinuations" that "basically suggested that MEI was incompetent.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 610.-620. Accepted and incorporated to the extent not subordinate or unnecessary. 621. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 622. Rejected as not proven that Rhodes and Richtar were attempting to have the County "fire" Mortensen. Also, rejected as not proven that the "Department" will not be "truly impartial." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation. 623. Rejected as not proven. Also, subordinate and unnecessary. (The issue is whether they should be granted, not whether the reviewers should have recommended that they be granted.) Respondent's Proposed Findings of Fact. The Department's proposed findings of fact are numbered separately by facility: Oakley Grove Accepted and incorporated. "Rimmed" rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated. 3.-8. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (No "wastewater" would discharge from the ditch system.) Rejected as contrary to the greater weight of the evidence and facts found that this was "revealed" by staff inspections. (Under certain conditions, and at certain application rates, it was expected.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Subordinate to facts found. Rejected as contrary to the greater weight of the evidence and facts found. At the time of some if not all of the Department inspections, water was being diverted from some of the main stormwater collection ditches. 13.-18. Generally accepted and incorporated to the extent not subordinate or unnecessary. 19. "Wastewater effluent ponds" is inaccurate description. Otherwise, accepted and incorporated. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25. Rejected as contrary to the greater weight of the evidence and facts found, and as conclusion of law, that it is "typical." (The proposed finding seems to be describing a Level II WQBEL study.) 26.-29. Accepted and incorporated to the extent not conclusion of law. (29. again seems to refer to a Level II WQBEL study.) 30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-36. Accepted. Largely subordinate to facts found. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusion of law. Accepted and incorporated. 40.-42. Conclusion of law. Accepted and incorporated. If "different nitrogen" means other than inorganic, accepted but subordinate and unnecessary. Rejected as unclear what "distinguishes the type and amount of nitrogen" and what "numerous conditions" means. Accepted and incorporated to the extent not subordinate or unnecessary. 47.-49. Accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not conclusion of law. 52.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Accepted and incorporated to the extent not conclusion of law. 57.-58. Accepted and incorporated to the extent not conclusion of law. Rejected as conclusion of law and as not proven what is "typical." Accepted and subordinate to facts found. 61.-62. Accepted and incorporated to the extent not conclusion of law. 63.-82. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 83.-102. Accepted and incorporated to the extent not subordinate or unnecessary. 103. Rejected as not clear from the evidence whether reclaimed water was being applied on those dates. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 104.-106. Accepted and incorporated to the extent not subordinate or unnecessary. 107.-110. Accepted but subordinate and unnecessary. (These violations were temporary aberrations in otherwise proper operation of the facility. They were corrected and do not bear significantly on the question whether the County has given reasonable assurances.) Last sentence, rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (The manual was maintained at a different location.) Moon Lake Road 1.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. One was proposed in evidence presented at the hearing but not in the application. 15.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25.-26. Conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. "Any" is rejected as contrary to the greater weight of the evidence. Accepted and incorporated. 30.-32. Accepted. Subordinate to facts found. Accepted and incorporated to the extent not conclusion of law. First sentence, unclear; second sentence, accepted but subordinate and unnecessary. Accepted. Subordinate to facts found. 36.-38. Accepted and incorporated to the extent not conclusion of law. "Effluent" rejected to the extent that it infers something other than "reclaimed water." Rejected as to Deer Park WWTP; accepted as to the others. Accepted and incorporated. 41.-43. Accepted and incorporated to the extent not subordinate or unnecessary. 44.-49. Accepted and incorporated to the extent not subordinate or unnecessary. 50.-52. Rejected as contrary to the greater weight of the evidence and facts found that the rainfall/evapotranspiration differences are great enough to have a significant impact on site capacity. The Tampa Airport data was the best to use at the time of the application. Other, closer data became available later and were considered as part of the County's rebuttal case. 53. Rejected as contrary to the greater weight of the evidence and facts found that the design of the model (constant head cells, boundaries, and single- layer) has a impact on site's hydraulic capacity. (It is understood that the significance of the design of the model is that it does not show flow into the ditches and adjacent wetlands or the relationship between surficial and Floridan aquifers.) 