Findings Of Fact The Petitioner is a special tax district created by special act of the Florida Legislature. Chapter 71-822, Laws of Florida. The district covers approximately seventy-two square miles in northern Palm Beach County and southern Martin County, Florida. Petitioner's purpose is to provide water, sewer, drainage and solid waste services within the district. In conformity with its powers, the Petitioner operates an advanced waste water treatment plant on property which it owns in northern Palm Beach County. Petitioner has secured appropriate permits from DER in order to construct and operate the treatment plant. The treatment plant is among the most advanced in southeastern Florida. It has a four million gallon daily capacity, which could be increased to an eight million gallon capacity. In treating waste water the plant utilizes filtration, disinfection, retention in a holding pond, and discharge into a remote off-site area. The present discharge system is to pump effluent from the retaining pond through a canal or drainage system to a recharge or discharge lake which is located approximately three miles north and west of the treatment plant. This is known as the western discharge system, and was installed at a cost of approximately one million dollars. Due to the large amounts of pumping activity, it is an expensive system to utilize. Through its instant application, the Petitioner is seeking a permit allowing it to discharge effluent on-site. Effluent would flow into percolation ponds that have already been constructed. Effluent would settle in the ponds, and eventually would percolate through the soil. This system would he less expensive to operate than the western discharge system. Petitioner is interested in experimenting with the amount of waste water treatment that can be obtained through action of vegetation in the percolation ponds upon the effluent. Such a natural system, if it operated effectively, could save the Petitioner additional money in treating waste water by reducing the need for chemical treatment. Petitioner's waste water treatment presently results in a discharge of effluent which within some parameters meets even drinking water standards. The Petitioner's system very effectively treats bio-chemical oxygen demand ("bod"), suspended solids, nitrogen, and phosphorus in the effluent. Reports have been submitted by the Petitioner to DER which indicate that the system does not meet DER's standards for advanced waste water treatment. Samples upon which these reports were based were taken at a point in the system before the effluent was subjected to the action of the retention pond and the subsequent bumping into the western discharge system. Samples taken beyond the retention pond indicate that DER's standards are met for "bed", suspended solids, total nitrogen, and total phosphorus. The Intervenor owns property adjacent to the Petitioner's waste water treatment plant. The Intervenor operates a well field and drinking water treatment plant on the property, and provides drinking water to residents of the Town of Jupiter and surrounding communities from the well field. The Intervenor acquired its treatment plant, and surrounding well fields from a private utility company. The Petitioner was aware of the well field when it purchased the property upon which it presently operates its waste water treatment plant. While the Petitioner's plant adequately treats waste water in terms of "bod", suspended solids, total nitrogen, and total phosphorus it does not treat the waste water for heavy metals, pesticides, or viruses. These are common elements found in waste water effluent in the south Florida area. The Petitioner's proposal is to discharge its effluent into on-site ponds. The effluent would then percolate into the ground. The retention ponds are located at a distance from 1200 to 1600 feet from the nearest of the Intervenor's wells. Water which percolates from these ponds would flow directly toward the wells, and would eventually find its way into the wells. The flow from the retention ponds to the wells would be increased due to the draw-down effect that the wells have on the surrounding water table. As water is drawn from the wells, the adjoining water table becomes depressed in the area of the wells, and water from the surrounding area flows more rapidly into the area of the wells. Heavy metals will not be filtered out as a result of retention or percolation. Heavy metals in the effluent would eventually find their way into the Intervenor's well fields. Estimates as to the amount of time that it would take for water from the percolation ponds to reach the wells varied from four months to six years. The longer estimate appears the more reasonable; however, the evidence is conclusive that eventually waters from the percolation ponds would reach the wells, and that heavy metals in the water would not be filtered out. The Petitioner proposes to obviate any problems with heavy metals reaching the well fields by operating testing wells between the percolation ponds and the well fields. If any heavy metals were detected in the ground water, Petitioner would again use the western discharge system rather than the percolation ponds. While this would prevent increased contamination of the wells, contamination that had already reached the test wells would reach the Intervenor's wells. It was suggested that the percolation ponds could be drawn down in order to reverse the flow of ground water back into the percolation ponds, thence to be pumped through the western discharge system. In order to accomplish this, however, the percolation ponds would have to be more than forty feet deep, which they are not. The effect of heavy metals intruding into the Intervenor's water supply could be to increase the cost of treatment, or to render the wells unfit for use. Uncontaminated drinking water supplies are rare in the northern Palm Beach County area, and the expense of finding a new water supply is difficult to calculate.
Findings Of Fact The permit Applicant and Co-Respondent, Florida Medical Facilities, Inc. is the owner and developer of a 60-acre tract of land upon which it has constructed a hospital and will construct various attendant laboratories, medical offices and the like. Additionally, the Applicant is the owner of approximately five acres of land adjacent to its original 60-acre site which lies on Morningside Drive in Englewood, Sarasota County, Florida. The Applicant proposes to construct and operate the wastewater treatment plant on that 5-acre parcel. The Applicant proposes to construct an extended aeration wastewater treatment plant and effluent disposal drain field system which will accommodate and dispose of all wastewater effluent on the site by the absorption bed, land application method. The proposed sewage treatment plant will have an average daily design flow capacity of 50,000 gallons per day. The anticipated peak flow of the treatment plant will be 60,000 gallons per day. The plant will generate and dispose of approximately 900 gallons of waste sludge on a daily basis. The facility would employ dual drain fields, use of which would be rotated on a weekly basis. The proposed average hydraulic loading rate would be 3.21 inches per day or two gallons per day, per square foot of drain field. The proposed facility will serve a 100-bed community hospital, assorted medical offices, a diagnostic laboratory and a 75-bed nursing home. The permit applicant has agreed and stipulated that chemical, nuclear and other hazardous and noxious waste materials, blood, body parts, medicines, and drugs will not be introduced into the sewage treatment system plant or drain fields. The Applicant (FMF) originally proposed to dispose of sewage effluent emanating from its hospital and other facilities by transmission of it through force-mains to existing public wastewater systems, one of which is in Charlotte County and the other in Sarasota County. After exploring these possibilities, these alternatives proved to be either too expensive or to involve transmission of effluent over too great a distance to make these options feasible. Sarasota County has a local pollution control program approved by the DER, pursuant to Section 403.182, Florida Statutes. Under this program the Sarasota Environmental Service Department reviews domestic wastewater treatment facility permit applications pending before the DER and makes recommendations on their disposition. The county's ordinance concerning such facilities is equivalent to the DER standards, except in some respects it is stricter Mr. Russell Klier of the county environmental services department established that the proposed project as planned and designed, will comply with county ordinances regarding wastewater treatment plants. Indeed, it was established through Mr. Klier's testimony, that the proposed project has more redundancy and reliability safeguards than any other such project presently operating in Sarasota County. The proposed sewage treatment plant and disposal system is designed to attain the secondary level of treatment required by Chapter 17-6.060, Florida Administrative Code. The effluent disposal system will provide for disposal of effluent in an absorption field system as envisioned by Chapter 17-6.040(4)(M), Florida Administrative Code and the Department's "Land Application Manual," incorporated by reference in that rule. The system, as proposed, will have the additional safeguards required by the "Land Application Manual" in order to attain "Class I reliability." The hospital, which is the initial facility to be constructed on the 60-acre site, is largely completed, and is being served by a temporary "package" sewage treatment plant until the permit application is resolved. The package sewage treatment plant, as well as the proposed plant and drain field land application system will only serve the medical center complex. All on-site stormwater and surface water run-off from both the 60-acre original medical center site, as well as the 5- acre proposed sewage treatment plant and disposal site, will be managed by directing stormwater and surface water run-off to holding ponds to be constructed and maintained on the original 60-acre site. Steven Houghton was accepted as an expert engineering witness. It was thus established that the system as designed will meet all water quality parameters regulated and enforced by the DER and Sarasota County in terms of the quality of the effluent generated by the plant and disposal system for disposal by land application. In this connection, he established that no nuclear, infectious, toxic or noxious waste will be processed by the system or introduced into the system nothing other than domestic-type sewage will be treated, processed and disposed of by the proposed system. Mr. Houghton acknowledged that the project will be located in an historically flood-prone vicinity, but that will not affect the quality or effectiveness of the operation of the plant nor the safe disposal of the resulting effluent. In that regard, the Applicant will place fill at the drain field site so as to provide a more effective soil percolation condition than that presently existing in the soils at the drain field site. Additionally, the Applicant will provide a sewage storage tank to provide extra reliability and avoidance of pollution caused by sewage overflows in the event of any excessive sewage flows into the plant, and as a safeguard against disposing of insufficiently treated effluent during periods of high rain and high surface or ground water conditions. Additionally, the system will be constructed and operated with sufficient redundancy of electrical and mechanical components so as to provide auxiliary capacity throughout the system, allowing it to operate efficiently 24 hours a day and to continue to provide treatment and disposal of the effluent in accordance with secondary treatment and Class I reliability standards, even during periods of mechanical or electrical outages. Petitioner Mary Wagoner owns and resides on acreage generally south and adjacent to the proposed project site. Mrs. Wagoner uses a potable water well in the shallow aquifer with a depth of approximately 35 feet. Mrs. Wagoner's well has recently been tested and at this time provides good, safe, potable water which she uses both for drinking, cooking, domestic usage, as well as water for her livestock. Mrs. Wagoner's well is less than 500 feet from the proposed "wetted area" of the drain field land application disposal site. Mr. Edward Snipes was accepted and testified as an expert witness in the areas of engineering and wastewater engineering on behalf of the Department. He corroborated Mr. Houghton's testimony in establishing that the project would meet the Department's standards for water quality and Class I reliability in large part. It was shown that the project will not likely have harmful effects on the Petitioners' water wells. Mr. Snipes established that the Department's "Land Application Manual" embodied in Rule 17-6.04(4)(Q), Florida Administrative Code requires a buffer zone of only 100 feet, instead of 500C feet, from the wetted area of the sewage effluent disposal site, due to the type of system and level of treatment proposed. That is, the system would provide secondary treatment, with additional safety measures incorporated in the design and operation so as to achieve Class I reliability. This Class I reliability standard includes a sufficiently high rate of disinfection so as to allow unrestricted public access to the site, and thus would meet the most stringent Class I reliability standards extant in Rule 17- 6.040(4)(M), Florida Administrative Code. This permits a reduced buffer zone between the wetted area of the drain field and any adjacent, shallow-water wells. Thus, the buffer zone would, in the case of this plant, be allowably reduced from 500 feet to 100 feet. In only one respect, was any doubt cast by Petitioner's testimony and evidence on the showing of reasonable assurances that all Department water quality and wastewater treatment standards will be met. That doubt concerns the distance from the bottom of the drain field to the water table elevation at the drain field site, as that relates to the ability of the system to continue to treat and dispose of effluent within appropriate standards in this admittedly flood-prone area, as that problem would in turn relate to potential contamination of ground water in the area, especially in times of high rainfall and high ground water levels. In that connection, Petitioner Wagoner offered Herman Weinberg as an expert witness in civil engineering and he was accepted. Mr. Weinberg acknowledged that he was not a soil engineer and acknowledged that the Department or its witnesses were more knowledgeable about wastewater regulation, treatment and disposal methods than he. He opined, however, that the plant may not be able to reach Class I reliability due to its location in a flood-prone area. He fears that insufficient soil testing and water quality testing had been done prior to the filing of the permit application. and prior to the ultimate construction of the project, if that is to be the case. Section 17-6.040(4) (M), Florida Administrative Code, adopts by reference the United States Environmental Protection Agency design criteria for mechanical, electrical and fluid system and component reliability manual. That manual sets forth certain minimum standards for Class I reliability sewage treatment and disposal plants and systems. In this regard, the rule in that manual establishes that wastewater treatment works include holding ponds and basins and other structures of the disposal system. It provides that all treatment works, structures, as well as electrical and mechanical equipment, shall be protected from physical damage by flooding of a magnitude occurring on the average of once in a hundred years, the so- called "100-year flood." In this connection, it was established through witness Weinberg's testimony as well as that of Mr. Houghton, the Applicant/Respondent's witness, that the 100-year flood plan elevation on and around the subject site is 12 feet above mean sea level. The top of the proposed drain field would be located at 12.33 feet elevation. The bottom of the drain field would be at 10.33 feet elevation. The water table level established by witness Houghton as a result of his survey and calculations, is at 8.33 feet elevation. The Department of Environmental Regulation, in its "Land Application Manual," which provides criteria for sewage plant and disposal system construction and operation, requires a 36-inch minimum separation between the bottom of a drain field and the design water table level. Thus, the legally operative Class I reliability standards, incorporated in the above-referenced rule and manuals, and which the Applicant and the Department agree is the level of reliability required, given the conditions and the proximity of Petitioner's well, can only be met if the drain field disposal system is at this required elevation of 36 inches above the design water table level. Affirmative, reasonable assurances that this safeguard will be incorporated in the subject system are necessary in view of the fact that Petitioner Wagoner's potable water well is clearly less than 500 feet from the wetted area of the drain field site. In this connection, the Applicant/Respondent has proposed placing fill soil of a suitable type for adequate percolation and land application treatment of the effluent on the drain field site, however, it has not been established that this will be done to such an extent as to raise the elevation of the drain field sufficiently so that the bottom of the drain field is a minimum of 36 inches above the design water table. The installation of an adequate depth of fill soil of a suitable percolation characteristic must therefore be a condition on the issuance of the permit. Further, in that regard, the Applicant/Respondent's soil test and calculation of tile ground water level or "design water table," occurred in January and February of 1985, at a time when the southwest region of Florida was in a drought or dry condition, such that the water level or ground water table at normal rainfall conditions would likely be at a higher elevation. Thus, a grant of this permit must be conditioned upon the installation of sufficient, appropriate quality fill soil to ensure that the minimum 36-inch separation between the drain field bottom and the water table is maintained during normal water table or rainfall conditions. If this measure is not taken, given the 2-foot separation between the drain field, as designed, and the water table, the oxygen transferring capacity of the soil beneath the drain field may not be sufficient to satisfy the oxygen demand required for consistently adequate treatment and safe disposal of the sewage effluent. Additionally, in this same context, Chapter 1 of the DER Land Application Manual at Section 1.3, requires that sufficient storage capacity exist on-site to ensure retention of sewage effluent during conditions which preclude land application, such as high ground water conditions or flooding conditions. This capacity should be equivalent to three days maximum daily flow at the design capacity of the plant, or in this case, 180,000 gallons. Although the Applicant, by its plans and specifications in evidence, has assured that a sewage effluent storage tank will be constructed and operated, it has failed to establish that sufficient storage capacity will be incorporated to assure the retention of 180,000 gallons of effluent. Any grant of the permit application should be conditioned upon such an assurance. Finally, in connection with the above-mentioned condition concerning installation of sufficient, appropriate soil filling to allow for a minimum 36-inch amount of unsaturated soil beneath the drain field, that addition of fill should also be of a sufficient type and amount to ensure that the Applicant's proposed rotation or "resting" of drain fields for 7-day periods will be adequate to ensure that the subject amount of soil is unsaturated before re-use of either of the two drain fields. There should be incorporated in these conditions, upon a grant of the permit, the requirement that the Department monitor construction of the proposed facility to ensure that the above conditions are adequately met, in view of the low-lying terrain at the drain field site and the flood-prone condition of that locality. Petitioner Mary Nygaard testified on behalf of herself and her husband, Lyle A. Nygaard. Mrs. Nygaard complains of feared pollution of her shallow-water potable well which she maintains is within 500 feet of the drain field and sewage plant site. Mr. Nygeard established that the well is 187.1 feet from the Petitioner's southern property boundary, but acknowledged that no survey has been done delineating the distance to the proposed wetted area of the drain field. It was not otherwise proven how far the Nygaard's potable well is from the wetted area of the proposed drain field where the effluent will be disposed of. Various easements and roadways lie between the Nygaard's well and the wetted area of the proposed drain field site with indeterminate dimensions, thus it was not proven what distance exists between the Nygaard's well and the drain field site other than that it exceeds 187.1 feet.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Florida Medical Facilities for a permit authorizing construction of an extended aeration, wastewater treatment plant and disposal system to serve only the Englewood Hospital and Medical Center project in Englewood, Sarasota County, Florida, referenced above be GRANTED, provided that the above-delineated conditions upon a grant of the permit are complied with. DONE and ENTERED this 30th of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986. COPIES FURNISHED: Lyle and Mary E. Nygnard 740 Morningside Drive Englewood, Florida 33533 Harlan Domber, Esquire ISPHORDING, PAYNE, KORP and MUIRHEAD, P.A. 333 West Miami Avenue Venice, Florida 33595 James H. Burgess, Jr., Esquire SYPRETT, MESHAD, RESNICK and LIEF, P.A. Post Office Box 1238 Sarasota, Florida 33578 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following specific rulings are made on the proposed findings of fact submitted by the parties to the extent that the proposals actually constitute proposed findings of fact as opposed to recitations of testimony and evidence, conclusions and arguments of law. APPLICANT/RESPONDENT'S PROPOSED FINDINGS OF FACT Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 7 constitutes a conclusion of law. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Additionally, paragraph 11 constitutes in part a conclusion of law. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. Accepted, but this proposed finding of fact is unnecessary and immaterial to a resolution of the material issues presented. Rejected as constituting a mere discussion of evidence presented or not presented. Rejected as constituting a mere discussion of evidence presented or not presented. RESPONDENT/DEPARTMENT OF ENVIRONMENTAL REGULATION'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted as modified by the Findings of Fact and Conclusions of Law in the Recommended Order concerning the conditions which must be met before the permit should be granted as that relates to Class I reliability standards and the "buffer zone" issue. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the necessity of the installation of a minimum 36-inch adequate soil percolation zone and adequate sewage effluent storage capacity. Accepted in part, but rejected to the extent that this proposed finding of fact maintains that the nature of Mrs. Wagoner's well has been impossible to obtain due to her refusal to allow inspection. Indeed, Mrs. Wagoner adduced competent evidence of the water quality in her well. Accepted in part, but modified by the Findings of Fact in the Recommended Order concerning the additional conditions that should be placed upon the permit related to its location in a flood-prone area, and related to the distance between the bottom of the drain field and the high water table. Accepted. Accepted, but modified by the Findings of Fact in the Recommended Order concerning the conditions referenced above which must be met for Class I reliability and for avoidance of harmful effect on Petitioner's water well. Accepted. Accepted. Accepted.. Accepted, but modified by the Findings of Fact in the Recommended Order concerning additional conditions referenced above which must be met concerning Class I reliability and protection of water quality in Petitioner's-well. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as constituting merely a discussion of testimony. Accepted. Accepted. Accepted. Accepted, but this proposed finding is irrelevant to a resolution of the material issues presented. Accepted. Rejected as merely being a recitation of testimony. Accepted. PETITIONER WAGONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, except to the extent that it indicates the applicant will situate the facility in a manner so as not to be accessible to the general public. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as not comporting with the competent, substantial, credible evidence presented. Rejected as constituting a discussion and conclusion of law. 13 and 14. Rejected. These two proposed findings in reality constitute discussion and conclusions of law. 15 and 16. Rejected. These two proposed findings in reality constitute discussion and conclusions of law. They are rejected for the additional reason that portions of those two paragraphs that constitute proposed findings of fact do not comport with the competent, substantial, credible evidence and testimony presented. 17 through 31. These proposed findings are rejected as constituting conclusions of law and, to the extent that they embody proposed findings of fact, are not supported by the competent, substantial, credible evidence and testimony presented. The evidence and testimony shows that reasonable assurances (except as to the permit conditions recommended) have been provided that all pertinent regulatory criteria have been or will be met. The EPA Manual criteria referenced in these proposed findings of fact (17-31) are not mandatory, whereas those in Subsection (4)(q) of the above-referenced rule are mandatory and have been reasonably assured by the applicant to be met subject to the conditions recommended on a grant of the permit by the Hearing Officer. Accepted, except to the extent that the applicant is reputed not to have provided data to substantiate the estimated design water table. The applicant's proof of the water table elevation was un-refuted. Accepted as to the first sentence, the remaining portion of that proposed finding of fact is irrelevant and unnecessary to a disposition of the material issues presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Accepted to the extent that the conditions recommended to be attached to a grant of the permit envision assurance being provided before a grant of the permit that the issue raised by proposed finding No. 39 is satisfied. Accepted. Accepted as to its second sentence, the first sentence in that proposed finding is rejected as not comporting with the competent, substantial, credible testimony and evidence presented, and as being unnecessary to a resolution of the material issues presented. Accepted. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. 47. Rejected as constituting a conclusion of law. 48. Rejected as constituting a conclusion of law. 49. Rejected as constituting a conclusion of law. 50. Rejected as constituting a conclusion of law. 51. Rejected as constituting a conclusion of law. 52. Rejected as constituting a conclusion of law. 53. Rejected as constituting a conclusion of law. 54. Accepted. 55. Rejected as constituting a conclusion of law. 56. Rejected as constituting a conclusion of law. 57. Rejected as constituting a conclusion of law. 58. Rejected as constituting a conclusion of law. 59. Rejected as constituting a conclusion of law. 60. Rejected as constituting a conclusion of law. 61. Rejected as constituting a conclusion of law. 62. Rejected as constituting a conclusion of law. 63. Rejected as constituting a conclusion of law. 64. Rejected as constituting a conclusion of law. 65. Rejected as constituting a conclusion of law. 66. Rejected as constituting a conclusion of law. 67. Rejected as constituting a conclusion of law. 68. Rejected as constituting a conclusion of law. 69. Rejected as constituting a conclusion of law and for the additional reason that the last sentence is a proposed finding of fact not supported by competent, substantial credible evidence and testimony presented. Rejected as constituting a conclusion of law and for the further reason that the proposed finding of fact is not supported by competent, substantial, credible testimony and evidence presented. Rejected in part as constituting a conclusion of law and accepted to the extent that reasonable assurances concerning the effect of the water table elevation discussed in the Recommended Order have not been provided and such assurance should be a condition on a grant of the permit. The remainder of that proposed finding of fact is not supported by the competent, substantial, credible evidence presented and is irrelevant. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Rejected as constituting a conclusion of law. Accepted. Accepted. Accepted. Rejected as not comporting with the competent, substantial, credible testimony and evidence presented.