54.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Rejected as contrary to the greater weight of the evidence and facts found. 57.-58. Accepted and incorporated to the extent not subordinate or unnecessary. See 53., above. Rejected as contrary to the greater weight of the evidence and facts found. Accepted but subordinate and unnecessary. 61.-63. Rejected as contrary to the greater weight of the evidence and facts found. 64.-65. Accepted but subordinate and unnecessary. 66. Rejected as contrary to the greater weight of the evidence and facts found. See 50.-52., above. Limiting storage needs to the .215 MGD design sprayfield capacity only, there is no real question as to the needed storage capacity. Neither differences in the rainfall/evapotranspiration data nor differences in the source of the reclaimed water would make storage capacity deficient. Ryals Road 1.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that it was "effectively withdrawn." Otherwise, accepted and incorporated. Rejected as not supported by the evidence that a $400 fee was paid on July 12, 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 13.-14. Accepted and incorporated to the extent not subordinate or unnecessary. 15.-26. Accepted but moot, subordinate and unnecessary. 27. Rejected as contrary to the greater weight of the evidence. Also, moot, subordinate and unnecessary. 28.-33. Accepted but moot, subordinate and unnecessary. 34. Rejected as not supported by the evidence that the residential density is "high". Otherwise, accepted but moot, subordinate and unnecessary. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire de la Parte, Gilbert & Bales, P.A. P.O. Box 2350 Tampa, Florida 33601-2350 Douglas H. MacLaughlin, Esquire Francine M. Ffolkes, Esquire Keith C. Hetrick, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Laven owns a parcel of land at 1500 Bay View Drive, Sarasota, Florida on which he has a home. The property is approximately 180 feet by 100 feet, and is located on Sarasota Bay. A seawall has been constructed along the shoreline. Respondent Cloud owns a parcel of land at 2610 Cardinal Lane, Sarasota, Florida that is contiguous to Respondent Laven's property at 1500 Bay View Drive, Sarasota, Florida that is also located on Sarasota Bay. Approximately 100 feet of the property is located along the shoreline of Sarasota Bay. Sarasota Bay is currently designated as a Class III outstanding Florida waterbody. On or about June 28, 1991 Respondents Laven/Cloud filed an application to modify existing permit number 581885033 which had been previously issued to Respondent Laven for construction of a private dock consisting of an access pier 210 feet by 5 feet, with a terminal platform 20 feet by 4 feet on Laven's property located at 1500 Bay View Drive, Sarasota, Florida. Previous to the modified application being filed by Laven and Cloud, Laven had attempted to modify permit no. 581885033 by reducing the access pier from 210 feet by 5 feet to 175 feet by 5 feet. The Department concluded that the dock, as modified, would not reach water of sufficient depth to prevent damage to the seagrass, and considered this a major modification requiring a new application. Therefore, the Department denied the modified application, and Respondent Laven did not file a new application. The application filed by Laven/Cloud on or about June 28, 1991 to modify existing permit 581885033 proposed to construct a private dock on the property line between Laven's and Cloud's property. The private dock was proposed to consist of an access pier 4 feet by 210 feet, with two terminal platforms, each 25 feet by 6 feet. After review of the application to modify permit 58188503 the Department issued a Notice of Intent to issue a permit for the proposed construction of the private dock on August 2, 1991. The Notice of Intent included 18 specific conditions to which the proposed dock would be subject. Those relevant to this proceeding are as follows: 1) . . . . If historical or archaeological artifacts, such as Indian canoes, are discovered at any time within the project site the permittee shall immediately notify the district office and the Bureau of Historic Preservation, Division of Archives, History and Records Management, R.A. Gray Building, Tallahassee, Florida 32301. Turbidity screens shall be utilized, secured, and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Double turbidity screens, staked hay bales, staged construction and other additional measures shall be used as necessary to insure compliance with water quality standards in Chapter 17-3, Florida Administrative Code. During construction, all areas of exposed soils shall be effectively isolated from waters of the state to prevent erosion or deposition. All exposed soils shall be stabilized with an appropriate ground cover within 72 hours of attaining final grade. 5) . . . . 6) . . . . The applicant is not permitted to conduct or construct the following activities or facilities in conjunction with this dock structure: Fish cleaning facilities. Fuel hoses or fueling facilities. The mooring of boats or vessels for live aboards. The mooring of boats utilized for com- mercial purposes such as fishing, scuba diving, boat rental, etc. Picnic tables or benches. Storage sheds or enclosed structures. Covered boat slips. Sanitary facilities. The rental of boat slips or mooring space. Turbidity screens shall effectively encom- pass each piling during installation and remain in place until any generated turbidity has subsided. Turbidity screens shall effectively encompass an area around each piling not to exceed 7 square feet. Any watercraft which may be utilized during construction activities shall only operate/moor in waters of sufficient depth so as not to cause bottom scour or prop dredging. The access pier shall be elevated a minimum of 5 feet above mean high water for the most waterward 150 linear feet of the access pier. The most waterward 150 linear feet of the access pier shall be constructed with the slated[sic] design indicated on sheet 4 of permit submittals. The most landward 60 feet of the access pier shall be constructed utilizing the 2 x 6 decking. The permittees shall construct 100 linear feet of rip rap along the existing vertical seawall as indicated on sheet 1 of permit submittals. Rip rap material shall consist of natural boulders or clean concrete rubble six inches to three feet in diameter or in average dimensions. The slope of the rip rap shall be no steeper than 2H:1V. There shall be no reinforcing rods or other similar protrusions in concrete rubble and all rubble or boulders shall be free of attached sediments. The rip rap shall be install concurrently with the construction of the permitted dock. The permittees shall grant the Department a conservation easement over the shorelines of the two subject parcels. A conservation easement shall be established over the seawall cap and 2 feet waterward of the seawall for the entire length of the seawall to 1500 Bay View Drive (Lots 1, 2, 3, 4, 11, 12, 13, and 14 Block Q, Bay View Heights Addition). A conservation easement shall also be established between the limits of the mean high water linear and the landward extent of waters of the State (Pursuant to Section 170301.400[sic] FAC) for the entire length of the shoreline at 2610 Cardinal Place (Lots 5, 6, 7, 8, 15, 16, 17 and 18, Block Q, Bay View Heights Addition). 14) . . . . 15) . . . . The following seagrass monitoring program shall be implemented and adhered to: Within 45 days of the issuance of this permit (and prior to initiation of dock con- struction) the permittee shall establish a preconstruction monitoring program consisting of one meter square grids within the area specified on sheet 1 A of permit attachments. A minimum of 10 random one meter square plots shall be selected within each area A and B and also along the centerline established along the length of the dock. The permittee shall measure percent areal coverage of seagrasses within each plot within the grid system. Each of the plots shall be monitored as specified in above a minimum of two times per year (July and January) over a three year monitoring period subsequent to dock construction. Reports shall include date, water depth, water clarity, species of seagrasses observed, percent areal coverage and representative height of seagrasses within each plot. Moni- toring reports shall be submitted to the Department within 30 days of the monitoring event. The first monitoring event shall occur during the first January or July (which ever occurs first) subsequent to completion of dock construction. Hand railing shall be constructed along the entire length of the access pier (on both sides). The temporary or permanent mooring of watercraft shall only occur at the terminal platform. 18) . . . . By imposing special conditions 3, 4, 8 and 9 it will ensure that the dock construction will have a temporary minimal impact on the water quality, and there will be no permanent water quality impacts as a result of this project. If this permit is not issued, it would be possible for each of the applicants to build an exempt dock on his property which would require two accesses or swaths through the seagrass beds. An exempt dock (500 square feet or less) may result in the dock terminating in seagrass beds and in water of insufficient depth to prevent damage to the seagrass beds or to prevent bottom scour or propeller dredging. The project site consists of a shoreline with a shoal area where Shoal grass (Halodule wrightii) and Turtle grass (Thalassia sp.) are growing, with the Turtle grass being the predominant species to a point further waterward to where there is a significant change in the water depth. Such point being approximately at the termination of the proposed dock. Beyond this point the seagrass beds are scattered. Therefore, any dock shorter than approximately 210 feet would terminate in the main seagrass beds and result in the seagrass beds being routinely disrupted or damaged by power boats. The proposed design of the most waterward 150 linear feet of the deck portion of the proposed dock has less solid surface than a normal deck, and, along with the proposed height of the most waterward 150 linear feet of the proposed dock, would allow substantially more light to penetrate the area and provide sufficient light for healthy existence of the seagrasses. The proposed impacts consists of disturbance of the seagrass beds. Requiring