The Issue The issue in this case is whether Respondent KW Resort Utilities Corp. ("KWRU") is entitled to issuance, by Respondent Department of Environmental Protection ("DEP"), of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021 (collectively, the "Permit at Issue"), authorizing the major modification of KWRU's existing permit to operate a domestic wastewater facility located at 6630 Front Street, Stock Island, Florida 33040. The Permit at Issue would authorize the expansion of KWRU's existing domestic wastewater facility and the installation of two additional underground injection wells.
Findings Of Fact The Parties Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Last Stand has challenged the Permit at Issue in this proceeding. Petitioner George Halloran is a natural person residing in Key West, Florida, and is a member of Last Stand. Halloran has challenged the Permit at Issue in this proceeding. Respondent KWRU is a Florida corporation. KWRU is the wastewater utility service provider that owns and operates the Existing Wastewater Facility2/ and is responsible for its design, construction, operation, and maintenance. It is the applicant for the Permit at Issue in this proceeding. Respondent DEP is the state agency charged with administering the domestic wastewater program in Florida pursuant to chapter 403, Florida Statutes, implementing, as applicable, rules codified at Florida Administrative Code Chapters 62-4, 62-302, 62-303, 62-520, 62-528, 62-600, and 62-620, and various industry standards and manuals incorporated by reference into DEP rules. DEP's proposed agency action to grant the Permit at Issue is the subject of this proceeding. Background and Overview Domestic Wastewater Regulation in the Florida Keys The State of Florida has recognized the need to protect the Florida Keys' unique, sensitive environmental resources. To that end, portions of the Florida Keys are designated, pursuant to statute and by DEP rule, as an Outstanding Florida Water ("OFW"). § 403.061(27), Fla. Stat.; Fla. Admin. Code R. 62-302.700(9). The Florida Legislature also designated the Florida Keys an Area of Critical State Concern. § 380.0552, Fla. Stat. A stated purpose of this designation is to protect and improve the Florida Keys nearshore water quality through construction and operation of wastewater facilities that meet the requirements of section 403.086(10). Additionally, the Florida Legislature has enacted section 403.086(10), which addresses the discharge of domestic wastewater in the Florida Keys. That statute finds that the discharge of inadequately treated and managed domestic wastewater from small wastewater facilities and septic tanks and other onsite systems in the Florida Keys compromises the coastal environment, including the nearshore and offshore waters, and threatens the quality of life and local economies that depend on these resources. Section 403.086(10) directs that after December 31, 2015, all new or expanded domestic wastewater discharges must comply with the treatment and disposal requirements of the statute and DEP rules. Specifically, domestic wastewater treatment facilities having design capacities greater than or equal to 100,000 gallons per day must provide basic disinfection of the wastewater pursuant to DEP rule and must treat the wastewater to a level of treatment, which, on a permitted annual average basis, produces an effluent that contains no more than the following concentrations of the specified constituents: Biochemical Oxygen Demand ("CBOD5") of 5 milligrams per liter ("mg/L"); Suspended Solids of 5 mg/L; Total Nitrogen, expressed as N of 3 mg/L; and Total Phosphorus, expressed as P of 1 mg/L. Collectively, these effluent standards constitute the "advanced wastewater treatment" ("AWT") standards. Section 403.086(10)(e) also imposes requirements regarding disposal of treated domestic wastewater effluent through underground injection. Section 403.086(10)(e)1. requires Class V injection wells serving domestic wastewater treatment facilities having design capacities of less than one million gallons per day (hereafter "MGD") to be at least 90 feet deep and cased to a minimum depth of 60 feet, or to such greater cased depth and total well depth as may be required by DEP rule. Section 403.086(10)(e)2. requires Class V injection wells serving wastewater treatment facilities with design capacities greater than or equal to 1 MGD, excluding backup wells, to be cased to a minimum depth of 2,000 feet or to such greater depth as may be required by DEP rule. The Existing Wastewater Facility KWRU currently is permitted, pursuant to Permit FLA014591 (the "Existing Permit"), to operate a domestic wastewater facility (the "Existing Wastewater Facility" or "Facility")3/ located at 6630 Front Street, Stock Island, Florida. Stock Island is located immediately east and slightly north of Key West. By way of background, KWRU's domestic wastewater system currently consists of three elements: a collection system, which collects wastewater from serviced properties; a transmission system, which transmits wastewater from the collection system to the treatment plant; and the Existing Wastewater Facility, which treats the wastewater and then sends it either as reclaimed water for reuse as irrigation water at the Key West Golf Club, or for toilet flushing or air conditioning makeup water at other facilities specified in the Existing Permit,4/ or disposes of it as treated effluent through two underground injection wells. No modifications to the collection or transmission systems have been proposed or challenged. Thus, only the proposed modifications to the Existing Wastewater Facility are at issue in this proceeding. The Existing Wastewater Facility serves residential and commercial properties located on Stock Island, Florida, immediately adjacent to Key West in the lower Florida Keys. Specifically, the Facility treats domestic wastewater originating from approximately 1,416 existing residential connections and 216 commercial connections. The commercial connections consist of a convalescent center, a college, restaurants, recreational vehicle parks, an animal clinic, and a hospital. There are no industrial wastewater contributors to the Facility. The Facility includes a Category III, Class C wastewater treatment facility operating under the Existing Permit. It is staffed by a Class C or higher operator for six hours a day, seven days per week, in accordance with the Existing Permit and applicable DEP rules. The Facility has a design capacity and a permitted capacity5/ of .499 MGD annual average daily flow ("AADF") and consists of two treatment trains having capacities of .249 MGD and .250 MGD AADF. These treatment trains are piped together to allow operation of the Facility as a single plant. The Facility was upgraded in the mid-2000s and is capable of treating influent wastewater to AWT. However, as authorized under the Existing Permit, the Facility currently treats domestic wastewater to secondary standards, which do not impose nitrogen or phosphorous limits. Under the Existing Permit and in accordance with section 403.086(10), the Facility is not required to meet AWT standards until January 1, 2016. Vacuum and gravity collection systems collect the domestic wastewater from the properties that KWRU services. Wastewater influent from the collection systems flows through the transmission system to a splitter box at the KWRU property, where it is sent to the Facility for treatment. The Facility contains two treatment trains, each consisting of a bar screen, an equalization tank, an aeration tank, an anoxic zone, a post-aeration basin, a clarifier, a silica sand/river rock filter, and a chlorine contact chamber. The bar screens, which constitute the first step in the treatment trains, remove floatables from the wastewater stream. After passing through the bar screens, the wastewater drops into two equalization tanks. As their name indicates, the equalization tanks smooth out the peaks in wastewater flow to the Existing Wastewater Facility. Specifically, wastewater flows to the Facility in large volumes during two periods each day, morning and evening, corresponding with peak water use by the serviced properties. During these large flow volume periods, the equalization tanks fill up with sewage influent, which is meted out during lower-flow periods for treatment by the Facility. In this manner, the Facility treats roughly the same amount of wastewater per hour, which is key to the steady state operation of, and the reliable treatment of the wastewater by, the Facility. From the equalization tanks, the wastewater is directed to the three-stage bioreactor portion of the treatment process. Microorganisms are utilized at each stage to break down the waste. The first stage of the bioreactor process occurs in the aeration basins. Here, wastewater enters the fine-air zone, where it and the microbes used in this stage of the treatment process come into contact with tiny oxygen bubbles. The microorganisms use the oxygen to oxidize the waste and complete the ammonification of the wastewater. The wastewater then passes through bulkheads to the anoxic zones, where the oxygen level is extremely low. In the anoxic zones, bacteria denitrify, or remove nitrogen from, the wastewater. The wastewater is then sent to the post-aeration basins, where excess carbon is removed through oxidation. Thereafter, the wastewater is sent to the clarifiers, where the microorganisms settle out of the wastewater to form a solid precipitate on the bottom of the tank. The precipitate is plowed into a sump and returned by pump to the bioreactors, where the microorganisms are reused in the activated treatment process. When the microorganisms cease to optimally function in treating the waste, they are culled from the treatment process and sent to a digester, where they oxidize, through the endogenous decay process, to the point that they die and only their endoskeletons remain. Sludge, consisting of the endoskeletons and water, is pumped to a sand filter drying bed. The filtrate water is pumped back through the Wastewater Facility to be reused in the wastewater treatment process, while the dried endoskeletons, which are termed "biosolids," are transported offsite for disposal in a Class I landfill. The treated, clarified wastewater is pumped through sand/rock filters, then to the chlorine contact chambers where it is exposed to a minimum of 15 minutes of chlorine disinfection. As noted above, the Existing Permit authorizes the reuse of reclaimed water for, among other uses, irrigation by land application at the 100.27-acre Key West Golf Club golf course. The golf course irrigation system consists, in part, of two unlined interconnected ponds that do not directly discharge to surface waters6/ and that have a storage capacity exceeding one million gallons. KWRU sends reclaimed water to the golf course through its reclaimed water reuse system only in the quantity required to meet the course's irrigation needs. The Existing Permit imposes a minimum residual chlorine level of 1 mg/L and a maximum of 5 mg/L turbidity for the treated wastewater to be considered reclaimed water that can be reused as irrigation at the golf course or as otherwise authorized in the Existing Permit. If the treated wastewater does not meet these standards, switchover/interlock equipment at the Facility disables the power to the pumps that send the reclaimed water offsite for reuse.7/ At that point, the treated wastewater is considered treated effluent.8/ The effluent fills the effluent wet well and is piped directly to the existing underground injection wells for disposal. Pursuant to the Existing Permit, the effluent is disposed of by gravity flow through two Class V, Group 3, ten- inch underground injection wells bored to a depth of 110 feet and cased to a minimum depth of 60 feet. Collectively, the two injection wells have a maximum permitted capacity of .499 MGD AADF. As authorized by the Existing Permit, the underground injection wells discharge the effluent to Class G-III ground water within the Key Largo Limestone.9/ The underground injection wells are not the primary means of disposal for the treated wastewater, in the sense that they are used to remove effluent from the Facility only if and when reclaimed water is not needed by the golf course or the other receiving facilities, or when the treated wastewater does not meet the required residual chlorine and turbidity limits discussed above. The Existing Permit and the activities authorized thereunder are not at issue in this proceeding. Activities Authorized by the Permit at Issue The Permit at Issue proposes to authorize the construction of a new .350 MGD treatment train, which will increase the design capacity and permitted capacity of the plant from .499 MGD to .849 MGD AADF. The proposed modification of the Existing Wastewater Facility entails the addition of a 90-foot diameter tank containing an influent screen, a 105,554-gallon influent equalization tank, a 163,000-gallon aeration chamber, a 154,725-gallon post-anoxic chamber, a 35,525-gallon re-aeration zone, a 112,062-gallon clarifier, and a 317,950-gallon digester. The sand filters and chlorine contact chambers currently in use will be expanded to accommodate flows from the new treatment train, and the chlorine contact chambers will be changed to liquid bleach feed. The Permit at Issue also proposes to authorize the construction and operation of a new .499 MGD AADF underground injection well system consisting of two new Class V, Group 3 ten- inch wells, drilled to a depth of at least 110 feet and cased to a depth of at least 60 feet, which would discharge effluent to Class G-III ground water within Key Largo Limestone. When placed into service along with the two existing injection wells, the total design capacity and permitted capacity of all four underground injection wells would be .998 MGD AADF.10/ The existing reclaimed water reuse system for the Key West Golf Club or the other receiving facilities currently is authorized for a permitted flow capacity of .499 MGD AADF and a design capacity of 1 MGD AADF. The Permit at Issue would authorize the construction of a new reclaimed water reuse system having a permitted capacity of .849 MGD AADF; however, the design capacity of the system remains 1 MGD AADF, and the amount of reclaimed water sent to the golf course for reuse as irrigation is not being changed by the Permit at Issue from that currently authorized by the Existing Permit. Hereafter, the proposed modifications to the Existing Wastewater Facility that are the subject of the Permit at Issue are referred to as the "Project." The expanded facility resulting from completion of the Project is referred to as the "Expanded Wastewater Facility." The Existing Wastewater Facility treatment trains will be modified to meet the AWT standards as of January 1, 2016. Specifically, an alkalinity control system, a carbon injection system, and an alum injection will be added and certain aspects of the wastewater treatment process will be modified as necessary to meet the AWT standard. The new treatment train proposed as part of the Project will be designed to meet the AWT standards upon operation, which will not occur sooner than 2016. Accordingly, as required by section 403.086(10(d)1., all effluent from the Expanded Wastewater Treatment Facility will meet the AWT standards as of January 1, 2016. As a result of conversion of the wastewater treatment process to AWT, and even assuming all treated effluent is injected down the wells, total nitrogen loading will be decreased from 58 pounds per day to 15.9 pounds per day and total phosphorous loading will be decreased from 14.4 pounds per day to 5.3 pounds per day. This is the case even though the volume of effluent disposed of through the wells may as much as double. Only the activities comprising the Project, which are the proposed to be authorized by the Permit at Issue, are the subject of this proceeding. The Permitting Process The overarching purpose of the wastewater facility permitting process, including permitting of modifications to an existing wastewater facility, is to ensure that the wastewater facility does not discharge wastes to any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such waters. This is accomplished by requiring the facility to be designed, constructed, and operated in accordance with applicable DEP rule standards, which incorporate industry standards. Fla. Admin. Code R. 62- 600.100(1). Similarly, the overarching purpose of the Underground Injection Well System permitting process is to protect the quality of underground sources of drinking water and prevent degradation of the quality of other aquifers adjacent to the injection zone that may be used for other purposes. This is accomplished by requiring underground injection wells to be designed, constructed, and operated in accordance with applicable DEP rule requirements and standards. Fla. Admin. Code R. 62- 528.100(1). The Wastewater Facility or Activity Permit Application Form 1, General Information, and Application Form 2A, Permit for Domestic Wastewater Treatment and Reuse or Disposal Facility, which are adopted by rule, are the forms that must be completed and submitted to DEP to receive authorization to modify existing wastewater facilities or construct new wastewater facilities. This form includes a list of requirements, some (but not necessarily all) of which apply to proposed modification of an existing wastewater facility. The form requires that a Florida- licensed P.E. certify that the engineering features of the project have been designed by the engineer in conformance with the sound engineering principles applicable to such projects, and that, in his or her professional judgment, the facility, when properly constructed, operated, and maintained, will comply with all applicable statutes and the rules. The Application to Construct/Operate/Abandon Class I, III, or V Injection Well System, which is adopted by rule, is the application form that must be completed and submitted to DEP to receive authorization to construct and operate a Class V Injection Well System. This application form includes a list of requirements, some (but not necessarily all) of which apply to a specific underground injection well construction project. The form requires that a Florida-licensed P.E. certify that the engineering features of the injection well have been designed and examined by the engineer and found to conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application. By signing and sealing the application, the P.E. certifies that, in his or her professional judgment, there is reasonable assurance that the injection well, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules. Once the application forms are submitted, DEP permitting staff reviews the applications and determines whether items on the forms and any materials submitted to support those items are incomplete or need clarification. In that event, staff sends the applicant a Request for Additional Information ("RAI"), requesting the applicant to provide additional information to address incomplete or unclear aspects of the application. Once the applicant has provided information sufficient to enable DEP to review the application for issuance or denial of the permit, DEP determines the applications complete and reviews the project for substantive compliance with all applicable statutory and rule permitting requirements. DEP is authorized to issue the permit, with such conditions as it may direct, if the applicant affirmatively provides reasonable assurance, based on the information provided in the application, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of DEP standards or rules proposed in the application. Fla. Admin. Code R. 62-4.070(1). If the applicant fails to provide such reasonable assurance, the permit must be denied. Conversely, if the applicant provides such reasonable assurance, the applicant is legally entitled to issuance of the permit. Engineering Design of the Project KWRU retained Weiler Engineering Corporation to design the proposed modifications to the Existing Wastewater Facility and the new underground injection well (again, collectively referred to as the "Project") and to prepare and submit the applications for the Permit at Issue to DEP. Edward Castle and Christopher Johnson prepared the applications for the Permit at Issue. As the applicant, Johnson signed the application documents as required pursuant to the application form. As the engineer of record, Castle signed and sealed the certifications in the application forms, representing that he was the engineer in responsible charge of preparing the Project's engineering documents. Castle's signature and seal on the application forms for the wastewater treatment facility expansion portion of the Project constitute his representation that he designed and examined the engineering features of the wastewater treatment facility expansion; that these features conform to sound engineering principles applicable to the Project; and that, in his professional judgment, the wastewater treatment facility expansion portion of the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. Similarly, Castle's signature and seal on the application to construct the new underground injection wells constitute his representation that he designed the engineering features of these injection wells; that the injection wells conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that in his professional judgment, there is reasonable assurance that the wells, when properly maintained and operated, will discharge effluent in compliance with all applicable statutes and rules, including the requirement that the effluent discharged through the injection wells meet AWT standards as of January 1, 2016. As previously noted, the design capacity of wastewater treatment portion of the Expanded Wastewater Facility is proposed to be .849 MGD AADF. Castle selected this design capacity based on historic wastewater flows at the Existing Wastewater Facility and foreseeable projected wastewater treatment capacity demand in the future.11/ Specifically, to estimate future capacity demand, Castle considered development agreements, requests for utility service, the existence of scarified property and applicable development density, wetslips, recent property sales, and estimated and proposed in-fill development on Stock Island. He projected residential development wastewater treatment demand based on historic actual flow data from the Monroe County Sanitary Wastewater Master Plan ("Master Plan"), in conformance with the Recommended Standards for Wastewater Facilities, the so- called "Ten States Standards," a wastewater systems design and planning guidance document incorporated by reference in rule 62- 600.300(4). Additionally, Castle applied the estimated sewage flows codified in Florida Department of Health rule 64E-6.008, Table I, System Design Estimated Sewage Flows ("DOH Table I"), to estimate wastewater treatment demand for projected commercial and hotel development uses. Once Castle had projected wastewater capacity demand for residential and hotel/commercial uses at buildout on Stock Island, he factored in an additional 15 percent capacity safety factor to derive the .849 MGD AADF design capacity for the Expanded Wastewater Facility. Castle chose AADF, rather than the maximum monthly average daily flow or three-month average daily flow, as the timeframe for the design capacity based on historical flow amounts to the Existing Wastewater Facility and because of insignificant seasonal variations in historical flows to the Facility.12/ This is because the population on Stock Island contributing flow to the Existing Wastewater Facility is largely comprised of non-seasonal residents and commercial operations.13/ Nonetheless, to ensure the Expanded Wastewater Facility will have adequate capacity to effectively treat wastewater to the required standards during higher flow periods that may result from non- residential seasonal occupancy in the future, Castle assumed year-round, 100 percent occupancy for the projected hotel and commercial development on Stock Island in determining the design capacity for the Expanded Wastewater Facility. Castle estimated a peak hourly flow of 1.273 MGD for the Expanded Wastewater Facility. This figure estimates the maximum flow through the facility on an hourly basis specifically to take into account the diurnal variability of wastewater flow entering the facility. By definition, the peak hourly flow is a maximum hourly flow rather than the sustained flow or volume into or through the facility. The projected maximum hourly flow of 1.273 MGD, which was determined by multiplying the annual average daily flow by a peaking factor of 1.5, is an estimate of the maximum hourly flow wastewater coming into the Expanded Wastewater Facility's equalization tanks. Importantly, it is not the volume of wastewater flow, on an annual average daily basis, that will leave the facility's equalization tanks and flow through the facility's treatment process. Put another way, the 1.273 MGD peak hourly flow is not the Expanded Wastewater Facility's design capacity. As previously noted, the permitted capacity of the wastewater treatment portion of the Expanded Facility also would be .849 MGD AADF. The permitted capacity is the amount, on an annual average daily flow basis, that the wastewater treatment portion of the Expanded Wastewater Facility is authorized to treat and discharge. This metric establishes an absolute limit, on an annual average daily basis, on the quantity of wastewater that can be treated by, and discharged from, the Expanded Wastewater Facility. Also as discussed above, once the two new underground injection wells are installed, the total design capacity of the four wells at the Expanded Wastewater Facility will be .998 MGD AADF. The two new injection wells are being added to ensure adequate disposal capacity for the .849 MGD permitted capacity and, importantly, to accommodate the peak hourly flow. The reclaimed water reuse system currently has an authorized design capacity of 1 MGD AADF, and this is not being changed by the Project, although the permitted capacity is being increased to .849 MGD AADF. As discussed in greater detail below, neither the design capacity nor the permitted capacity of the reuse system is a function of the irrigation application rate per acre of the golf course, and neither represent the amount of irrigation applied to the golf course per day. In determining the design capacity for the Expanded Wastewater Facility, Castle considered wastewater capacity demand for the facility through the year 2020, rather than over a 20- year period. This is because buildout of the properties on Stock Island that will contribute flow to the facility is reasonably projected to occur between 2018 and 2020. After buildout, there will be no additional properties being developed to contribute additional wastewater flows to the Expanded Wastewater Facility. The credible, persuasive evidence establishes that the proposed design capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62-600.200(19) and other pertinent provisions in chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence also establishes that the proposed permitted capacity of .849 MGD AADF for the Expanded Wastewater Facility is appropriate under rule 62- 600.200(62) and other pertinent provisions of chapter 62-600 and conforms to sound engineering principles applicable to the Expanded Wastewater Facility. The credible, persuasive evidence further establishes that the Project, when properly constructed, operated, and maintained, will comply with all applicable statutes and rules, including the requirement that the effluent meet the AWT standards as of January 1, 2016. The credible, persuasive evidence also establishes that the underground injection wells, as designed, conform to modern engineering principles applicable to the disposal of pollutants as proposed in the permit application; and that there is reasonable assurance that the wells, when properly constructed, maintained, and operated, will discharge effluent in compliance with all pertinent statutes and rules, including the requirement that the effluent discharged down the injection wells meet AWT standards as of January 1, 2016. DEP Review and Proposed Issuance of the Permit at Issue The wastewater treatment facility and underground injection well applications for the Project were submitted to DEP on April 15, 2014. During DEP's review of the applications for the Project, the question arose whether the 1.273 MGD peak hourly flow stated in the permit application would trigger the so-called "deep well" requirement in section 403.086(10)(e)2. that the underground injection wells be cased to a minimum depth of 2,000 feet. DEP ultimately concluded that the term "design capacity," as used in the statute, referred to an average daily flow rate14/ over a specified period of time——here, a year——for the Expanded Wastewater Facility, rather than the transient peak hourly flow for the facility. Thus, the Expanded Wastewater Facility does not have a design capacity exceeding 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Expanded Wastewater Facility. DEP permit review staff issued one RAI, and KWRU timely provided the requested information. Upon receipt and review of KWRU's response to the RAI, DEP deemed the application for the Permit at Issue complete. DEP staff reviewed the permit applications for compliance with applicable statutory and rule requirements and standards. DEP's review does not entail re-designing or re- engineering the project or questioning the design engineer's reasonable exercise of judgment on design matters, as long as the project is accurately designed based on sound engineering principles and will operate in accordance with the applicable permitting requirements and standards. Thus, as a matter of practice, DEP relies, to a large extent, on the design engineer's certification that the system is accurately designed according to sound engineering principles——as is appropriate and authorized pursuant to the certification provisions on the application forms, rule 62-4.050(3), and chapter 471 and Florida Board of Engineering rules.15/ Gary Maier, P.E., professional engineer supervisor III and supervisor of DEP's domestic wastewater facility permit review staff, also reviewed the applications, the Intent to Issue, and the draft Permit at Issue to ensure that the Project complied with all applicable rules and standards and that KWRU had provided reasonable assurances such that the Project should be approved. Ultimately, DEP determined that KWRU provided reasonable assurances that the relevant permit applications met the applicable statutory and rule requirements and standards. Accordingly, DEP issued a Notice of Intent to issue the Permit at Issue. Establishment of Prima Facie Entitlement to Permit at Issue The relevant portions of the permit file, including the permit applications, supporting information, and Notice of Intent to Issue for the Permit at Issue, were admitted into evidence at the final hearing. With the admission of these documents into evidence, KWRU established its prima facie case demonstrating entitlement to the Permit at Issue. See § 120.569(2)(p), Fla. Stat. Challenge to the Permit at Issue Once KWRU demonstrated prima facie entitlement to the Permit at Issue, the burden shifted to Petitioners to present evidence proving their case in opposition to the Permit at Issue. See id. To prevail in this proceeding, Petitioners bear the ultimate burden of persuasion to prove their case by a preponderance of the competent substantial evidence. Petitioners have raised numerous grounds in the Second Amended Verified Petition for Formal Administrative Hearing16/ that they contend mandate denial of the Permit at Issue. Each of these grounds is addressed below. Alleged Permit Application Deficiencies Petitioners contend that the Permit at Issue should be denied due to alleged deficiencies in the applications submitted for the Project. Capacity Analysis Report Petitioners allege that, under rule 62-600.405, KWRU was required to submit a Capacity Analysis Report ("CAR") as part of its application for the Permit at Issue and that its failure to do so renders the applications incomplete, thus requiring denial of the Permit at Issue. The purpose of a CAR is to analyze capacity at an existing wastewater facility and to apprise DEP when it becomes evident that expansion of the wastewater facility may be needed. Specifically, the CAR is performed and submitted on a periodic basis, or when certain contingencies occur, to apprise DEP of the actual flows through the facility. If the actual flows are approaching the facility's permitted capacity, the CAR serves to notify DEP that expansion of the facility may be warranted. Thus, the CAR helps ensure that the permittee recognizes the need for, and properly plans for, future expansion of the facility. In support of their contention, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who has experience in the planning and design of wastewater treatment facilities in Florida, including the Florida Keys. Lynch testified that the most recent three-month average daily flows reported to the DEP by KWRU repeatedly exceeded 50 percent of the permitted capacity of the Existing Wastewater Facility, thereby triggering the requirement in rule 62-600.40517/ that a CAR be submitted. KWRU previously submitted an initial CAR when the Existing Wastewater Facility historically exceeded 50 percent of its permitted capacity. Thereafter, KWRU submitted an updated CAR in April 2012, as part of the renewal application for the Existing Permit that KWRU filed in October 2011. The April 2012 CAR indicated that permitted flows would not be exceeded for ten years. Thus, under rule 62-600.405(5), a subsequent updated CAR would be due at five year intervals or when the applicant applied for an operation permit or renewal of an operation permit, whichever occurred first.18/ The persuasive evidence establishes that during the period between issuance of the Existing Permit in February 2012 and submittal of the applications for the Permit at Issue in 2014, the three-month average daily flows for the Existing Facility had not exceeded 50 percent of the treatment plant's capacity and the five-year interval CAR submittal interval (which would have expired in 2017) had not yet expired, so an updated CAR was neither required nor submitted. When development on Stock Island resumed in the 2012 through 2014 timeframe following an economic recession, it became apparent from actual flow data that the Existing Wastewater Facility would need to be expanded to accommodate the wastewater flow from new development, as well as to accommodate wastewater flow from existing development being required by law to connect to a central wastewater system. Accordingly, in April 2014, KWRU submitted the applications for the Permit at Issue. As part of KWRU's applications, the design and permitted capacity of the Existing Wastewater Facility were analyzed, and future wastewater flows for the facility were projected, taking into account all relevant factors, including projected development over an appropriate planning period, new connections from existing development, and the lack of seasonal variation in historic flows. Based on this information, the proposed design and permitted capacities for the Expanded Wastewater Facility were determined. This information is precisely that which would have been required in an updated CAR. Because all pertinent information necessary to determine the design and permitted capacities for the Expanded Wastewater Facility was submitted as part of the applications for the Permit at Issue, a separate CAR was not required and, indeed, would have been redundant and pointless. It should be noted that the Permit at Issue specifically requires submittal of a CAR upon renewal, which is five years from the date of issuance. Further, the Expanded Wastewater Facility is subject to chapter 62-600, including rule 62-600.405, so KWRU would be required to submit a CAR if circumstances specified in the rule were to occur.19/ Thus, Petitioners failed to demonstrate, by a preponderance of the competent substantial evidence, that a CAR was required to be submitted as part of applications for the Permit at Issue. Accordingly, the absence of a CAR as part of the applications is not a basis for denying the Permit at Issue. Deep Injection Well Requirement Petitioners contend that the design capacity for KWRU's wells exceeds 1 MGD, so KWRU was required under section 403.086(10)(e)2. to apply for approval to install deep injection wells——i.e., wells that are cased to a minimum depth of 2,000 feet. Petitioners further contend that KWRU's failure to include an application for deep injection wells in its applications thus mandates denial of the Permit at Issue. Under section 403.086(10)(e)1., injection wells serving wastewater facilities that have a design capacity of less than 1 MGD are required to be at least 90 feet deep and cased to a minimum depth of 60 feet. Under section 403.086(1)(e)2., injection wells serving wastewater facilities having a design capacity equal to or greater than 1 MGD must be cased to a minimum depth of 2,000 feet or such greater depth as may be required by DEP rule. As previously discussed, rule 62-600.200(19) defines "design capacity" as "the average daily flow projected for the design year which serves as the basis for the sizing and design of the wastewater facilities." The rule states that the design capacity is established by the permit applicant, and that the timeframe associated with the design capacity——such as annual average daily flow, maximum monthly average daily flow, or three- month average daily flow——also is specified by the applicant. Additionally, rule 62-600.400(3)(a), which is part of DEP's Design Requirements rule for domestic wastewater facilities, reiterates that the applicant establishes both the design capacity and the timeframe used to define its selected design capacity, with the caveat that the timeframe selected must reflect seasonal variations in flow, if any. As discussed above, the credible, persuasive evidence establishes that KWRU's selected design capacity and timeframe ——here, .849 MGD AADF——accurately and appropriately addresses the projected wastewater flows that will be treated by the Expanded Wastewater Facility. As Castle credibly testified, historical flows to the Existing Wastewater Facility do not indicate substantial seasonal residential flow, consistent with the workforce population residing year-round on Stock Island. Moreover, to the extent there may be some seasonal flow variation associated with projected hotel and commercial development, Castle took that into account in determining the design capacity for the Expanded Wastewater Facility. For these reasons, Castle's selection of AADF as the design capacity metric is appropriate, conforms to sound engineering principles, and complies with applicable DEP rules. Further, as previously discussed, the 1.273 MGD peak hourly flow is exactly that——the peak or maximum flow expressed on an hourly basis——that can be processed by the Expanded Wastewater Facility. It does not constitute the design capacity of the Expanded Wastewater Facility, which, by definition, is the average flow over a specified period of time. The persuasive evidence in the record shows that the proposed design capacity of the Expanded Wastewater Facility is .849 MGD AADF, and this design capacity is appropriate and based on sound engineering principles. As such, the design capacity of the facility is less than 1 MGD, so the deep well requirement in section 403.086(10)(e)2. does not apply to the Project. Thus, Petitioners failed to demonstrate, by a preponderance of the evidence, that the deep well requirement in section 403.086(10)(e)2. applies to the Project. Accordingly, they did not establish that the Permit at Issue should be denied on the basis that KWRU did not apply for approval of deep injection wells as part of the applications for the Project. Identity of Permittee The Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, which is not an existing entity registered to do business in Florida or in any other state. Petitioners contend, and KWRU and DEP do not dispute, that a permit issued to an entity that does not legally exist cannot legally authorize any activities. Accordingly, to the extent the Permit at Issue is proposed to be issued to Key West Resort Utilities Corporation, Petitioners contend that this constitutes a basis for denying the Permit at Issue. At the hearing, DEP and KWRU presented credible evidence showing that the correct permittee is KW Resort Utilities Corp., not Key West Resort Utilities Corporation as was stated on the proposed Permit at Issue. Further, the permit applications correctly identify KWRU as the applicant for the Permit at Issue. Thus, identification of Key West Resort Utilities Corporation as the permittee on the proposed Permit at Issue was a typographical error, and the evidence establishes that this error will be corrected when the Permit at Issue is issued. If this typographical error is corrected, then the Permit at Issue should not be denied on this basis. Alleged Project Design and Engineering Deficiencies Petitioners allege that KWRU failed to provide reasonable assurance, based on a preliminary design report, plans, test results, installation of pollution control equipment, or other information, that the construction, modification, or operation of the Expanded Wastewater Facility will not discharge or cause pollution in contravention of chapter 403 and applicable DEP rules. Petitioners further allege that KWRU has undersized the design capacity of the Expanded Wastewater Facility and that the appropriate design capacity is greater than 1 MGD, thus triggering the deep well requirement in section 403.086(10)(e)2. Projected Flows to Expanded Wastewater Facility In support of their position, Petitioners presented the testimony of William Lynch, a Florida-licensed P.E., who testified that the future wastewater flows to the Expanded Wastewater Facility projected by KWRU in its applications are incorrect because they do not accurately address planned development in KWRU's service area, as required by the Ten States Standards. Lynch took the position that pursuant to the Ten States Standards, the appropriate planning horizon for the Project is at least ten years, which would require KWRU to project wastewater flow to the Expanded Wastewater Facility through approximately 2025, rather than through 2020, as projected in the applications for the Project. However, the persuasive evidence shows that KWRU utilized an appropriate planning horizon in projecting future wastewater flows to the Expanded Wastewater Facility. KWRU's facility design engineer, Castle testified, persuasively, that although the graphic submitted in the application shows the projected wastewater flows only through the year 2020, the planning horizon he used actually was infinite. This is because the projected buildout of the service area20/ to maximum wastewater flow is anticipated to occur between 2018 and 2020, and after that point, wastewater flows to the facility would remain constant. Thus, it was pointless to depict projected flows out to the year 2025——particularly since the narrative in the application describing the Project makes clear that buildout of KWRU's service area is anticipated to occur by 2020. Because the wastewater flows projected for the year 2020 accurately represent the maximum flows that the Expanded Wastewater Facility can process, the projected planning horizon to the year 2020 is appropriate for the facility, complies with the Ten States Standards, and complies with DEP rules. Lynch also asserted that the projected wastewater flows to the Expanded Wastewater Facility from development identified in the application do not accurately apply the standards in DOH Table I and that this inaccuracy further contributed to underestimation of the design capacity of the Expanded Wastewater Facility. Lynch arrived at this position by applying Table I to all identified future development——both residential and nonresidential——and considering an additional development (Key West Harbor Yacht Club) not listed in the applications. He projected that the future wastewater flow from these developments would be approximately 146,110 gallons per day——approximately 46,000 gallons per day higher than the 100,000 gallons per day that Lynch claimed KWRU projected for the planned developments on Stock Island. Based on the addition of 46,000 gallons to KWRU's proposed design capacity of .849 MGD, Lynch opined that .895 MGD is the design capacity that should have been proposed for the Expanded Wastewater Facility. However, the credible, persuasive evidence establishes that, in determining the design capacity of .849 MGD for the Expanded Wastewater Facility, Castle accurately projected the wastewater flow quantities from future development on Stock Island. Castle described in detail the process he undertook to determine the projected wastewater flows from the various land uses and locations on Stock Island through projected buildout between 2018 and 2020. Specifically, he identified planned nonresidential development on Stock Island expected to begin producing wastewater flows in 2014 and applied the DOH Table I standards to determine the projected flows for each development. To determine projected wastewater flow from future residential development on Stock Island, Castle identified approximately 40 acres of scarified or under-utilized property in KWRU's service area and applied a density of 12 equivalent dwelling units ("EDU") per acre,21/ with 167 gallons per day of wastewater flow attributable to each EDU, using actual historic wastewater flow data from the Master Plan. Additionally, for each scarified or under-utilized property having water frontage, he projected one boat slip per 35 feet of frontage and applied a 75-gallon-per-day flow for each boat slip using DOH Table I recreational vehicle flows. For years 2016 through 2019, Castle projected incremental increases in wastewater flows per year22/ to account for potential development of other currently occupied properties. The aggregate of all projected flows from the identified developments, the 40 acres and boat slips, and the incremental increases per year through buildout yielded a projected wastewater flow of .74 MGD to the Expanded Wastewater Facility by years 2018 through 2020, which represents buildout flow to the facility. Castle then added a "safety factor" of 15 percent to the projected .74 MGD wastewater flow to accommodate currently unknown future redevelopment of existing occupied properties, to reach the .849 MGD design capacity. The 46,000-gallon discrepancy between Lynch's .895 MGD design capacity calculation and Castle's .849 MGD design capacity calculation is attributable to four basic differences in how they each determined design capacity. First, Lynch used more recent development agreement and development order information that more precisely identified and quantified specific land uses than the information that KWRU had available to it at the time it prepared and submitted its application. However, the evidence did not establish that the flow information on which Lynch relied and that on which Castle relied were so appreciably different as to significantly affect the projected design capacity for the Expanded Wastewater Facility. Second, Lynch applied DOH Table I to project future wastewater flows from all future planned development on Stock Island, both residential and nonresidential, whereas Castle applied DOH Table I only to determine nonresidential development future flows, and used actual historic flow data from the Master Plan to determine residential development future flows. Castle's residential flow calculation using historical actual flow data conforms to the recommendation in section 11.242(a) of the Ten States Standards that actual flow data be used, to the extent possible, to predict future flows; thus, Castle's calculation likely more precisely projects future flow attributable to residential development on Stock Island.23/ Third, Lynch took into account the Key West Harbor Yacht Club flow into the Expanded Wastewater Facility, whereas KWRU did not consider this flow in projecting future flows to the facility. This omission constituted an oversight on KWRU's part, and the flow from this development should have been included in the wastewater flow projection for the facility. However, the persuasive evidence did not show that this omission constituted a significant error in KWRU's .849 MGD AADF design capacity projection.24/ Fourth, Lynch apparently misinterpreted a statement in the application referencing "such redevelopment" as referring to the known planned developments on Stock Island, which were specifically identified by name in the application, and, thus, interpreted the reference to 100,000 gallons as being the flow KWRU projected for those known, named developments. However, the persuasive evidence established that the 100,000 gallons that KWRU assigned to "such redevelopment" in its application referred not to the known, named developments identified in the application, but instead to presently unknown future development on Stock Island, which Castle took into account by including the 15 percent "safety factor" in determining design capacity. Pursuant to the foregoing, it is determined that KWRU demonstrated, by credible, persuasive evidence, that it accurately estimated future wastewater flows from projected development on Stock Island to determine an appropriate design capacity of .849 MGD AADF for the Expanded Wastewater Facility. Design Capacity Timeframe Petitioners allege that the timeframe associated with the design capacity specified by KWRU——the annual average daily flow, or AADF——is not appropriate for the Expanded Wastewater Facility because it fails to reflect seasonal flows to the facility as required by rules 62-600.200(16) and 62-600.400(3)(a). Petitioners assert that the design capacity for the facility should instead be expressed in maximum monthly average daily flow ("MMADF") to account for seasonal flows. In support, Petitioners presented the testimony of Lynch, who opined that the KWRU service area experiences seasonal flows driven by the influx of tourists to Stock Island during tourist season. Lynch based this opinion on the wastewater flow data for the Existing Wastewater Facility for the year 2014, and his calculations showing that the three-month average daily flow ("ADF") for October through December 2014 was 11 percent higher than the AADF and that the MMADF for that period was 16 percent higher than the AADF. Lynch considered this variation substantial enough to indicate seasonality, so that MMADF is the appropriate design capacity timeframe for the Expanded Wastewater Facility. Using MMADF as the design capacity timeframe, Lynch opined that the design capacity of the Expanded Wastewater Facility should be 1.04 MGD MMADF——which would trigger the deep well requirement in section 403.086(10)(e)2. Castle chose AADF as the timeframe for the Expanded Wastewater Facility design capacity because historical flow records over a period of years do not show significant seasonal variations in flow for Stock Island. Castle testified, credibly and persuasively, that while the historical flow data shows a consistent slight increase in flows from August to December, in his view, the variation is not significant enough to constitute a seasonal flow. This is consistent with the evidence establishing that Stock Island is a "bedroom community" having a mostly year- round workforce population. Lynch formulated his opinion regarding appropriate design capacity using 2014 flow data for the entire year, which was not available at the time KWRU filed its permit applications for the Project in April 2014. Although Lynch relied on more recent data, his opinion was based only on one year of data. By contrast, Castle selected AADF as the design capacity metric based on the previous five years of flow data, which showed variations in flow ranging between two percent and 12 percent on a three-month average daily flow basis. Castle credibly testified that these variations were not significant enough to indicate seasonal flows and did not closely correlate with tourist season in the Keys. Additionally, in calculating his flow projections for the Expanded Wastewater Facility, Castle assumed 100 percent year-round occupancy for residential units, so that his projected design capacity of .849 MGD necessarily took into account potential seasonal flows. Thus, to the extent there are seasonal flows, the facility simply will receive flows below the design capacity during off-season. The undersigned finds Castle's use of long-term historical flow data more reliable than Lynch's use of only one year of data in assessing whether there is flow seasonality.25/ DEP's wastewater permitting supervisor, Gary Maier, concurred that the variations in wastewater flow do not reflect a significant seasonal variation that would require the use of a smaller averaging period than AADF. Maier also observed that none of the wastewater facilities in the Florida Keys having a design capacity greater than 100,000 gallons per day has a design capacity based on MMADF. This evidences that Castle's selection of AADF as the timeframe metric conforms to the design capacity standard used for facilities of comparable size in the Florida Keys. Based on the foregoing, it is determined that KWRU's selection of AADF as the design capacity timeframe metric for the Expanded Wastewater Facility is appropriate and complies with DEP rules. Petitioners failed to demonstrate that KWRU's selection of AADF as the design capacity timeframe metric violates any applicable laws or rules. Accordingly, Petitioners did not demonstrate that the Permit at Issue should be denied on this basis. Ability of Expanded Wastewater Facility to Reliably Meet AWT Petitioners further allege that KWRU failed to provide a complete application demonstrating that the treatment processes for the Expanded Wastewater Facility will efficiently and reliably meet effluent limitations for design year flow. As discussed above, the evidence establishes that KWRU provided all of the information required for the applications for the Permit at Issue, so DEP correctly determined that the applications were complete before commencing its substantive review of the applications. Also as discussed above, Lynch opined that the proposed design capacity was undersized for the flows he projected for the Expanded Wastewater Facility. However, the persuasive evidence shows that KWRU's proposed design capacity of .849 MGD AADF is appropriate, conforms to sound engineering principles, and meets applicable statutory and rule requirements. In order to ensure that a wastewater facility functions effectively and reliably, it is important that the facility not be substantially oversized for the amount of wastewater flowing into the facility. In an over-sized facility, inconsistent timing of wastewater flow, lack of appropriate chemical environment for waste breakdown, and inadequate food supply for the microorganisms may lead to ineffective performance of the facility. A consequence of these imbalances is that undesirable microbes may populate the facility, causing incomplete solids settlement, overflow of solids downstream to the filters, and operational problems resulting in failure of the facility to treat wastewater to AWT standards. KWRU provided reasonable assurance, based on the proposed .849 MGD AADF design capacity and the other engineering features of the Project, that the Expanded Wastewater Facility is appropriately sized and will effectively and reliably treat the wastewater to AWT standards. Thus, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it is undersized and will not reliably meet AWT standards. Key West Golf Club Reuse System Issues Petitioners contend that as part of the applications for the Project, KWRU proposes to send 1 MGD of reclaimed water to the golf course. Petitioners claim that, given an irrigated area of 100.27 acres and an average irrigation rate of .73 inches per acre per day, only 300,000 gallons of reclaimed water per day is accounted for by reuse as irrigation. On that basis, Petitioners allege that KWRU has not demonstrated that the 700,000 gallon-per-day balance of reclaimed water sent to the golf course will be reused for a beneficial purpose rather than being disposed. This contention is based on a misunderstanding of the structure and function of the reuse system. The 1 MGD flow stated in the permit application is the design capacity of the reuse system, which is not being changed by the Permit at Issue. Importantly, this figure does not quantify the amount of water that is or actually will be sent to the golf course or applied as irrigation to the golf course irrigated area in a single day. Rather, it represents the flow capacity to which the reuse system is designed.26/ The applications for the Permit at Issue do not propose any changes to the quantity of reclaimed water being reused, which is governed by the irrigated acreage at the golf course and the irrigation rate. These parameters are not being changed. As previously discussed, KWRU