railing along the entire access pier on both sides will preclude mooring of motor craft in the area of the seagrass and in water depths insufficient to prevent damage to the seagrass, and to prevent bottom souring and propeller dredging. Because of the length, height and design of the dock there would be minimal impact, if any, on the seagrass beds. The design of the dock will ensure that the project will not adversely affect the functions being performed in the area intended for the dock. The conservation easement will ensure that a feeding ground for wading birds will be maintained, and along with the dock design will minimize any impacts that the proposed dock will have on the fish and wild life habitats. The construction of the 100 linear feet of rip rap along the existing vertical seawall on Sarasota Bay along Laven's property will reduce scouring and erosion at the base of the seawall, and provide beneficial habitat which will be an improvement of the seawall alone. There may be minimal impacts on recreation in that it may impose some inconvenience for those fishing and those attempting to access the bay for sailing. There may be some minimal impact on navigation in that the proposed dock will entend out approximately 35 feet further than any other existing dock in the area but due to the shallow water in this area boats presently have to travel at a reduced rate of speed, and for this reason the proposed dock would not adversely affect navigation. However, this should be mitigated by requiring lights on the dock as a safety feature. The project will not adversely affect the fishing, or recreational values, or marine productivity in the vicinity of the project. The proposed project will not adversely affect the public health, safety, or welfare or property of others. The proposed dock will be a permanent structure, notwithstanding that regular mainentaince will be required. The Respondents Laven/Cloud have provided reasonable assurances that the proposed project will be clearly in the public interest, notwithstanding the minimal impact it may have on recreation and navigation. Particularly, when all Special Conditions are considered, specifically Special Conditions 12 and 13 pertaining to rip rap along the vertical seawall on Laven's propertry and the granting of the Conservation Easement over both Laven's and Cloud's shoreline.
Recommendation Accordingly, in view of the above Findings of Fact and Conclusions of Law, it is, therefore, recommended that the Department enter a Final Order issuing Permit Number 581885033 to Respondents Robert Laven and John Cloud as set forth in the Department's Intent To Issue dated August 2, 1991 provided that the grant of the subject permit should include the general and specific conditions in the Intent To Issue as well as the condition requiring lights on the dock for safety purposes as set forth in Finding of Fact 20 above. RECOMMENDED this 21st day of November, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3988 The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Both paragraphs regarding Respondent Cloud's testimony at the hearing go to his credibility as a witness and are not stated as a finding of fact and are therefore rejected. Paragraphs 1 and 2 regarding Rose Poynor's testimony appear to be supported by documents or testimony not received at the hearing and are therefore rejected. Paragraph 3 regarding Rose Poynor's testimony is either immaterial or irrelevant or goes to her credibility as a witness or is supported by facts not in the record. The paragraph regarding Roy R. Lewis' testimony goes to his credibility as a witness and is not a statement of fact. Paragraphs 1 and 2 regarding Robert Patten's testimony is more of a restatement of his testimony than a finding of fact. But in any event, are neither material or relevant. The next to the last paragraph is not supported by the record but see Finding of Fact 20. The last unnumbered paragraph is not supported by the record. See Finding of Fact 24. Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (1, 2, 3); 2 (4, 6); 3 (5); 4 (11); 5 (11); 6 (13); 7 (7, 8); 8 (7, 8); 9 (7, 8); 10 (7, 8); 11 (7); 12 (7); 13 (12, 15); 14 (7); 15 (12); 16 (7, 14); 17 (15); 18 (7, 16); 19 (17); 20 (7); 21 (7); 22 (7, 18); 23 (18); 24 (20); 25 (7, 17); 26 (23); 27 (19); 28 (21); 29 (22); 30 (7); 31 (17); 32 (7); 33 (9); 34 (9, 10); 35 (7, 8, 11, 12, 14-22); and 36 (7). Rulings on Proposed Findings of Fact Submitted by Respondents Laven and Cloud Respondents Laven and Cloud have divided their findings into two groups (1) Findings of Fact and (2) Ultimate Findings. Since the Findings of Fact are duplicative of the Ultimate Facts or are only restatements of the witnesses testimony, I will respond only to the Ultimate Facts. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (1); 2 (3); 3 (2); 4 (4, 6); 5 (3); 6 (7, 12); 7 (7, 17, 18); 8 (7); 9 (7); 10 (7, 24); 11 (7, 24); 12 (22); 13 (17); 14 (is a duplication of paragraph 13); 15 (20); 16 (21) and 17 (16). COPIES FURNISHED: Alan S. Dorrill 1726 Floyd Street Sarasota, FL 34239 F. Craig Richardson, Esquire Icard, Merrill, Cullen, Timm, Furen, & Ginsbrug, P.A. 2033 Main Street, Suite 600 Sarasota, FL 34237 Carol Forthman, Esquire Maureen A. Eggert, Certified Legal Intern 2600 Blairstone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