sends reclaimed water to the golf course only on an as-needed basis, where it is stored in the ponds until needed for irrigation. If the course does not need reclaimed water sent to the ponds, KWRU does not send the water. Thus, the golf course controls the amount of reclaimed water that is sent to the storage ponds. Although the permitted capacity of the reuse system is being expanded from .499 MGD AADF to .849 MGD AADF, the actual amount of reclaimed water sent to the golf course by KWRU is not anticipated to change because, as discussed above, the amount being reused for irrigation is not being changed. Since the amount of reclaimed water being reused for irrigation is not increasing, the reuse system is not being expanded. Thus, the evidence does not show that 700,000 gallons per day of reclaimed water will be sent to the golf course for disposal, inconsistent with rule 62-610.810(2), rather than being reused for a beneficial purpose.27/ Petitioners also assert that the increased permitted capacity of the reuse system constitutes a "new or expanded reuse or land application project," so that an engineering report and reuse feasibility study were required as part of the applications for the Permit at Issue, pursuant to rule 62-610.310(1). KWRU previously provided these documents when it originally applied for authorization of the reuse system. The credible, persuasive evidence shows that increasing the permitted capacity of the reuse system does not trigger the requirement to submit another engineering report or reuse feasibility study. This is because no changes to the structural components or operation of the reuse system facilities are proposed. As Castle credibly explained, and Maier confirmed, the relevant question in determining whether an engineering report is required is whether the land application rate and/or the irrigated acreage is being changed, which would increase the amount of reclaimed water being reused and, thus, would require expansion of the reuse system. As discussed, neither the irrigated area nor the irrigation application rate is proposed to change under the Project. Thus, neither an engineering report nor a reuse feasibility study are required as part of the applications for the Permit at Issue. Therefore, Petitioners failed to demonstrate that the Permit at Issue should be denied on the basis that KWRU did not submit a reuse feasibility or engineering report as part of its applications for the Permit at Issue. Alleged Surface Water Quality Violations by Injection Wells Petitioners allege that disposing of the effluent from the Expanded Wastewater Facility through the injection wells will cause or contribute to violations of surface water quality standards codified in chapter 62-302. Petitioners further allege that, as a consequence, the discharge will violate antidegradation requirements in rules 62- 4.242, 62-302.300, and 62-302.700(1), and that the wells do not comply with the underground injection control rule requirement in rule 62-528.630(7), specific to Monroe County, that the wells not cause or contribute to surface water quality violations. Regulatory Status of Surface Waters in Stock Island Vicinity A significant portion of the surface waters in the Florida Keys, including those surrounding Stock Island and Key West, are classified as Class III surface waters pursuant to rule 62-302.400. Water quality criteria adopted by rule for Class III surface waters are established to protect fish consumption, recreation, and the propagation of a healthy, well- balanced population of fish and wildlife. As previously noted, certain portions of the Florida Keys, including the surface waters surrounding Stock Island and Key West, are designated an OFW. Fla. Admin. Code R. 62- 302.700(9)(i)13. No degradation of surface water quality, other than that allowed under rules 62-4.242(2) and (3), is permitted in an OFW. See Fla. Admin. Code R. 62-302.700(1). The narrative nutrient criterion codified at rule 62- 302.530(47)(a) states: "[t]he discharge of nutrients shall be limited as needed to prevent violations of other standards contained in this chapter. Man-induced nutrient enrichment (total nitrogen or total phosphorus) shall be considered degradation in relation to the provisions of Rules 62-302.300, 62-302.700, and 62-4.242, F.A.C." The narrative nutrient criterion codified at rule 62-302.530(47)(b) states: "[i]n no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora or fauna." These criteria apply in Class III surface waters, including the surface waters in and around the Florida Keys. See Fla. Admin. Code R. 62-302.531(1). Rule 62-302.531(2) requires DEP to numerically interpret the narrative nutrient criterion for nutrients (nitrogen and phosphorus) and for nutrient response (chlorophyll- a). Where a site-specific numeric interpretation of rule 62- 302.530(47)(b) has been established, that numeric interpretation constitutes the primary standard applicable to that site. Fla. Admin. Code R. 62-302.531(2)(a). A range of natural factors affect nutrient loading for a given waterbody. Therefore, site- specific numeric interpretations of the narrative nutrient criteria generally are deemed more reliable than broadly applicable, non-site specific criteria. Estuary-specific numeric interpretations of the narrative nutrient criterion in rule 62-302.530(47)(b), consisting of nutrient values for nitrogen and phosphorus and a nutrient response value for chlorophyll-a have been adopted for many areas in the state of Florida, including the Florida Keys. These numeric interpretations——commonly referred to as "numeric nutrient criteria," or "NNCs"——are open water, area-wide averages. See Fla. Admin. Code R. 62-302.532(1). For the Florida Keys, seven Florida Keys Marine Nutrient Regions ("FKMNRs") have been identified and geographically delineated on a series of maps adopted by rule. For each of these FKMNRs, NNCs have been adopted for nitrogen, phosphorus, and chlorophyll-a. Fla. Admin. Code R. 62- 302.532(1)(g). The NNCs for the Lower Keys Region and the Back Bay Region are germane to this proceeding. For the Bay Back Region, the NNCs are .009 mg/L for phosphorus, .25 mg/L for nitrogen, and .3 µg/L for chlorophyll-a. For the Lower Keys Region, the NNCs are .008 mg/L for phosphorus, 0.21 mg/L for nitrogen, and 0.3 µg/L for chlorophyll-a. These NNCs are expressed as annual geometric means that are not to be exceeded more than once in a three-year period.28/ The area of water extending from the shoreline out to 500 meters offshore in the Florida Keys is referred to as the "Halo Zone." DEP has adopted by rule a map delineating the Halo Zone. The NNCs applicable to surface waters in each of the FKMNRs currently do not apply to the surface waters in the Halo Zone. Thus, only the narrative nutrient criteria codified at rules 62-302.530(47)(a) and (b) apply to surface waters in the Halo Zone at this time.29/ Additionally, pursuant to chapter 62-303, the Impaired Waters Rule, DEP has identified and delineated spatial assessment areas in waterbodies based on homogeneity for multiple water quality parameters.30/ These assessment areas, called "Waterbody IDs" or "WBIDs," are delineated for purposes of assessing, through water quality sampling, whether the surface waters within the WBID are impaired——that is, whether they fail to meet one or more of the applicable water quality standards due to pollutants.31/ DEP has delineated several WBIDs, identified by number, in the Halo Zone surrounding Key West and Stock Island. The Halo Zone surrounding Stock Island comprises WBID 6014B, and the Halo Zone surrounding Key West consists of WBIDs 6014A and 8073A through 8073H.32/ The Back Bay Region, which is located north of Stock Island and outside of the Halo Zone, is designated as WBID 8074. The Lower Keys Region consists of WBID 8073, which is located northwest of Stock Island and surrounding Key West outside of the Halo Zone, and WBID 8079, which is located south of Stock Island outside of the Halo Zone. Water quality monitoring, consisting of sampling for a range of parameters, is conducted at monitoring stations within each of these WBIDs. At least one monitoring station is located within each WBID. This water quality sampling is conducted according to DEP's applicable standard operating procedures. The monitoring stations have collected nutrient and nutrient response data spanning a period of years. The data collected in 1995 through 2013 are pertinent to this proceeding.33/ The Keys RAP, which was prepared in 2008 and updated in 2011, prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. As authorized under rule 62-303.600, DEP determined that the Keys RAP provides reasonable assurance that the restoration goals for the surface waters in the Florida Keys will be achieved by ensuring that all management activities specified in the Keys RAP would be implemented for specified waterbodies by 2015. Accordingly, in February 2012, DEP approved and adopted the Keys RAP by Secretarial Order. Current and historic water quality data show that all WBIDs in the Keys, including those in the Lower Keys Region, Back Bay Region, and Halo Zone for the surface waters surrounding Key West and Stock Island, are not impaired for nutrients——that is, that the NNCs and narrative nutrient criteria, as applicable, are being met. Pursuant to sections 403.061 and 403.067, Florida Statutes, and rule 62-303.600, DEP has classified the Florida Keys WBIDs as Category 2 under the waterbody use attainment classification scheme34/ for nutrients and nutrient response. The classification of the Keys WBIDs in this category means that sufficient water quality data are available to determine that at least one designated use is attained. Thus, as authorized by section 403.067 and rule 62-303.600(2), DEP has placed the Keys WBIDs on the "Delist List."35/ This "de-listing" action recognizes that the Florida Keys WBIDs, including those in the Halo Zone, are not impaired for nutrients and chlorophyll-a. Subsurface Geology in Vicinity of Stock Island The parties agree that, as a general proposition, the ground water and surface waters are connected to each other in the Florida Keys. However, no evidence was presented showing a specific location or locations where ground water connects to surface waters. Although it generally is undisputed that, at some point, ground water connects to surface waters, the parties disagree regarding whether, where, and how long it may take for the injected effluent to reach surface waters. Petitioners contend that due to the local geology, the injected effluent from the Existing Wastewater Facility rapidly reaches surface waters in the vicinity of Stock Island and that the increased discharge through the new injection wells will exacerbate and cause or contribute to surface water quality violations in the immediate vicinity of Stock Island and offshore. In support of this position, Petitioners presented the testimony of Scott Zednek, a Florida-licensed P.G. Zednek opined that due to the absence of subsurface sediments that would prevent upward flow to surface waters, the buoyant freshwater effluent injected down the wells will rapidly vertically migrate through the highly transmissive Key Largo Limestone and Miami Limestone to reach surface waters. To develop his opinion, Zednek reviewed a Florida Geological Survey boring log ("FGS Log") approximately one-third mile from the Existing Wastewater Treatment Facility and a Universal Engineering Services geotechnical study boring log ("UES Log") performed on the KWRU site. The FGS Log was prepared specifically to analyze the subsurface geology. The UES Log was performed as part of a geotechnical study to analyze subsurface conditions onsite specifically for the purpose of determining the load-bearing capability of the KWRU site to support a concrete water tank. As such, the FGS Log provides a more precise view of the subsurface geology in the vicinity of the KWRU site.36/ Based on the UES Log, Zednek opined that there are no confining layers underlying the KWRU site. The UES Log for the site shows N-values, generated using an ASTM-designated process for determining the resistivity or strength of the subsurface, of between two and 43 for the first 60 feet of sediment below the surface. According to Zednek, an N-value of less than 50 indicates lack of a confining layer. Further, his review of the UES Log did not show the presence of Q-layers, which may function as semi-confining layers, or aquitards, that would substantially restrict the movement of fluid, including the injected effluent.37/ Based on the UES Log, Zednek opined that the limestone underlying the site is fractured, creating vertical pathways for the injected effluent to migrate upward to the surface. Zednek testified that the Key Largo Limestone, into which the effluent is injected, is very porous and highly transmissive, facilitating rapid migration once the effluent is injected. Based on his review of the FGS Log, Zednek testified that a Q-layer first appears at approximately 62 feet below the ground surface——below the depth of the injection wells' casing—— so it would not act as a confining layer for the injected effluent. Zednek further observed that this Q-layer is only 1.5 centimeters thick. In his experience, this thickness is not sufficient to create a confining or semi-confining layer. Zednek thus opined that the subsurface geology at the KWRU site will enable and facilitate vertical migration of the injected effluent to surface waters. Zednek also noted the proximity of the Safe Harbor channel cut. He opined that the injected effluent likely would horizontally migrate through the highly transmissive Key Largo Limestone,38/ then vertically migrate to surface waters through the "path of least resistance" at the Safe Harbor channel cut. As further support for his opinion, Zednek cited an interim report summarizing results of a subsurface dye tracer study performed for the Florida Keys Aqueduct Authority regional wastewater treatment facility. The study's purpose was to determine whether the subsurface geology at the Cudjoe Key location was sufficiently confining to prevent vertical migration of the injected effluent from shallow injection wells proposed at that facility. According to Zednek, the interim report showed that the subsurface at the injection site was not sufficiently confining to prevent the injected effluent from rapidly vertically migrating to surface waters. Petitioners also presented the testimony of John Paul, Ph.D., in support of their contention that the injected effluent from the Expanded Wastewater Facility would rapidly rise through the subsurface limestone up into surface waters. Dr. Paul testified regarding viral tracer studies he had conducted at Long Key, approximately 65 miles east-northeast of Stock Island, and at the Saddlebunch Keys, located approximately 20 miles east- northeast of Stock Island. In conducting these studies, Paul injected bacteriophage viruses into Class V wells and tracked their movement into surface waters. In the Long Key study, the injected viruses moved through the subsurface limestone to the south-southeast and appeared in surface waters in deep canals on the ocean side of U.S. 1 approximately 53 hours after injection. In the Saddlebunch Keys study, the viruses also appeared in surface waters some distance south-southeast of the location at which they were injected.39/ Paul acknowledged that when the viruses appeared in surface waters, they were detected at a concentration of one trillionth (.0000000000001 or 1 x 10-12) less than the concentration in which they had been injected, indicating significant dilution by ground water and/or surface waters. He also acknowledged that canals dredged to depths shallower than the injected depth may not facilitate rapid migration of the injected effluent to surface waters. In rebuttal, KWRU presented the testimony of Michael Alfieri, a Florida-licensed P.G. who specializes in hydrogeology. Alfieri examined the FGS Log and UES Log, and also reviewed the detailed lithology logs and photographs for the FGS Log. Based on his review of this information, Alfieri opined that the FGS Log indicates the presence of semi-confining layers that function as aquitards in the first 60 feet of subsurface sediment. Alfieri noted that the existence of an aquitard depends on the nature of the geologic materials present at that location, so that N-values do not perfectly correlate with the presence or absence of confining layers. Thus, a carbonate silt or clay having an N-value of only two may better function as an aquitard than a porous, transmissive limestone having an N-value of 50, and silts or clays having a thickness as little as one centimeter may function as an aquitard to significantly impede fluid flow.40/ Based on his review of the FGS Log and the detailed lithology log descriptions and photographs for the FGS Log, Alfieri observed four laminated calcrete zones, six Q-zones, and chalky limestone within the first 60 feet——all of which would function as aquitards to impede the vertical movement of the effluent.41/ Thus, according to Alfieri, the effluent is anticipated to migrate laterally from the injection wells below these confining layers before migrating through a vertical pathway to reach surface waters at an unknown location. To predict the likely migration pathway for the effluent, Alfieri conducted hydrological modeling using a simplistic SEAWAT computer model. He used horizontal and vertical transmissivity values for the subsurface strata derived from geological studies previously conducted in the Florida Keys. Although these studies indicate greater horizontal than vertical transmissivity, Alfieri assumed equal vertical and horizontal transmissivity for modeling purposes——necessarily yielding more conservative results than would be anticipated to occur in real life. Accordingly, the modeling results showed more rapid vertical migration than would be anticipated in real life when the Q-zones and calcrete layers depicted in the FGS Log are considered. Even with these conservative assumptions, the modeling results showed the injected effluent migrating horizontally at least a mile offshore42/ before migrating upward to surface waters. The persuasive evidence shows that the injected effluent will be confined to the subsurface and will travel laterally a substantial distance before rising to surface waters at some unknown location or locations offshore. Thus, the credible, persuasive evidence does not support the conclusion that the effluent will rapidly rise to the surface waters in the nearshore area in the vicinity of the KWRU site.43/ Narrative Nutrient Criteria Petitioners allege that the effluent injected down the wells into the ground water will reach surface waters, causing or contributing to a violation of the narrative nutrient criteria for surface waters codified in rules 62-302.530(47)(a) and (b).44/ In support, Petitioners presented the testimony of James Fourqurean, Ph.D., who has extensive experience in research on Florida Keys aquatic ecosystems in their healthy and imbalanced states. Dr. Fourqurean described these ecosystems in their healthy state and in their nutrient-enriched state. Florida Keys nearshore ecosystems normally are oligotrophic, which means they are nutrient-limited. Thus, they do not normally exhibit high chlorophyll-a levels and microalgae counts. When nutrient levels in the Florida Keys ecosystems increase——whether by increasing the concentration of nutrients in discharges or by increasing the volume of water containing nutrients——primary production, i.e., plant growth, increases. Seagrass communities are phosphorus-limited, so that when these communities are exposed to phosphorus-enriched water, the phosphorus is rapidly absorbed from the water column and is stored in the benthos.45/ This phosphorus capture initially leads to increased seagrass abundance, but as phosphorus enrichment continues, the community species composition rapidly shifts to favoring seaweed and microscopic algae, ultimately damaging or destroying the seagrass community. Coral reef communities similarly are nitrogen-limited. Thus, when coral reef communities are exposed to nitrogen- enriched water, they shift to algae-dominated communities——again, damaging or destroying the coral reef communities. Based on historical aerial photographs of the area surrounding Safe Harbor and his experience studying seagrasses in the Florida Keys, Fourqurean concluded that the natural seagrass populations in the entire Florida Keys National Marine Sanctuary area, which includes the Stock Island area, are experiencing ecological imbalance. On the basis of the water quality sampling he conducted in and around Safe Harbor, Fourqurean opined that the imbalance is the result of man-induced nutrient enrichment. However, he did not engage in field studies in and around Safe Harbor, so could not cite specific examples where seagrasses had been replaced by algal-dominated communities in that area. Fourqurean noted that human waste contains high concentrations of phosphorus and nitrogen. In his view, because the effluent from the Existing Wastewater Facility contains phosphorous, it necessarily constitutes a source of phosphorous in the surface waters in Safe Harbor, even though it is injected into ground water. However, he acknowledged the existence of numerous other sources of nitrogen and phosphorus in the Safe Harbor vicinity, including septic tanks, boat cleaning operations and pump outs, and storm water runoff. He further acknowledged that he did not know where or when effluent from the Existing Wastewater Facility (and, by extension, the Expanded Wastewater Facility) may reach surface waters. Fourqurean acknowledged that the Permit at Issue would authorize the injection of effluent treated to AWT standards into ground water, rather than directly to surface waters, and he further acknowledged that the total phosphorus and nitrogen loading from the Expanded Wastewater Facility would substantially decrease as a result of conversion to AWT, even though the volume of effluent discharged down the wells may as much as double. He remained concerned that the Expanded Wastewater Facility may contribute phosphorus——even in very small quantities——to surface waters, causing imbalance to seagrass communities. He also opined that when saline ground water and the fresher effluent mix, the resulting brackish solution would dissolve the calcium carbonate comprising the subsurface limestone, releasing stored phosphorus that would eventually reach surface waters and negatively affect nearshore seagrass communities, However, he acknowledged that depending on subsurface physical conditions and flow paths of the effluent, phosphorous, nitrogen, or both, may be completely removed prior to the effluent reaching surface waters. He further acknowledged that seagrass community health in the Florida Keys National Marine Sanctuary has improved in the last two years and that water quality also has improved, reversing a ten-year decline. This is consistent with replacement of onsite septic tanks by central wastewater treatment systems in the Florida Keys. On rebuttal, KWRU presented the testimony of William Precht, who has extensive experience with Florida Keys geology and aquatic communities. Precht confirmed the existence of numerous sources of significant nutrient enrichment in the Safe Harbor vicinity other than the Existing Wastewater Facility, and noted that these sources must be taken into account when analyzing nutrient enrichment in Safe Harbor. He testified that raw wastewater is particularly deleterious to benthic communities. Thus, connecting wastewater generators that currently use septic tanks to central wastewater treatment systems can significantly improve water quality. Precht observed that Fourqurean's single-day sampling in the Safe Harbor area provided information regarding variability in nutrient concentrations, but characterized Fourqurean's conclusion that the Existing Wastewater Facility was the source of the nutrients as "unscientific" because it was based on supposition rather than on testing. He opined that the limited data set gathered over a one-day period could not reliably identify the source of nutrient enrichment in Safe Harbor. Precht testified that flushing capability is a key influence on nutrient concentration in surface waters. The further from a natural marine environment that water quality testing is performed, the more likely water quality will be poor due to nutrient enrichment from land-based sources. Given the configuration of Safe Harbor, water quality would be poorest in the interior dead-end canals and would steadily improve as one moved into more open water and flushing increased, with the highest water quality in open waters outside the canal system. Precht opined that the presence of noxious benthic plant life in the Safe Harbor vicinity may be attributable the destruction of seagrass communities in the area by historical dredging, rather than due to nutrient enrichment. Based on the reduction in total nitrogen and total phosphorus loading as a result of implementing AWT, Precht opined that the proposed discharge will not negatively affect the biological communities in the Safe Harbor vicinity. He further opined that due to the rapid uptake of phosphorus in the marine environment and due to denitrification that occurs in ground water and in marine surface waters, there is little chance that any nutrient loading that may result from the injected effluent would cause damage to the coral reef environment. Also on rebuttal, Alfieri persuasively testified that although phosphate release does occur when freshwater is injected into limestone that formed in a saline environment, this process gradually occurs over "geologic time"——that is, over millions of years. Therefore, he did not anticipate a significant release of phosphate from the subsurface limestone as a result of the effluent discharge. Also, limestone rapidly absorbs phosphorous, so phosphorus in the injected effluent would be absorbed quickly by the subsurface limestone.46/ Further, in any event, the effluent will be diluted by at least seven orders of magnitude——that is, one hundred millionth (.00000001)——of the injected concentration by the ground water, and/or by surface waters (assuming the effluent eventually reaches surface waters). As discussed above, the Keys RAP was prepared in 2008 and updated in 2011. The Keys RAP prescribes specific management activities to be implemented to restore surface water quality in the Florida Keys, including eliminating cesspits and onsite septic tank systems and connecting wastewater generators to centralized wastewater systems that treat the wastewater to AWT standards. Pursuant to the Impaired Waters Rule and DEP's adoption of the Keys RAP, activities that are consistent with the Keys RAP are considered to provide reasonable assurance that the narrative nutrient criterion in rule 62-302.530(47)(b) will be met. As discussed above, the Project will expand a centralized wastewater treatment plant that will accept, and treat to AWT standards, wastewater generated by development on Stock Island——including development that currently relies on onsite septic tanks for wastewater disposal. The Project is consistent with the Keys RAP, so there is reasonable assurance that the Project will meet the narrative nutrient criterion in rule 62-302.530(47)(b). The persuasive evidence shows that the Project will not cause or contribute to alterations of nutrient concentrations in water bodies so as to cause an imbalance in natural populations of aquatic flora or fauna. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the narrative nutrient criterion in rule 62-302.530(47)(b). Further, for the reasons discussed below, it also is determined that the Project will not violate the narrative nutrient criterion codified at rule 62-302.530(47)(a). Numeric Nutrient Criteria Petitioners also allege that the effluent will cause or contribute to violation of the estuary-specific numeric interpretations of the narrative nutrient criteria for the Back Bay nutrient region, codified at rule 62-302.532(1)(g)1., and the Lower Keys nutrient region, codified at rule 62-302.532(1)(g)3. In support, Petitioners cite the results of surface water sampling performed by Fourqurean in the Safe Harbor area showing high levels of nitrogen, phosphorus, and chlorophyll-a. Petitioners contend that these high nutrient levels evidence that the existing injection wells already are causing or contributing to surface water quality violations in the waters surrounding Stock Island, and that the increased effluent discharge from the proposed new injection wells will exacerbate this situation, further causing or contributing to violations of surface water quality standards. In preparing his opinion regarding the effect of the proposed injection wells on surface water quality, Fourqurean sampled surface water quality on one day at nine stations located in the vicinity of Stock Island, ranging from shallow waters inside the Safe Harbor basin to deeper waters offshore. Samples were collected at the surface and at a depth of one meter below the surface following the standard operating procedures for water quality sampling established by the Florida Keys Water Quality Protection Program. Fourqurean testified that the samples collected at the stations inside the Safe Harbor basin and near the shore of Stock Island showed very high levels of chlorophyll-a, evidencing that these areas are dominated by microalgae and, thus, are eutrophic. Additionally, the samples collected inside the Safe Harbor basin exhibited very high phosphorus concentrations—— almost three times greater than the estuary-specific numeric nutrient criterion for phosphorus. Phosphorus concentrations correspondingly decreased as samples were collected outside of the basin and offshore. Nitrogen concentrations followed a similar pattern in the sampling that Fourqurean conducted inside and outside of the Safe Harbor basin. According to Fourqurean, the high nutrient concentrations in the samples taken in Safe Harbor, when compared to the lower concentrations in samples taken outside of Safe Harbor, evidence the existence of a large source of phosphorous and nitrogen in Safe Harbor——in his view, the Existing Wastewater Facility. However, Fourqurean acknowledged that there are many potential nutrient enrichment sources on Stock Island, including fishing operations, boat sewage pump-outs, and direct discharges of storm water to surface waters. He further acknowledged that the specific source of phosphorus and nitrogen in the surface waters surrounding Stock Island cannot be identified. He did not opine as to the relative amounts of nutrients in surface waters that he believes are being contributed by the Existing Wastewater Facility or that will be contributed by the Expanded Wastewater Facility, as compared to other nutrient sources in the Safe Harbor area. He also acknowledged that a scientifically-valid water quality study would require more than a single day of sampling.47/ Kenneth Weaver, environmental administrator for DEP's Standards Development Section,48/ credibly and persuasively testified, and the water quality data for nutrients and chlorophyll-a collected in the WBIDs surrounding Key West and Stock Island show, that the surface waters in these WBIDs meet the applicable NNCs.49/ Historical water quality data also show that since 2008, the surface waters in these WBIDs continuously have met the baseline concentrations on which the NNCs were established and adopted. Even with the increased volume of wastewater treated by the Expanded Wastewater Facility, implementation of the AWT standard by the facility's wastewater treatment trains will substantially reduce the amount of total nitrogen and total phosphorus discharged into ground water through the injection wells. Specifically, for total nitrogen, the concentration will be reduced from 13.92 mg/L to 2.25 mg/L, and the total amount of nitrogen loading will be reduced from 58 to 15.9 pounds per day, representing a total net reduction of 72.4 percent in the discharge of total nitrogen. For total phosphorus, the concentration will be reduced from 3.47 mg/L to .75 mg/L, and the total amount of phosphorus loading will be reduced from 14.4 to 5.3 pounds per day, representing a total net reduction of 63.3 percent in the discharge of total phosphorus.50/ Weaver addressed the effects of these projected nutrient discharge concentrations on the surface waters in WBIDs 8074 and 8079, which comprise the portions of the Lower Keys Region and Back Bay Region closest to the KWRU site. He opined that, because these regions are currently meeting the applicable NNCs for nitrogen and phosphorus, and because KWRU's implementation of AWT will result in substantial reduction of total nitrogen and phosphorus loading, the NNCs will continue to be met in these regions——even in a "worst-case" scenario that assumes all of the treated effluent from the Expanded Wastewater Facility is disposed of through the injection wells and reaches the surface. The persuasive evidence shows that the Project will not cause or contribute to violations of the applicable numeric nutrient criteria. Thus, Petitioners failed to show that the Project will cause or contribute to violation of the applicable numeric nutrient criteria in rule 62-302.532(1)(g)1. and 3. Surface Water "Free-From" Standards Petitioners allege that the effluent contains iron and copper above detection limits, as well as personal care products and pharmaceuticals, and that these constituents violate rules 62-302.500(1)(a)5. and 62-302.530(61). Rule 62- 302.500(1)(a)5. requires all surface waters of the state to be free from domestic, industrial, agricultural, or other man- induced non-thermal components of discharges which, alone or in combination with other components of discharges (whether thermal or non-thermal), are present in concentrations which are carcinogenic, mutagenic, or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species, unless specific standards for such components are established by rule. Rule 62-302.530(61) effectively requires surface waters to be free from substances in concentrations which injure, are chronically toxic to, or produce adverse physiological or behavioral response in humans, animals, or plants. These rules collectively comprise the "free-from" standards for surface waters. Petitioners presented no evidence to substantiate the allegation that the effluent from the Expanded Wastewater Facility will contain pharmaceuticals or personal care products. However, even assuming these constituents were present in the effluent, Petitioners did not present evidence showing that they are carcinogenic; mutagenic; or teratogenic to human beings or to significant, locally occurring wildlife or aquatic species; or that they are injurious or chronically toxic to, or produce adverse physiological or behavioral response, in humans, animals, or plants. Petitioners did not present evidence showing that the effluent contains copper and iron in quantities that violate any applicable surface water quality standards, including the surface water "free-from" standards. Paul testified, based on sampling he conducted at domestic wastewater outfalls discharging directly to surface waters, that effluent treated to AWT standards often contains pathogenic bacteria and viruses that constitute threats to human health. On this basis, he opined that even though the effluent from the Expanded Wastewater Facility is treated to AWT, it may contain pathogenic constituents that are harmful to human health. However, as previously discussed, the evidence shows that the effluent discharged through KWRU's injection wells will be substantially diluted by groundwater, and also by surface waters to the extent it reaches surface waters at some unknown location. Accordingly, the results of Paul's pathogen studies cannot be extrapolated to conclude that KWRU's effluent also will contain pathogenic bacteria and viruses in such amounts as to constitute a threat to human health. Petitioners failed to show that the effluent disposed of in the injection wells will cause or contribute to violations of the surface water quality standards in rules 62- 302.500(1)(a)5. and 62-302.530(61). Dilution to Meet Surface Water Quality Standards Petitioners allege that KWRU is relying on dilution of the effluent in order to meet surface water quality standards without having been permitted for a mixing zone, in violation of rule 62-302.500(1)(c).51/ This contention lacks merit. As discussed in detail above, the credible, persuasive evidence establishes that the effluent discharged through the injection wells will not violate water quality standards for and parameters, including for nutrients, and will not cause or contribute to the violation of water quality standards. The credible, persuasive evidence establishes that once injected, the effluent will horizontally migrate a considerable distance before it may migrate vertically to reach surface waters. The parties generally agree that ground water and surface waters are "connected" in the Florida Keys. To that point, although it appears likely that at some point the effluent will reach surface water, the evidence does not establish that is an absolute certainty. Nonetheless, even assuming the effluent would reach surface waters at some unknown location and time, the persuasive evidence shows that it would be so substantially diluted by the ground water that it would neither cause nor contribute to violations of surface water quality standards. Further, the persuasive evidence, consisting of Weaver's "worst case" analysis of nutrient loading from the effluent discharge, which assumed no dilution by ground water, establishes that even if the effluent——which will be treated to AWT standards——were discharged directly into surface waters, it would meet the applicable nutrient criteria. Finally, Petitioners' claim assumes that the effluent will be discharged into surface waters. However, as discussed above and in greater detail below, to the extent the effluent ultimately may be discharged to surface waters, such discharge would be indirect, so would not be subject to statutory and rule provisions requiring establishment of a mixing zone. For these reasons, Petitioners failed to prove that KWRU violated any applicable law or rule by not requesting and obtaining a mixing zone for the discharge of the effluent through the injection wells. Class V Injection Wells in Monroe County Petitioners also allege that issuance of the Permit at Issue violates rule 62-528.630(7), which requires all Class V Group 3 domestic wastewater injection wells in Monroe County to provide reasonable assurance that operation of the well will not cause or contribute to a violation of surface waters standards as defined in chapter 62-302. As discussed above, the credible, persuasive evidence establishes that the operation of the wells as authorized under the Permit at Issue will not cause or contribute to violations of surface water quality standards codified in chapter 62-302. Accordingly, Petitioners failed to prove that the Permit at Issue should be denied on the basis that it violates rule 62-528.630(7). Antidegradation Petitioners contend that the Permit at Issue must be denied because KWRU failed to provide reasonable assurance that the injection of effluent will not violate the antidegradation requirements applicable to surface waters codified at rules 62- 4.242, 62-302.300, 62-302.530(47)(a), and 62-302.700(1). This contention lacks merit. As more fully discussed below, the antidegradation requirements in these rules apply only to a direct discharge to surface waters, which is not present in this case. Here, the evidence clearly establishes that the injection wells do not directly discharge effluent into surface waters. It is undisputed that the effluent will be injected from the wells into Class III ground water, where it will migrate through the subsurface strata. Although it is likely that, due to a "connection" between ground water and surface waters, the effluent ultimately will reach surface waters at some unknown location or locations at some unknown time, this constitutes an indirect discharge, which is specifically excluded from the term "discharge of a pollutant." Fla. Admin. Code R. 62-620.200(13). However, even if the antidegradation rules did apply to the discharge of the effluent through the injection wells, Petitioners failed to prove that the discharge would degrade surface waters. As discussed above, the credible, persuasive evidence establishes that the surface waters in the Florida Keys, including those in and around Stock Island and Key West, currently meet the narrative and/or nutrient criteria, as applicable, and that effluent discharged through the injection wells will be treated to AWT standards, substantially reducing the facility's total nutrient loading below current levels. Thus, the credible, persuasive evidence established that, even in a "worst-case" scenario, which assumes no dilution of the effluent by ground or surface waters, the effluent still would not cause or contribute to a violation of the narrative or numeric nutrient criteria. As discussed above, the credible, persuasive evidence showed that, in fact, the effluent will be very substantially diluted by the ground water into which it is injected, and will be further diluted if and when it ultimately reaches surface waters. For these reasons, Petitioners failed to prove that KWRU did not provide reasonable assurance that the disposal of the effluent through the injection wells would not degrade surface waters, in violation of rules 62-4.242, 62-302.300, 62- 302.530(47)(a), and 62-302.700(1). Alleged Violation of Ground Water Standards Petitioners allege that KWRU did not provide reasonable assurance that the injection wells would not violate applicable ground water standards. Petitioners further allege that there is an underground drinking water source under Stock Island. In that case, more stringent ground water quality and injection well rule standards would apply to operation of the injection wells. Petitioners did not present any credible, persuasive evidence to support these allegations. The persuasive evidence establishes that although there is a fresh water lens under Stock Island, it is not classified as an underground source of drinking water52/ due to its substantial variability in horizontal and vertical extent, which renders the salinity levels highly variable. Thus, the ground water at Stock Island is classified as Class G-III ground water which is non-potable ground water having a total dissolved solids content of 10,000 mg/L or greater, or having a total dissolved solids content of 3,000 to 10,000 mg/L and having been determined to have no reasonable potential as a future source of drinking water or designated by rule as an exempted aquifer. Only the minimum criteria for ground water, known as the "free-from" standards, apply to Class G-III ground water. Fla. Admin. Code R. 62-520.430(1). These criteria require that at all times and in all places, ground water be free from discharge components in concentrations that are carcinogenic, teratogenic, mutagenic, or toxic to humans; acutely toxic within surface waters affected by ground water; pose a serious danger to the public health, safety, or welfare; create or constitute a nuisance; or impair the reasonable and beneficial use of adjacent waters. Fla. Admin. Code R. 62-520.400. There is no evidentiary basis on which to infer that the effluent from Expanded Wastewater Facility that is disposed through the injection wells will violate the free-from standards KWRU's many years of effluent monitoring at the Existing Wastewater Facility show that the effluent does not violate these standards. Further, David Rhodes, a Florida-licensed P.G. employed by DEP, credibly testified that a violation of the free- from standards necessarily would entail the presence of toxic materials in KWRU's effluent and that there would be immediate and dramatic effects on the flora and fauna at the golf course, where reclaimed water is reused for irrigation. Since such effects never have occurred, it is reasonable to infer that the effluent from the Expanded Wastewater Facility will not violate the free-from standards.53/ Additionally, as previously addressed, the credible, persuasive evidence demonstrates that no surface water quality violations will result from installation and operation of the injection wells as part of the Expanded Wastewater Facility. Accordingly, the reasonable and beneficial use of adjacent waters will not be impaired due as a result of the injection wells. Petitioners also claim that due to inadequate treatment by the Expanded Wastewater Facility, the effluent disposed in the injection wells will contain unacceptably high levels of bacteria and viruses. The persuasive evidence establishes that KWRU provides high-level disinfection prior to injecting the effluent or sending the reclaimed water for reuse at the golf course. Historical monitoring data shows that KWRU's effluent complies with applicable microbial standards, and unrebutted evidence consisting of quality-related beach closure data for the Florida Keys, gathered as part of the Department of Health's Healthy Beaches monitoring program, indicates that no beach closings in the Florida Keys ever have been attributed to KWRU's Existing Wastewater Facility. Petitioners did not prove that KWRU failed to provide reasonable assurance that operation of the injection wells authorized as part of the Project will not result in violations of applicable ground water standards. To the contrary, KWRU provided reasonable assurance that the effluent from the Expanded Wastewater Facility disposed in the injection wells authorized as part of the Project will not violate any applicable ground water standards. Alleged Water Quality Violations Due to Reuse System Petitioners allege that KWRU did not provide reasonable assurance that the storage of up to 1 MGD of reclaimed water in the reuse system storage ponds on the Key West Golf Club golf course will not cause or contribute to a violation of surface water quality standards and ground water standards. Specifically, Petitioners posit that, because the ponds are unlined, reclaimed water from the Expanded Wastewater Facility will leach from the ponds into the ground water and reach surface waters, violating surface water quality standards and ground water standards and negatively impacting human health through high levels of microbial pathogens, pharmaceuticals, and personal care products. Petitioners further allege that discharge of reclaimed water from the ponds into the ground water could mobilize constituents of concern from the Key West Landfill and a closed waste-to-energy facility, both of which are near the golf course, ultimately resulting in surface water quality standards and ground water violations. In support of these contentions, Petitioners presented the testimony of Scott Zednek, who testified that the reclaimed water, which is fresher than the surrounding ground water, may leach from the ponds into the ground water, and thereafter potentially may reach surface waters. According to Zednek, this leaching could occur because the ponds are unlined. Additionally, Zednek opined that, because there is a closed landfill near the golf course, the reclaimed water leaching from the reuse system ponds could mobilize and spread contaminants from the landfill. The persuasive evidence demonstrates that storage of the reclaimed water in the reuse system ponds will not result in violations of ground water standards or surface water quality standards. Although the golf course ponds are unlined in the sense that a high-density polyethylene or impermeable clay liner has not been installed on the bottom and sides of the ponds, over the years, marl has formed on the bottom and sides of the ponds, creating an aquitard that substantially confines the reclaimed water to the ponds, rather than allowing it to readily leach into the ground water. Further, the reclaimed water generally is less saline than the ground water underlying the course, so tends to "float" on top of, rather than readily mixing with, the denser, more saline ground water. Additionally, the evidence shows that years of historical ground water monitoring data obtained through monitoring wells on the golf course near the reuse system ponds showed no ground water standards violations as a result of storing reclaimed water from KWRU in the ponds.54/ Because the amount of reclaimed water being sent to the reuse storage ponds is not being changed by the Project, and the nutrient levels in the reclaimed water are being through AWT, there is no factual basis from which to infer that storage of the reclaimed water in the pond will result in violations of ground water standards or surface water quality standards. The persuasive evidence also does not support Zednek's view that reclaimed water leaching into the ground water from the storage ponds will mobilize pollutants under the nearby landfill. As discussed above, the persuasive evidence establishes that, due to the aquitard, there will be very little leaching of reclaimed water into the ground water, and even if such leaching did occur, there would be very little mixing of the reclaimed water with the more saline ground water. As such, there is no demonstrated factual basis on which to infer that reclaimed water will flow under, and mobilize and spread pollutants from, the landfill. Further, the evidence establishes that the predominant ground water flow direction under Stock Island is to the south- southeast. Since the landfill is located north of the reuse system ponds, any reclaimed water that did enter ground water would flow south-southeast, away from the landfill. Zednek also opined that if the storage ponds overflowed, the reclaimed water could run off into surface waters, resulting in surface water quality violations. However, the evidence establishes that KWRU will only send as much reclaimed water to the reuse storage ponds as the Key West Golf Club requests, so any assertion that the ponds will overflow is speculative. Further, even if the ponds were to overflow, Petitioners did not show that the reclaimed water would flow into surface waters, or that it would violate surface water quality standards if it were to flow into surface waters. Petitioners did not prove that KWRU failed to provide reasonable assurance that the storage of reclaimed water in the reuse system storage ponds at the Key West Golf Club will not violate any ground water standards. Stated another way, KWRU provided reasonable assurance that the storage of reclaimed water in the reuse system ponds at the Key West Golf Club golf course will not cause or contribute to violations of ground water standards or surface water quality standards. Applicability of AWT to Existing Wastewater Facility Commencing January 1, 2016, the two new treatment trains authorized by the Permit at Issue must meet the AWT standards. These treatment trains are authorized to treat wastewater to specified secondary standards through December 31, 2015. Petitioners assert that the Permit at Issue must be denied because the two new treatment trains should be required to meet AWT standards immediately upon operation, and that allowing the new treatment trains to meet secondary standards through December 31, 2015, violates section 403.806(10) and rule 62- 620.620(4). Sections 403.086(10)(c) and (d) expressly impose the AWT standards on all new or expanded domestic wastewater discharges after December 31, 2015. Accordingly, the Permit at Issue is completely consistent with the statute. Further, the Permit at Issue does not violate rule 62- 620.602(4). That rule requires a wastewater facility permit applicant to make certain specified demonstrations when a permit is renewed, revised, or reissued having a less stringent effluent limitation than contained in a previous permit. Although the Existing Permit states that the Existing Wastewater Facility has been modified to meet the AWT standards, it further states: "[t]he extended aeration process will be switched to the AWT nutrient removal system prior to January 1, 2016." The clear import of this statement is that the AWT standards are not required to be met until January 1, 2016, consistent with section 403.806(10). Because the Permit at Issue also requires the new treatment trains to meet the AWT standards commencing on January 1, 2016, the Permit at Issue does not impose a less stringent effluent limitation than that imposed by the Existing Permit; accordingly, KWRU is not required to make the so-called "anti-backsliding" demonstrations set forth in rule 62- 620.620(4). Furthermore, it is undisputed that the new treatment trains will not be constructed and operational before January 1, 2016; thus, as a practical matter, the new treatment trains must meet the AWT standards immediately upon going into operation. Thus, Petitioners have not shown that the Permit at Issue should be denied on the basis that it violates section 403.806(10) and rule 62-620.620(4). Petitioners' Standing As noted above, Petitioner Halloran, resides in Key West, Florida. His residence fronts on the water and he owns a boat. Halloran and his family use and enjoy the waters around Key West for swimming, fishing, kayaking, and other in-water recreational uses, eat local-caught seafood, and engage in nature photography. Halloran also owns rental properties that front on the water, and he owns and rents out dock space for houseboat mooring. He is a member of Last Stand. Halloran has challenged the Permit at Issue because he is concerned that the increased discharge of effluent from the Project down the injection wells will degrade the waters around Key West where he and his family engage in in-water recreational uses. He also is concerned that the increased effluent discharge, particularly nutrients, will harm the seagrasses, coral reefs, and the benthic communities in the waters around Key West. Halloran read the initial petition prepared and filed in this proceeding, and he skimmed the Amended Petition specifically to determine the changes from the initial Petition.55/ He acknowledges that he does not completely recall the entire contents of the initial petition or the Amended Petition. Petitioner Last Stand is a not-for-profit corporation incorporated under Florida law. Naja Girard D'Albissin, a member of the Board of Directors of Last Stand, appeared on behalf of Last Stand. D'Albissin testified that Last Stand currently has approximately 105 members. Last Stand's mission is to promote, preserve, and protect the quality of life in Key West and the Florida Keys, with particular emphasis on protecting the natural environment. Last Stand historically has engaged in environmental advocacy directed toward governmental entities and engaged in litigation opposing activities that its members believe would harm the natural environment. In July 2014, Last Stand's Board of Directors voted to challenge the Permit at Issue. Respondent DEP stipulated that 52 members of Last Stand spend time or reside in Monroe County, 50 members enjoy the waters and natural environment of the Florida Keys, and 50 members believe that their use and enjoyment of the natural environment and economic interests in Monroe County will be adversely affected by the Project. Last Stand tendered, for admission into evidence, affidavits of some of its members attesting to the substantial interests they contend will be injured by the Project. However, Last Stand had refused to allow Respondents to engage in discovery regarding these members' alleged substantial interests; accordingly, the undersigned did not allow these members to testify at the final hearing.56/ The affidavits were excluded from admission into evidence as unsupported hearsay. See § 120.57(1)(c), Fla. Stat. Entitlement to Permit at Issue KWRU met its burden under section 120.569(2)(p) to present a prima facie case demonstrating entitlement to the Permit at Issue by entering into evidence the applications and supporting materials for the Permit at Issue for the Project. Additionally, KWRU presented persuasive, competent, and substantial evidence beyond that necessary to meet its burden under section 120.569(2)(p) to demonstrate its entitlement to the Permit at Issue. Petitioners did not meet their burden of persuasion under section 120.569(2)(p) in this proceeding to demonstrate that the Project does not meet all applicable statutory and rule requirements. Furthermore, on rebuttal, KWRU and DEP thoroughly addressed and rebutted the grounds that Petitioners allege justify denial of the Permit at Issue. The persuasive evidence demonstrates that the Project meets all applicable statutory and rule requirements. Accordingly, KWRU is entitled to issuance of the Permit at Issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the issuance of Domestic Wastewater Facility Permit FLA014951-012-DWIP and UIC Permits 18490-020 and 18490-021. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
The Issue The issue in this case is whether Respondent Laniger Enterprises of America, Inc. (Laniger), is liable to Petitioner Department of Environmental Protection (Department) for penalties and costs for the violations alleged in the Department's Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV).
Findings Of Fact The Parties The Department is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Laniger is a Florida corporation that owns and operates the WWTP that is the subject of this case, located at 1662 Northeast Dixie Highway, Jensen Beach, Martin County, Florida. The WWTP is referred to in the Department permit documents as the Beacon 21 WWTP. The WWTP Laniger acquired the WWTP in 1988 in a foreclosure action. At that time, the WWTP was in a "dilapidated" condition and was operating under a consent order with the Department. After acquiring the WWTP, Laniger brought it into compliance with the Department's requirements. Laniger's WWTP is commonly referred to as a "package plant."3 The WWTP's treatment processes are extended aeration, chlorination, and effluent disposal to percolation ponds. The WWTP does not have a direct discharge to surface water. It was permitted to treat 99,000 gallons per day (gpd) of wastewater. Its average daily flow during the past year was about 56,000 gallons. The east side of the WWTP site is adjacent to Warner Creek. On the north side of the WWTP site, an earthen berm separates the WWTP's percolation ponds from a drainage ditch that connects to Warner Creek. Warner Creek is a tributary to the St. Lucie River. The St. Lucie River is part of the Indian River Lagoon System. The Indian River Lagoon Act In 1989, the St. Johns River Water Management District and the South Florida Water Management District jointly produced a Surface Water Improvement and Management (SWIM) Plan for the Indian River Lagoon System ("the lagoon system"). For the purpose of the planning effort, the lagoon system was defined as composed of Mosquito Lagoon, Indian River Lagoon, and Banana River Lagoon. It extends from Ponce de Leon Inlet in Volusia County to Jupiter Inlet in Palm Beach County, a distance of 155 miles. The SWIM Plan identified high levels of nutrients as a major problem affecting the water quality of the lagoon system. Domestic wastewater was identified as the major source of the nutrients. The SWIM Plan designated 12 problem areas within the lagoon system and targeted these areas for "research, restoration and conservation projects under the SWIM programs." Department Exhibit 2 at 11-13. Neither Warner Creek nor the St. Lucie River area near Laniger's WWTP is within any of the 12 problem areas identified in the SWIM Plan. With regard to package plants, the SWIM Plan stated: There are numerous, privately operated, "package" domestic WWTPs which discharge indirectly or directly to the lagoon. These facilities are a continual threat to water quality because of intermittent treatment process failure, seepage to the lagoon from effluent containment areas, or overflow to the lagoon during storm events. Additionally, because of the large number of "package" plants and the lack of enforcement staff, these facilities are not inspected or monitored as regularly as they should be. Where possible, such plants should be phased out and replaced with centralized sewage collection and treatment facilities. Department Exhibit 2, at 64. In 1990, the Legislature passed the Indian River Lagoon Act, Chapter 90-262, Laws of Florida. Section 1 of the Act defined the Indian River Lagoon System as including the same water bodies as described in the SWIM Plan, and their tributaries. Section 4 of the Act provided: Before July 1, 1991, the Department of Environmental Regulation shall identify areas served by package sewage treatment plants which are considered a threat to the water quality of the Indian River Lagoon System. In response to this legislative directive, the Department issued a report in July 1991, entitled "Indian River Lagoon System: Water Quality Threats from Package Wastewater Treatment Plants." The 1991 report found 322 package plants operating within the lagoon system and identified 155 plants as threats to water quality. The 1991 report described the criteria the Department used to determine which package plants were threats: Facilities that have direct discharges to the system were considered threats. Facilities with percolation ponds, absorption fields, or other sub-surface disposal; systems located within 100 feet of the shoreline or within 100 feet of any canal or drainage ditch that discharges or may discharge to the lagoon system during wet periods were considered threats. * * * Facilities with percolation ponds, absorption fields, or other sub-surface disposal systems located more than 100 feet from surface water bodies in the system were evaluated case-by-case based on [operating history, inspection reports, level of treatment, and facility reliability]. Laniger's package plant was listed in the 1991 report as a threat to the water quality of the lagoon system because it was within 100 feet of Warner Creek and the drainage ditch that connects to Warner Creek. The Department notified Laniger that its WWTP was listed as a threat to the water quality of the lagoon system soon after the 1991 report was issued. The Department's 1991 report concluded that the solution for package plants threats was to replace them with centralized sewage collection and treatment facilities. To date, over 90 of the package plants identified in the Department's 1991 report as threats to the water quality of the lagoon system have been connected to centralized sewage collection and treatment systems. The 1999 Permit and Administrative Order On August 26, 1999, the Department issued Domestic Wastewater Facility Permit No. FLA013879 to Laniger for the operation of its WWTP. Attached to and incorporated into Laniger's 1999 permit was Administrative Order No. AO 99-008- DW43SED. The administrative order indicates it was issued pursuant to Section 403.088(2)(f), Florida Statutes. That statute pertains to discharges that "will not meet permit conditions or applicable statutes and rules" and requires that the permit for such a discharge be accompanied by an order establishing a schedule for achieving compliance. The administrative order contains a finding that the Beacon 21 WWTP is a threat to the water quality of the lagoon system and that the WWTP "has not provided reasonable assurance . . . that operation of the facility will not cause pollution in contravention of chapter 403, F.S., and Chapter [sic] 62-610.850 of the Florida Administrative Code." The cited rule provides that "land application projects shall not cause or contribute to violations of water quality standards in surface waters." Most of the parties' evidence and argument was directed to the following requirements of the administrative order: Beacon 21 WWTP shall connect to the centralized wastewater collection and treatment within 150 days of its availability and properly abandoned facility [sic] or provide reasonable assurance in accordance with Chapter 62-620.320(1) of the Florida Administrative Code that continued operation of the wastewater facility is not a threat to the water quality of the Indian River Lagoon System and will not cause pollution in contravention of chapter 403, F.S. and Chapter 62-610.850 of the Florida Administrative Code. * * * (3) Beacon 21 WWTP shall provide this office with semi annual reports outlining progress toward compliance with the time frames specified in paragraph 1 of this section, beginning on the issuance date of permit number FLA013879-002-DW3P. The administrative order contained a "Notice of Rights" which informed Laniger of the procedures that had to be followed to challenge the administrative order. Laniger did not challenge the administrative order. As a result of an unrelated enforcement action taken by the Department against Martin County, and in lieu of a monetary penalty, Martin County agreed to extend a force main from its centralized sewage collection and treatment facility so that the Laniger WWTP could be connected. The extension of the force main was completed in April 2003. The force main was not extended to the boundary of the Laniger WWTP site. The force main terminates approximately 150 feet north of the Laniger WWTP site and is separated from the WWTP site by a railroad. Correspondence Regarding Compliance Issues On August 21, 2001, following an inspection of the Laniger WWTP, the Department sent Laniger a letter that identified some deficiencies, one of which was Laniger's failure to submit the semi-annual progress reports required by the administrative order. Reginald Burge, president of Laniger and owner of the WWTP, responded by letter to William Thiel of the Department, stating that, "All reports were sent to the West Palm Beach office. Copies are attached." Mr. Thiel testified that the progress reports were not attached to Laniger's letter and he informed Laniger that the reports were not attached. Mr. Burge testified that he subsequently hand-delivered the reports. At the hearing, it was disclosed that Laniger believed its semi-annual groundwater monitoring reports satisfied the requirement for progress reports and it was the monitoring reports that Mr. Burge was referring to in his correspondence and which he hand-delivered to the Department. Laniger's position in this regard, however, was not made clear in its correspondence to the Department and the Department apparently never understood Laniger's position until after issuance of the NOV. On April 10, 2003, the Department notified Laniger by letter that a centralized wastewater collection and treatment system "is now available for the connection of Beacon 21." In the notification letter, the Department reminded Laniger of the requirement of the administrative order to connect within 150 days of availability. On May 9, 2003, the Department received a response from Laniger's attorney, stating that the administrative order allowed Laniger, as an alternative to connecting to the centralized wastewater collection and treatment system, to provide reasonable assurance that the WWTP was not a threat to the water quality of the lagoon system, and Laniger had provided such reasonable assurance. It was also stated in the letter from Laniger's attorney that "due to the location of Martin County's wastewater facilities, such facilities are not available as that term is defined in the [administrative] Order."4 On May 29, 2003, the Department replied, pointing out that the administrative order had found that reasonable assurance was not provided at the time of the issuance of the permit in 1999, and Laniger had made no "improvements or upgrades to the facility." The Department also reiterated that the progress reports had not been submitted. On September 29, 2003, the Department issued a formal Warning Letter to Laniger for failure to connect to the Martin County force main and for not providing reasonable assurance that the WWTP will not cause pollution in contravention of Chapter 403, Florida Statutes. The progress reports were not mentioned in the Warning Letter. The Department took no further formal action until it issued the NOV in August 2005. Count I: Failure to Timely File for Permit Renewal and Operating Without a Permit Count I of the NOV alleges that Laniger failed to submit its permit renewal application at least 180 days prior to the expiration of the 1999 permit, failed to obtain renewal of its permit, and is operating the WWTP without a valid permit. The date that was 180 days before the expiration of the 1999 permit was on or about February 27, 2004. Laniger did not submit its permit renewal application until February 15, 2005. In an "enforcement meeting" between Laniger and the Department following the issuance of the warning letter in September 2003, the Department told Laniger that it would not renew Laniger's WWTP permit. It was not established in the record whether this enforcement meeting took place before or after February 27, 2004. When Laniger filed its permit renewal application in February 2005, the Department offered to send the application back so Laniger would not "waste" the filing fee, because the Department knew it was not going to approve the application. Laniger requested that the Department to act on the permit application, and the Department denied the application on April 6, 2005. The Department's Notice of Permit Denial stated that the permit was denied because Laniger had not connected to the available centralized wastewater collection and treatment system nor provided reasonable assurance that the WWTP "is not impacting water quality within the Indian River Lagoon System." Laniger filed a petition challenging the permit denial and that petition is the subject of DOAH Case 05-1599, which was consolidated for hearing with this enforcement case. Laniger's permit expired on August 25, 2004. Laniger has operated the plant continuously since the permit expired. Count II: Failure to Submit Progress Reports Count II of the NOV alleges that Laniger failed to comply with the requirement of the administrative order to provide the Department with semi-annual reports of Laniger's progress toward connecting to a centralized sewage collection and treatment facility or providing reasonable assurances that continued operation of the WWTP would not be a threat to the water quality of the lagoon system. Laniger maintains that its groundwater monitoring reports satisfied the requirement for the semi-annual progress reports because they showed that the WWTP was meeting applicable water quality standards. The requirement for groundwater monitoring reports was set forth in a separate section of Laniger's permit from the requirement to provide the semi-annual progress reports. The monitoring reports were for the purpose of demonstrating whether the WWTP was violating drinking water quality standards in the groundwater beneath the WWTP site. They served a different purpose than the progress reports, which were to describe steps taken by Laniger to connect to a centralized sewage collection and treatment facility. Laniger's submittal of the groundwater monitoring reports did not satisfy the requirement for submitting semi-annual progress reports. There was testimony presented by the Department to suggest that it believed the semi-annual progress reports were also applicable to Laniger's demonstration of reasonable assurances that the WWTP was not a threat to the water quality of the lagoon system. However, the progress reports were for the express purpose of "outlining progress toward compliance with the time frames specified in paragraph 1." (emphasis added) The only time frame mentioned in paragraph 1 of the administrative order is connection to an available centralized wastewater collection and treatment facility "within 150 days of its availability." There is no reasonable construction of the wording of this condition that would require Laniger to submit semi-annual progress reports related to reasonable assurances that the WWTP is not a threat to the water quality of the lagoon system. Count III: Department Costs In Count III of the NOV, the Department demands $1,000.00 for its reasonable costs incurred in this case. Laniger did not dispute the Department's costs.
The Issue The issue is whether Petitioner is entitled to an operating permit for an existing domestic wastewater treatment facility operating in Naples.
Findings Of Fact On May 10, 1991, Respondent issued Petitioner a five- year permit to operate a 0.3 million gallon per day (GPD) domestic wastewater treatment plant known as the Rookery Bay facility in Naples. This permit, which is number DO11-187204, allowed Petitioner to operate an extended aeration plant, using chlorine for basic disinfection and disposing of the reclaimed water in two percolation ponds. The 1991 permit required Petitioner to allow Respondent access to the facility for inspections at reasonable times, notify Respondent of any violations of any permit conditions, maintain total chlorine residual of at least 0.5 milligrams per liter (mg/L) of effluent sample after at least 15 minutes’ contact time at maximum daily flow, maintain annual average effluent quality values for carbonaceous biochemical oxygen demand (CBOD) and total suspended solids (TSS) of not more than 20 mg/L of effluent sample with maximum effluent quality concentrations of 60 mg/L in any single effluent sample, maintain a monthly average effluent quality value for fecal coliform of not more than 200 per 100 ml of effluent sample with a maximum effluent quality value of 800 per 100 ml in any single effluent sample, notify Respondent of any discharge from the percolation pond overflows, and monitor influent loading to the facility and apply for a permit modification if the monthly average influent flows approach or exceed the design capacity of 0.3 MGD or if the facility violates treatment standards. Respondent also issued Petitioner a five-year permit to operate a 0.15 GPD domestic wastewater treatment plant at the Rookery Bay facility. This permit, which is number DO11-167093, allowed Petitioner to operate a contact stabilization process plant. On December 29, 1995, Petitioner submitted a renewal application for permit number DO11-167093. Although the permit number references the smaller tank, the renewal application requests a permitted capacity of 0.3 MGD. By Notice of Permit Denial dated February 9, 1996, Respondent denied the permit application on the ground that Petitioner could not provide reasonable assurance that it would operate the facility in compliance with state standards based on a “continued and long standing pattern of noncompliance and violation of . . . rules and standards.” Petitioner’s operation of the Rookery Bay treatment plant has been poor. Respondent has brought an enforcement action against Petitioner, which signed a consent final judgment in January 1994. The consent final judgment required Respondent to pay $4500 in civil penalties. As it applied to the Rookery Bay facility, the consent final order required Petitioner to evaluate the facility to discover the causes of past violations and modify the facility to eliminate these violations. But Petitioner has not complied with material provisions of the consent final judgment. Petitioner’s operator has been held in contempt of court several times for violations at Rookery Bay and a nearby smaller treatment facility known as Port au Prince. Petitioner has several times refused Respondent’s representatives reasonable access to the Rookery Bay facility. At least twice, Petitioner has failed to advise Respondent of equipment failures that resulted in violations of treatment standards. On January 11, 1995, Petitioner cut off the power for several hours to a lift station pump serving a nearby a condominium complex. Predictably, the sewage backed up and overflowed into the street. Petitioner failed to restore the power timely or remove the overflowed sewage. On several occasions, raw or inadequately treated sewage has leaked from the tanks at the Rookery Bay facility. Petitioner has failed to eliminate this problem over the course of its five-year operating permit. On numerous occasions, Respondent’s representatives have detected violations of effluent quality. These violations have arisen inadequate detention time in the chlorine contact chamber. Consequently, the TSS and CBOD levels have repeatedly exceeded permitted standards. The parties dispute the adequacy of the capacity of the Rookery Bay facility. There is considerable evidence, including one statement in the application, that suggests that the facility’s capacity is seriously inadequate. Either the capacity of the Rookery Bay is, and has been, inadequate--in which case at least some of the violations are attributable to overcapacity operation--or, if the facility has had adequate capacity, the operational competence of Petitioner is below the minimum level necessary to provide reasonable assurance of proper operations at this facility in the future. Most likely, the Rookery Bay facility lacks adequate capacity, at least part of the year, and Petitioner lacks the minimum requisite competence to operate the facility in a responsible manner. The strongest evidence in the record suggests that the Rookery Bay facility serves, during peak season, 1500 mobile home connections and 400 apartment connections. These connections generate about 377,500 GPD of raw sewage. A slightly lower value is probable after consideration of the likely presence of recreational vehicles among the mobile home count. But this reduction, even without adjustment for dry-season infiltration and inflow, would not yield sufficient savings in raw sewage as to provide reasonable assurance that the Rookery Bay facility has adequate capacity to serve the present demand or adequate capacity to serve the demand projected over the five-year term of the permit that Petitioner seeks. Even if one were to credit Petitioner’s volume-to- capacity calculations, the results fail to constitute reasonable assurance of violation-free operation of the Rookery Bay facility. Petitioner's calculations leave little if any margin for error at present demand levels, and, given Petitioner’s singularly poor operating history at this facility, these calculations provide poor assurance of compliant operation of this troubled facility.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner’s renewal application for a domestic wastewater treatment operating permit for the Rookery Bay facility. DONE AND ORDERED in Tallahassee, Florida, this 9th day of May, 1997. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997. COPIES FURNISHED: Sanford M. Martin 2500 Airport Road, Suite 315 Naples, Florida 34112-4882 Thomas I. Mayton, Jr. Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue The issue to be determined in this case is whether the City of Tarpon Springs (“City”) is entitled to a industrial wastewater facility permit for its proposed discharge of demineralization concentrate into the Gulf of Mexico adjacent to Pasco County, Florida.
Findings Of Fact The Parties Henry Ross is a resident of Tarpon Springs. In his petition for hearing, he alleges that he is a recreational fisherman and a "consumer of fish taken from the area" where the proposed wastewater discharge would occur. He presented no evidence at the final hearing to prove these allegations. Neither the City or the Department stipulated to facts that would establish Ross's standing. The City of Tarpon Springs is a municipality in Pinellas County and the applicant for the industrial wastewater permit that is challenged by Ross. The Department is the agency charged by law with the duty, and granted the power, to regulate the discharge of pollutants into waters of the State. The Proposed Permit - General Due to the cost of obtaining potable water from Pinellas County Utilities, the City decided to look for another source of drinking water. In February 2004, an alternative water supply plan was developed by the City’s Office of Public Services which analyzed potable water supply options. It determined that the withdrawal and treatment of brackish groundwater represented the best option for the City. The proposed permit authorizes the City to discharge industrial wastewater into waters of the State. The wastewater is demineralization concentrate, which is produced when RO technology is used to remove salts from brackish water to convert it to potable water. The wastewater would be produced in conjunction with the operation of a not-yet-constructed WTP that would supply public drinking water to the residents of the City. The City must also obtain a consumptive use permit from the Southwest Florida Water Management District for the proposed withdrawal of groundwater. Whether the Town is entitled to a consumptive use permit is not at issue in this proceeding. The industrial wastewater permit would authorize a maximum daily discharge of 2.79 million gallons per day ("mgd") of RO concentrate. The initial operation of the WTP, however, is expected to discharge 1.05 mgd. The RO concentrate would be transported via a force main from the WTP in the City to an outfall in Pasco County. The outfall would discharge the wastewater into a canal which is already being used for the discharge of cooling water from Progress Energy Florida, Inc.’s Anclote Power Generation Facility. The outfall would be 50 feet north of the point in the canal where Progress Energy is required to demonstrate compliance with its own permitting requirements, so as not to interfere with Progress Energy's ability to demonstrate compliance. There is a floating barrier in the channel north of the proposed point of discharge, and a fence along the side of the canal, to prevent swimmers, boaters, and persons on foot from getting near the Progress Energy power plant. The floating barrier and fence would also prevent swimmers, boaters, or pedestrians from reaching the proposed discharge outfall and the area of the canal where the discharge will initially mix. After being discharged into the canal, the wastewater would become diluted and flow northward, out of the canal and into the open waters of the Gulf. The prevailing currents in area would most often force the wastewater south toward Pinellas County and the mouth of the Anclote River. To determine the characteristics of the wastewater, the City's consultants collected water from the three proposed well fields for the new WTP and ran the water through a small, pilot-scale RO unit to generate an RO concentrate that is representative of the proposed RO discharge. It was determined that eight constituents of the wastewater would likely be present in concentrations that would exceed applicable state water quality standards: aluminum, copper, iron, gross alpha (a radioactivity measurement), total radium, selenium, nickel, and zinc. The Mixing Zones The Department may authorize mixing zones in which a wastewater discharge is allowed to mix with the receiving waters. See Fla. Admin. Code R. 62-4.244. Within the mixing zone, certain minimum water quality criteria must be met. At the outer boundary of the mixing zone, the applicable state water quality standards must be met. In this case, the water quality standards for Class III marine waters are applicable. The City's consultants analyzed the wastewater, receiving waters, and other factors and used an analytical model to simulate a number of mixing scenarios. In cooperation with Department staff, a separate mixing zone was established for each of the eight constituents that are not expected to meet water quality standards at the outfall. The largest mixing zone, for copper, is 1,483.9 square meters. The smallest mixing zone, for nickel, is 0.7 square meters. The mixing zones are conservatively large to assure sufficient mixing. Under most conditions, the mixing is expected to occur in a smaller area. Toxicity Analysis Among the minimum criteria that must be met within a mixing zone is the requirement to avoid conditions that are acutely toxic. See Fla. Admin Code R. 62-302.500(1)(a). A wastewater discharge is tested for potential acute toxicity by exposing test organisms to the undiluted discharge and determining whether more than 50 percent of the organisms die within a specified time period. The test organisms, mysid shrimp and silverside minnow, are sensitive species. Therefore, when a discharge is not acutely toxic to these organisms, it can be reasonably presumed that the discharge would not harm the native organisms in the receiving waters. The acute toxicity test for the proposed RO concentrate indicated zero toxicity. The Department requested that the City also analyze the potential chronic toxicity of the proposed discharge. A wastewater discharge shows chronic toxicity if exposure to the discharge adversely affects the growth and weight of the test organisms. The tests performed on the representative discharge showed that the proposed discharge of RO concentrate would not create chronic toxicity in the mixing zones. Petitioner’s expert witness, Ann Ney, did not review the toxicity analyses or other water quality data that were submitted to the Department by the City. However, she expressed a general concern about a salty discharge that could create stratification in the canal with higher salinity at the bottom of the canal that might be hypoxic (little or no dissolved oxygen). The more persuasive evidence shows that salinity stratification, or a hypoxic condition, is unlikely to occur. The proposed permit requires the City to conduct quarterly chronic toxicity tests. The permit also requires the City to periodically test the water and sediments for any unexpected cumulative effects of the discharge. Evaluation of Disposal Options Florida Administrative Code Rule 62-620.625(6) requires that an applicant for a permit to discharge demineralization concentrate must investigate disposal options potentially available in the project area. The City evaluated blending the discharge concentrate with the City's re-use water irrigation program or with the City’s domestic wastewater discharge into the Anclote River. The RO concentrate was too salty for irrigation use and there was an inadequate volume of domestic wastewater available throughout the year. In addition, the Anclote River is an Outstanding Florida Water and, therefore, is afforded the highest water quality protection under Department rules. See Fla. Admin. Code R. 62-4.242(2). The City also looked at underground injection but that was economically unreasonable and there was concern about upward migration of the discharge. It was economically unreasonable to discharge the concentrate farther out into the Gulf. Anti-degradation Analysis For a proposed new discharge, a permit applicant must demonstrate that the use of another discharge location, land application, or recycling that would avoid the degradation of water quality is not economically and technologically reasonable. See Fla. Admin. Code R. 62-4.242(1)(d). As discussed above, the City investigated other disposal options, but they were not economically or technologically reasonable. An applicant for a permit authorizing a new discharge must demonstrate that any degradation is desirable under federal standards and under circumstances that are clearly in the public interest. See Fla. Admin. Code R. 62-302.300(17). In determining whether a proposed discharge is desirable under federal standards and under circumstances that are clearly in the public interest, the Department is required by Rule 62-4.242(1)(b) to consider the following factors: Whether the proposed project is important to and is beneficial to public health, safety or welfare (taking into account the policies set forth in Rule 62-302.300, F.A.C., and, if applicable, Rule 62-302.700, F.A.C.); and Whether the proposed discharge will adversely affect conservation of fish and wildlife, including endangered or threatened species, or their habitats; and Whether the proposed discharge will adversely affect the fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge; and Whether the proposed discharge is consistent with any applicable Surface Water Improvement and Management Plan that has been adopted by a Water Management District and approved by the Department. The proposed project is important to and is beneficial to public health, safety or welfare because it would provide drinking water for the public. In addition, the treatment and use of brackish groundwater converts otherwise unusable water into a valuable resource. The use of brackish water avoids the use of water in the surficial aquifer that is used by natural systems, such as wetlands. The Florida Legislature has found that the demineralization of brackish water is in the public interest, as expressed in Section 403.0882, Florida Statutes (2010): The legislature finds and declares that it is in the public interest to conserve and protect water resources, provide adequate supplies and provide for natural systems, and promote brackish water demineralization as an alternative to withdrawals of freshwater groundwater and surface water by removing institutional barriers to demineralization and, through research, including demonstration projects, to advance water and water by-product treatment technology, sound waste by-product disposal methods, and regional solutions to water resources issues. The proposed discharge would not adversely affect conservation of fish and wildlife. Because the discharge is not toxic to sensitive test organisms provides reasonable assurance that the native fish and other aquatic life would not be adversely affected by the discharge. The only identified threatened or endangered species that frequents the canal waters is the endangered Florida Manatee. Manatees use the canal because of its relatively warm waters. Manatees come to the surface to breathe and they drink fresh water. There is no reason to expect that a manatee moving through the mixing zones would be adversely affected by the RO concentrate. The Florida Fish and Wildlife Conservation Commission, which has primary responsibility for the protection of endangered and threatened species, did not object to the proposed permit. Manatees and many other aquatic species use seagrasses as food or habitat. There are no seagrasses in the area of the canal into which the RO concentrate would be discharged, but there are dense seagrass beds nearby. The proposed discharge would have no effect on the seagrasses in the area. The proposed discharge would not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge. Because the proposed discharge is non-toxic and would meet Class III water quality standards before reaching the closest areas where humans have access to the canal and Gulf waters, there is no reason to believe that the proposed discharge would be harmful to humans. The proposed discharge would not adversely affect recreational activities, such as swimming, boating, or fishing. Petitioner presented the testimony of two fishermen about fishing resources and water flow in the area, but no evidence was presented to show how the proposed discharge would reduce marine productivity. Petitioner contends that the proposed discharge would adversely affect the Pinellas County Aquatic Preserve. However, the aquatic preserve is two miles away. The proposed discharge would probably be undetectable at that distance. It would have no effect on the waters or other resources of the aquatic preserve. With regard to the requirement that the proposed discharge be consistent with an adopted and approved Surface Water Improvement and Management Plan for the area, there is no such plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department issue a final order determining that Petitioner lacks standing, and approving the issuance of the industrial wastewater facility permit to the City. DONE AND ENTERED this 16th day of December, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2010. COPIES FURNISHED: Nona R. Schaffner, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Thomas J. Trask, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Henry Ross 1020 South Florida Avenue Tarpon Springs, Florida 34689 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue There are two issues in these cases: (1) whether Tampa Bay Desal, LLC ("TBD") provided reasonable assurances that its permit application to discharge wastewater from a proposed seawater desalination plant, National Pollutant Discharge Elimination System ("NPDES") Permit Application No. FL0186813- 001-IWIS, meets all applicable state permitting standards for industrial wastewater facilities; and (2) whether Tampa Electric Company, Inc. (TEC) provided reasonable assurances that its proposed modification to an existing industrial wastewater facility permit, NPDES Permit Modification No. FL0000817-003-IWIS, meets all applicable state permitting standards.
Findings Of Fact Parties other than SOBAC Poseidon Resources, LLC wholly owns TBD as one of Poseidon Resources' subsidiaries. Poseidon Resources formed TBD, the successor to S&W Water, LLC, as a special purpose project company to properly staff and finance the desalination project. TBW entered into a 30-year purchase agreement with TBD (then known as S & W Water, LLC) in 1999 to build, own and operate the desalination facility. Poseidon Resources operates as a privately-held company and all stockholders are major corporations. Poseidon Resources opened for business in 1995 and has over $300 million in water processing assets under management. DEP is an agency of the State of Florida. The United States Environmental Protection Agency ("EPA") delegated its NPDES permitting program to the State of Florida and is run by DEP. TEC is an investor-owned electric utility serving Hillsborough, Polk, Pasco, and Pinellas Counties. TEC owns and operates the Big Bend generating station, an electric plant consisting of four coal-fired steam units having a combined capacity of approximately 1800 megawatts. SWFWMD is a water management district in the State of Florida. SWFWMD reviews and acts upon water use permit applications and protects and manages the water and water- related resources within its boundaries. TBW and all of its Member Governments are within the geographical and legal jurisdiction of SWFWMD. Pasco County is a political subdivision of the State of Florida, a member government of TBW, and is located within the jurisdiction of SWFWMD. Pasco County is a major source of the groundwater used by TBW. TBW is a regional public water supply authority. TBW is the sole and exclusive wholesale supplier of potable water for all its member governments of TBW, which are Hillsborough County, Pasco County, Pinellas County, the City of New Port Richey, the City of St. Petersburg, and the City of Tampa. TBW serves approximately 2 million customers. SOBAC SOBAC was incorporated as a Florida not-for-profit corporation in February 2000. The stated mission of SOBAC is to protect the environmental quality of the bays, canals, and waterways of the Tampa Bay area, and to ensure drinking water for SOBAC members in the Tampa Bay area. SOBAC was formed by a group of people residing primarily in the area of Apollo Beach. Apollo Beach is a waterfront residential community that was created by dredge and fill of wetlands, estuary, and bay bottom bordering the "Big Bend" area of Tampa Bay, where the community terminates in a "hammerhead" of fill over what was once a seagrass bed. Across the North Apollo Beach "Embayment," formed by the "hammerhead," is the discharge canal of TEC's Big Bend power plant. A corrugated metal barrier partially separates the embayment from the discharge canal. This discharge canal also will receive TBD's discharge after re-mixing with TEC's discharge. SOBAC initially was formed out of concern for the environment in the Big Bend area of Tampa Bay. However, there is no requirement that SOBAC members live in the Apollo Beach area, or even in the vicinity of Tampa Bay, and SOBAC's geographic area of concern has broadened somewhat beyond the Apollo Beach area. In order to become a member of SOBAC, one need only sign a card. Prospective members are asked to donate $5 on signing up. Most members donate $5 or more. However, the donation is not mandatory. There is no requirement that members attend any meetings, or participate in any SOBAC activities. Section 3.1 of SOBAC's Constitution and Corporate By-Laws makes "active" membership contingent on payment of "the prescribed [annual] dues." Section 3.2 of SOBAC's Constitution and Corporate By- Laws requires SOBAC to establish annual dues, but no annual dues have been paid because no annual dues structure has ever been established. As a result, no annual dues have been "prescribed," and "active" membership does not require payment of annual dues. SOBAC claims to have approximately 1,000 members. These include all those who have ever become members. Approximately 700 live in the Appollo Beach area; approximately 50-75 of these members form the "core" of active members. Approximately 50-100 members live outside the Tampa Bay area; some of these outsiders probably are among the approximately 100 who are members by virtue of SOBAC's reciprocity agreement with another association called "Friends of the River." SOBAC has never surveyed its membership to determine how its members actually use Tampa Bay. However, the evidence was sufficient to prove that a substantial number of its members, especially among those who reside in the Apollo Beach area, enjoy use of the waters and wetlands of the Big Bend area for recreational activities such as boating and fishing. For that reason, if the activities to be permitted by DEP in these proceedings were to cause environmental damage, a substantial number of SOBAC's members would be affected substantially and more than most residents of distant reaches of the Tampa Bay area. Background of Desalination Project In 1998, the predecessor agency to TBW (the West Coast Regional Water Supply Authority), the six Member Governments and SWFWMD entered into an agreement specifically addressing impacts to natural systems through the development of new, non- groundwater sources, and the reduction of permitted groundwater withdrawal capacity from TBW's eleven existing wellfields from the then permitted capacity of 192 million gallons per day (mgd) to 121 mgd by December 31, 2002 (the "Partnership Agreement"). Pursuant to the Partnership Agreement, the existing water use permits for TBW's 11 specified wellfields were consolidated into a single permit under which TBW is the sole permittee. Prior to execution of the Partnership Agreement, the existing permits for these 11 wellfields allowed for cumulative withdrawals totaling approximately 192 mgd. Upon execution of the Partnership Agreement, the consolidated permit immediately reduced allowed withdrawals to no more than 158 mgd and required that wellfield pumping from the 11 wellfields be further reduced to no more than 121 mgd by December 31, 2002, and then to no more than 90 mgd by December 31, 2007. These withdrawal reductions are necessary to reduce the adverse environmental impacts caused by excessive withdrawals from the 11 wellfields, the majority of which are located in Pasco County. In order to replace the reduction of groundwater withdrawals, TBW adopted a Master Water Plan that provides for the development of specified new, alternative sources of potable water. The seawater desalination facility ("Desal Facility") is one of the cornerstone components of the Master Water Plan. This Facility will furnish 25 mgd of new water resources for the Tampa Bay area and must be in service by December 31, 2002, in order to meet the potable water needs of the residents of the Tampa Bay area. In exchange for the groundwater withdrawal reductions, SWFWMD agreed to contribute up to $183 million towards the development of new water sources that are diverse, reliable and cost-effective. SWFWMD has agreed to co-fund up to 90 percent of the capital cost of the Desal Facility. To comply with the terms and conditions of water use permits it has received from SWFWMD for other water withdrawals in the region, TBW must increase the water sources from which it withdraws water for distribution to its Member Governments in a timely manner. The Desal Facility is the essential means by which these permitting requirements can be met. For the past two years, the Tampa Bay area has been experiencing historic low rainfall and drought conditions. The Desal Facility is supported not only by TBW and its Member Governments, but also by SWFWMD since it is a drought-proof source of supply which has the greatest ability of any new water supply source to allow TBW to meet its members' potable water supply needs while also reducing pumpage from the existing 11 wellfields. In addition to its being a drought-proof source of potable water supply, the Facility will also provide diversity and reliability for TBW's sources of supply, and is a source that is easily expandable to provide additional potable supply that may be necessary in the future. Prior to deciding to proceed with a desalination project, TBW conducted four separate studies to look at the potential individual and cumulative impacts of a desalination facility on Tampa Bay and the surrounding areas, and in particular to evaluate the changes in baywide salinity due to the desalination discharge alone and in combination with the river withdrawals occasioned by other projects. Commencing in 1997, TBW conducted a procurement process that culminated in the award in July 1999 of a contract to S & W Water, LLC, now known as Tampa Bay Desal, LLC, to design, build, own, operate, and eventually transfer to TBW a seawater desalination plant to provide potable water to Hillsborough, Pinellas, and Pasco Counties and to the Cities of Tampa and St. Petersburg for 30 years. TBD's Desal Facility is co-located with the Big Bend Power Station owned and operated by TEC on the northeast side of Hillsborough Bay, in Hillsborough County, Florida. By discharging the concentrate from the Desal Facility to the power plant cooling water prior to its discharge to the power plant discharge canal, environmental impacts from the concentrate are minimized, and disturbance of the discharge canal is avoided. The costs avoided by utilizing the existing intake and outflow from the TEC power plant are reflected in the lower cost of the water to Tampa Bay Water, and ultimately its Member Governments. TBW is contractually bound to TBD to purchase all of the potable water that is produced by the Desal Facility for distribution to its Member Governments and to purchase the entire Facility in the future. With the exception of the NPDES permit at issue, TBD has obtained all of the over 20 other permits which are required for the construction and operation of the desalination facility. TBD has already invested approximately $20 million in this project. The total estimated capital cost of the desalination facility is $110 million. TBD has obtained financing of $42 million and expects to acquire permanent financing in the month of October 2001. SWFWMD agreed to subsidize up to 90 percent of the capital cost of the desalination facility payable to TBW over the term of agreement with TBD. TBD is contractually bound to TBW to complete and fully operate the desalination facility by December 2002. TBD Desalination Process Overview of Process In the instant case, desalination is performed through reverse osmosis ("RO"), a mechanical process wherein pretreated water under very high pressure is pressed against a very fine membrane such that only pure water can pass through it. The vast majority of salt molecules and other substance are eliminated from the water. The RO process is not heat or chemical driven. No additional heat load is being added as a result of the desalination discharge, and the desalination plant will actually result in a reduced heat load to the bay. The desalination facility will withdraw approximately 44.5 mgd of raw water from Units 3 and 4 of TEC's Big Bend cooling water system, produce approximately 25 mgd of product water for transmission to the regional water supply system, and discharge approximately 19.5 mgd of clarified backwash and concentrate water equally into each of the power plant cooling water tunnels for dilution and release into the discharge canal. During abnormal power plant operations including times when Units 3 or 4 are not in operation and during the summer months when the normal supply water intake temperature exceeds the operating temperature range of the RO membranes, a portion of the source water will be withdrawn from an auxiliary supply water system. The auxiliary supply water system consists of a supply pump and pipeline that withdraws water from a location downstream of the fine-mesh screens for Units 3 and 4. The total combined bay withdrawal flow for the power plant and the desalination facility cannot exceed 1.40 billion gallons per day ("bgd"). This limitation ensures that entrainment does not exceed the levels previously permitted for the site, and a new entrainment study pursuant to Section 316(b) of the Clean Water Act is not required. Pretreatment Process The desalination intake water is pretreated in a two- stage gravity filtration process with chemical additives. During pretreatment, ferric sulfates will be added to the desalination intake water to coagulate and capture suspended solids, organic material, and metals that exist in the raw water supply. In this first stage of the pretreatment process, the intake water runs through an aerated course sand filter. Aeration enhances the coagulative process and assists in the capture of organics, suspended solids, and metals. Aeration also occurs in stage two, which uses a fine sand filter pretreatment process. The backwash water from stage two recirculates to the stage one treatment process. The pretreated waters exits through a five micron cartridge filtration prior to entering the RO process. The aerated pretreatment filter backwash water from the pretreatment stage one pretreatment will be sent to a discharge sump for initial settling and then to a clarifier and filter press to remove excess water. Approximately 14 wet tons a day which includes organics, suspended solids, and metals that are removed through the coagulative process and captured from the gravity filters are removed off-site to a landfill. The desal concentrate and clarified backwash water will be combined in a discharge sump or wet well prior to entering into a discharge line manifolded to equally distribute the concentrate discharge into all of the available cooling water outflow tunnels or conduits of the power plant discharge. Reverse Osmosis Membrane Treatment The RO desalination process consists of a two-stage pass of the pretreated water through the reverse osmosis membranes. The RO pumps will force the water through the RO membranes at pressures ranging from 600 to 1000 pounds per square inch (psi). As a result of the RO process, approximately 25 mgd of purified water, also known as permeate, will be produced for delivery to TBW. TBD anticipates cleaning its membranes twice per year, perhaps less, due to the high level of pretreatment. Periodic cleaning removes silt and scale from the membrane surface. Dilute solutions of citric acid, sodium hydroxide, sulfuric acid, sodium tripolyphosphate, or sodium dodecyclbenzene compromise the constituents of various cleaning solutions, with the actual cleaning solution used dependent upon the actual performance of the system once it is placed in operation. Once the cleaning cycle is complete, the spent cleaning solution will be purged from the feed tank, membrane vessels, and piping and diverted into a scavenger tank for off- site disposal. Clean product water (permeate) will be fed to the feed tank and pumped into the RO membrane vessels. This process will continue until the pH of the purge water meets the Class III marine water quality criteria. The membranes will be rinsed with brine concentrate and permeate, and the rinse water will be directed to the wet well for discharge, with the concentrate into the TEC cooling water stream. TBD determined the chemical characterization of the membrane cleaning solution discharge. Cleaning solutions are not discharged in detectable concentrations. As further assurance, the permit requires toxicity testing immediately after membrane cleaning. Dilution of Discharge Water Co-locating the desalination facility with TEC's Big Bend power station allows the desalination concentrate to be diluted with TEC's cooling water prior to discharge into Tampa Bay. The point of injection of the desalination discharge will be located approximately 72 feet upstream of the point of discharge to the discharge canal to ensure complete mixing of the desalination concentrate with TEC's cooling water. This provides reasonable assurance that the desalination discharge will be completely mixed within the cooling water conduits. If all four TEC units are in operation and TBD is producing 25 mgd of finished water, the approximate dilution ratio of the desalination concentrate with TEC cooling water is 70:1. Historical TEC data indicates that a dilution ration of greater than 20:1 will occur more than 99.6 percent of the time, and a dilution ration of greater than 28:1 will occur more than 95 percent of the time. The dilution limitations in the proposed permit are more stringent than those required in Rule 62-302.530(18). The permitted dilution ratio complies with Rule 62- 660.400(2)(d) because it takes into account the nature, volume, and frequency of the proposed discharge, including any possible synergistic effects with other pollutants which may be present in the receiving water body. Comparisons of the Antigua, Key West, and Cyprus facilities are not applicable because those desalination facilities lack the initial dilution that will exist at TEC's Big Bend site. The proposed permit requires a 20:1 minimum dilution ratio at any given time, which may occur for no more than 384 hours per calendar year, and with the further limitation that the discharge at the 20:1 minimum dilution ratio shall not exceed 384 hours in any given 60-day period. At all other times, a minimum dilution ratio of 28:1 must be maintained. To ensure proper dilution and system operation, computer instrumentation in the desal facility will interface with TEC to continuously monitor the operations of TEC's four cooling tower condenser units. If any of the pumps shut down, an alarm will sound at the desalination facility and the computer system will automatically shut down the concentrate discharge to that specific condenser unit discharge tunnel. Further, the desalination plant will employ approximately 12 employees, with a minimum of two employees on duty at all times. TEC Permit Modification Big Bend power station has four coal-fired steam electric generating units. The power station is cooled by water that is taken in from Tampa Bay through two intake structures which are located along TEC's intake canal. One intake structure feeds cooling water to electrical power units 1 and 2 and the other feeds units 3 and 4. After flowing through the condensers, the cooling flows are combined into four separate discharge tunnels which outfall into TEC's discharge canal. The intake structure for Units 3 and 4 is equipped with fine-mesh screens and an organismal collection and return system that has been approved for use by DEP. The purpose of TEC's permit modification is to alter the internal piping in the facility to accommodate the desalination plant at the Big Bend site. TEC's permit modification allows for placement of an intake pipe from TEC's cooling water pipes to the desalination plant and a return pipe downstream from the intake pipe for the return of the desalination concentrate to TEC's cooling water discharge tunnels prior to outfall in the discharge canal. TEC's permit modification also allows for the placement of an auxiliary intake line by TBD to take additional water from behind the intake of units 3 and 4 up to TEC's maximum permitted limit of 1.4 billion gallons a day. The TEC proposed permit is conditioned to require TEC to maintain the structural integrity of both the steel sheet pile wall on the discharge canal and the breakwater barrier North of the discharge canal. TEC's permit modification does not request any changes to the operations of the Big Bend Generating Station. SOBAC Issues and Concerns SOBAC raised numerous issues and concerns in its petitions in these cases and in the Pre-Hearing Stipulation. However, some issues were elimination by rulings adverse to SOBAC during prehearing proceedings and final hearing. Based on the evidence SOBAC sought to elicit at final hearing and issues raised in its Proposed Recommended Order, other, earlier SOBAC issues and concerns appear to have been dropped. Remaining are essentially the following: increased salinity due to TBD discharge; alleged decreased dissolved oxygen (DO) from higher salinity; impacts of higher salinity and alleged decreased DO on marine plants and animals; alleged release of metals from sediments due to higher salinity and alleged lower DO, and effects on marine plants and animals; alleged monitoring deficiencies; alleged failure to utilize available technologies to lower salinity and raise DO; alleged deficient financial assurances; and various alleged resulting DEP rule violations. Description of Tampa Bay: Physical Properties The portion of Tampa Bay and Hillsborough Bay near the Big Bend facility is classified a Class III water body. Tampa Bay is a naturally drowned river valley, meaning that a deep channel exists as a result of natural forces. However, the channel has been deepened to 45 feet or greater to allow large ships to navigate the bay. This deepening of the channel increases the water flow of the head of the bay with the open gulf waters and allows this residual circulation to move more new water from the open Gulf of Mexico up into the bay. Ordinarily, circulation moves salt water up Tampa Bay and spreads it out onto the flanks of the bay where it then mixes with the freshwater. To complete this circulation, the water then flows back out towards the mouth of the bay, primarily along its flanks and shallower parts in the upper part of the water column. The water in Tampa Bay tends to flow faster in its deeper parts, both coming in and going out, and relatively slower in the shallow areas. The majority of flow of freshwater inflow occurs at the bay's flanks as can be seen very clearly in the salinity distributions. Mixing and Stratification Since the development of Tampa Bay from the 1880 condition to the 1972 and 1985 conditions, there is more mixing and exchange of water. Due to shoreline fills for development, such as Apollo Beach, there is less water that now comes in the bay than in the predevelopment condition. Tampa Bay is a fairly well mixed system from top to bottom. This is because the action of the tides basically acts like a big mix master. The bay is fairly shallow, less than four meters in depth on average. The tidal velocities can be as strong as two knots or about a meter per second. When the strong velocity pushes through shallow water, there is extensive overturning, where the bottom water is churned to the top and gets mixed very efficiently. That is very well seen in the observations during dry periods. Over 100 points in Tampa Bay were measured for temperature and salinity top, middle and bottom, and showed that they were very uniform throughout the bay. During periods of large volumes of freshwater input into Tampa Bay, freshwater is pumping into the bay faster than the tidal mixing can mix it from top to bottom. Therefore, in parts of Tampa Bay significant stratification is seen during many times in the wet season. During those times when rainfall is not as prevalent, tidal mixing once again dominates and the bay returns to a more well mixed system. The average tidal fluctuation for Tampa Bay is a range of two to three feet. Salinity As the tide in Tampa Bay comes in, it brings saltier water from the mouth of the bay toward the head of the bay, causing salinities to rise. As the tide recedes, bringing out fresher water from farther up the bay, salinities decrease. Over an individual tidal cycle, particularly during the wet season, a four or five part per thousand ("ppt") change in salinity will occur between a rising tide and a falling tide. During the dry season, tidal flushing is not as significant to salinity levels because not much difference exists in salinity from the head of the bay to the mouth of the bay. Even during the dry season, there is a one to two ppt change over a six to twelve-hour period in any given day. During the dry periods in 1990, salinities elevated up to about 33 ppt, with very little stratification. During the rainy periods, in June and July, salinities dropped rather drastically. In some areas, salinity dropped as low as to 20 to 22 ppt. However, in spite of these drastic seasonal differences, significant variation in salinity occurs as a result of tidal exchange. The Big Bend area is split by the dividing line between Hillsborough Bay and what has been classified Middle Tampa Bay. The salinity for Hillsborough Bay from 1974 through June 2001 at the surface ranges from 0.4 ppt to 38.2 ppt. The middle portion of the same water column contained a range from 2.5 ppt to 39.2 ppt, and the bottom portion showed a range from 3.9 ppt to 37.2 ppt. The average salinities during this time frame were as follows: top 24.2 ppt, middle 24.3 ppt and bottom 25.3 ppt. In the portion of Tampa Bay called Middle Tampa Bay, the surface level salinity ranged from 6.8 ppt to 38.2 ppt. At middle depth, salinities ranged from 7.4 ppt to 38.8 ppt. The bottom level salinities ranged from 11.9 ppt to 39.6 ppt. This is a large range of salinities. Tampa Bay near the Big Bend Area In the area near the Big Bend facility, the Mote Marine Laboratory survey data reflects that the salinity during May and June 2000 reached 33.4 ppt. Further, Mote Marine Laboratory data showed that the North Apollo Embayment area salinities were well mixed vertically throughout the system. The total volume of water exchanged into the North Apollo Embayment and associated canals during a mean tide is approximately 35 percent of the total volume of all water contained in that area. This tidal exchange occurs twice per day. The double diffusion process does not create high salinity in the bottom of the water column in the North Apollo Embayment. The double diffusion process, without any external influence, would lead to both surface and bottom layers of the water column reaching salinity equilibrium. Further, the turbulent mixing that occurs due to tidal processes and wind- induced mixing dominates over the double diffusion process. The Mote Marine Laboratory study conducted between May and early June 2000 did not detect any significant salinity stratification in the area near the Big Bend facility. Vertical stratification of salinity does occur but typically only during the periods of significant freshwater inflow and not in extreme drought or dry conditions. None of the Mote Marine Laboratory data detected any pockets of high salinity water or significant density stratification in the North Apollo Embayment. Estuarine Characteristics Tampa Bay is an estuary. Estuaries are semi-enclosed bodies of saltwater that receive freshwater runoff from drainage or riverine inflow, which measurably dilutes the salinity levels in the estuary. As a result, salinity levels in estuaries typically are highly variable, ranging from 0 ppt where rivers flow into estuaries, to as high as 40 ppt under conditions of low freshwater input or at estuarine mouths where they connect to the sea. There are naturally occurring dissolved oxygen levels below 4.0 mg/l in parts of Tampa Bay, including at Hillsborough County Environmental Protection Commission ("EPC") monitoring stations 9, 80, and 81, which are the closest stations to the proposed discharge. Dissolved oxygen in the bay decreases at night because photosynthesis ceases and respiration exceeds production. Other environmental parameters are also highly variable in estuaries. Therefore, the organisms that inhabit estuaries have adapted to tolerate these highly variable conditions. Estuarine organisms have adaptive means for tolerating changing salinity levels, either by conforming their internal salinity levels to the ambient salinity levels, or by actively regulating their internal salinity levels by intake or excretion of salt. Organisms that are adapted to tolerate a wide range of salinities within the estuary are termed euryhaline organisms. Essentially all of the common organisms in estuaries, including the Tampa Bay estuary, are euryhaline organisms, and therefore are capable of tolerating and living in a wide range of salinities and salinity changes that occur due to tidal, meteorological, and other natural forces in the estuarine environment. Extensive baseline biological studies performed on Tampa Bay reveal that the most common species in the Tampa Bay estuary tolerate salinity levels ranging from 5 ppt to 40 ppt. Seagrasses Five species of seagrass inhabit Tampa Bay. Seagrasses are photosynthetic underwater flowering plants that are typically limited in occurrence and distribution by the water clarity. This limits the depth at which seagrasses can grow. In Tampa Bay, seagrasses are limited to the fringes of the Bay, and are largely limited to depths of approximately three feet, although they can live in depths of up to six feet in clearer parts of the Bay. Seagrasses are very sensitive to increases in nutrients, like nitrogen and phosphorus. These nutrients encourage algae growth, resulting in competitive stress in seagrasses. Due to poor water quality caused by sewage discharge, dredging and filling, and other activities in the Bay, seagrass distribution in Tampa Bay decreased from an historic coverage of approximately 80,000 acres in 1950 to approximately 20,000 acres by 1982. Improvements in water quality, largely due to sewage treatment improvements, have allowed seagrasses to naturally recolonize to approximately 27,000 acres coverage, as of 1994. Wave energy affects seagrass distribution. Seagrasses cannot colonize and survive in areas subject to significant wave energy. For example, the portion of Tampa Bay dredged and filled to create the Apollo Beach "hammerhead" area was once comprised of a broad shallow-water shelf that diminished wave energy, allowing dense seagrass flats to cover the shelf area. Destruction of the broad shallow-water shelf with fill to create the Apollo Beach hammerhead has converted the area to a high wave energy system that is unsuitable for seagrass colonization and growth. Consequently, the only seagrasses inhabiting the Big Bend area are found approximately one kilometer north of the Big Bend power plant, in an area known as "The Kitchen," and approximately one kilometer south of the Apollo Beach hammerhead area. Additionally, there are ephemeral patches of seagrass inhabiting some limited areas of the North Apollo Embayment. Seagrasses are adapted to tolerate a wide range of salinities. They have specialized cells that enable them to deal with salt stress and with broad ranges of and fluctuations in salinity. These adaptations enable them to survive and thrive in estuarine environments. Of the seagrass species that live in Tampa Bay, one species, Ruppia maritima (widgeon grass), occurs in salinity ranges from zero to 40 ppt. Manatee grass, Syringodium filiforme, is most productive in salinities between 5 ppt and 45 ppt. The other three species, Halodule wrightii (shoal grass), Halophila engelmannii (star grass), and Thalassia testudinum (turtle grass), tolerate salinity ranges from approximately 5 ppt to 60 ppt. Seagrasses better tolerate higher salinity levels than lower salinity levels. Lower salinity levels are usually indicative of increased stream and land freshwater runoff, which usually is accompanied by increased turbidity and lower water clarity. Four of the five seagrass species that inhabit Tampa Bay typically reproduce asexually by producing rhizomes, rather than by flowering and producing seeds. It is not completely clear why seagrasses in Tampa Bay reproduce asexually rather than by flowering and seed production. However, recent research indicates that climatic temperature is the controlling factor for flower and seed production. In South Florida, where the climate is warmer, seagrasses reproduce by flowering and seed production. In Tampa Bay, the lower winter temperatures appear to be the limiting factor with respect to successful flower and seed production in seagrasses. Recent studies by the University of South Florida ("USF") marine laboratory indicate that naturally occurring fungal diseases may also limit successful flowering and seed production in seagrasses in Tampa Bay. Since most seagrass species that live in Tampa Bay tolerate and thrive in salinities of up to 60 ppt, the higher salinity levels in the estuary do not appear to adversely affect the ability of seagrasses to reproduce. In fact, the lower salinity levels, below 5 ppt, stress seagrasses and are more likely to adversely affect reproduction than do higher salinity levels. Mangroves Three major species of mangrove inhabit the Tampa Bay area: the red mangrove, black mangrove, and white mangrove. Mangroves inhabit the intertidal area, so they are subjected to daily tidal flooding and drying. Consequently, they must tolerate a wide range of variability in salinity levels and in water availability. Most mangroves tolerate soil salinity levels up to 60 ppt, close to twice the salinity of Tampa Bay. Mangrove mortality due to salinity does not occur until soil levels approach and exceed 70 ppt salinity. Mangroves are also adaptable to, and inhabit, freshwater environments. Phytoplankton and Zooplankton Plankton are life stages or forms of larger organisms, or organisms that have no ability for major locomotion, so they spend their entire life spans floating and drifting with the currents. Plankton are extremely productive in that they reproduce in very large numbers within very short life spans. Holoplankton are planktonic organisms that spend their entire lives in planktonic form. Examples include diatoms, which are a type of phytoplankton, and copepods, which are a type of zooplankton. Meroplankton are "temporary" plankton that drift with the currents in juvenile or larval stages, then either settle out of the water column and metamorphose into an attached form (such as barnacles) or metamorphose into mobile life forms (such as crabs, shrimp, and fish species). Phytoplankton are planktonic plant species and life forms. Zooplankton are planktonic animal species and life forms. Zooplankton feed on phytoplankton. There are approximately 300 species of phytoplankton, and numerous species and forms of zooplankton, found in Tampa Bay. Most phytoplanktonic and zooplanktonic species inhabiting Tampa Bay are euryhaline species capable of tolerating the wide range of salinity levels and abrupt salinity changes that occur naturally in the estuarine system. Most phytoplanktonic and zooplanktonic species and life forms in Tampa Bay tolerate salinity levels ranging from zero to 40 ppt. They appear to be more tolerant of the higher end than the lower end of this salinity range. Manatee The manatee is the only endangered or threatened species identified by the Florida Natural Areas Inventory as inhabiting the area where the desalination plant is proposed to be located. Manatees congregate at the Big Bend Power Station during colder months because they are attracted to the power plant's warmer water discharge. Manatees are considered to be estuarine species, but they have very broad salinity tolerance ranges. They migrate into and out of freshwater springs, through estuaries, into the Gulf of Mexico, and down to the Ten Thousand Islands, where hypersaline conditions frequently exist. Manatees routinely expose themselves to and tolerate salinities ranging from zero to more than 40 ppt. Fish The fish populations in Tampa Bay are comprised of a large number of marine euryhaline species. Due to their ability to osmoregulate their internal salinity levels, these fish species can inhabit salinity ranges from 5 ppt to as high as 40 ppt. Extremely extensive monitoring and sampling programs are currently being conducted in Tampa Bay and specifically in the vicinity of the Big Bend Power Station. The Hillsborough County EPC, SWFWMD, TBW, the United States Geological Survey ("USGS"), the Florida Marine Research Institute, USF, and Mote Marine Laboratory conduct separate biological monitoring programs that sample and monitor numerous biological parameters, including invertebrate infaunal and epifaunal species composition, abundance, and distribution; zooplankton and phytoplankton species composition, abundance, and distribution; emergent and submerged vegetation species composition, abundance, and distribution; and fish species composition, abundance, and distribution. These monitoring programs, which collect and analyze biological data from many areas in the Tampa Bay estuarine system, extensively monitor numerous biological parameters in the Big Bend area. Testing and Modeling Pilot Plant Although DEP's rules do not require the use of a pilot plant to demonstrate reasonable assurances, TBD installed a desalination pilot plant at the Big Bend site in November 1999. The pilot plant matched the hydraulics and configuration of the full-scale facility on a 1/1000 scale. The pilot plant used water from the Big Bend power plant discharge as its source water. The purpose of the pilot plant was to confirm design requirements for the desalination facility and to provide samples of intake water, filtered water, pretreated water, concentrate, and finished water to use for chemical characterization and analysis. Using a pilot plant is superior to using data from engineering projections or data from a different desalination facility because the pilot plant provides data specific to the Big Bend site. Data from the pilot plant were used to establish various effluent and other limits in the permit. Chemical Characterization Intake water, filtered water, pretreated water, concentrate, and finished water from the pilot plant were analyzed for over 350 parameters chosen by DEP to determine chemical characterizations and water quality. The pilot plant operation provides extensive chemical characterization of intake and discharge water composition and mass loading. This information was key in providing accurate information on the chemical composition and mass loading of the desalination discharge concentrate. With this accurate information on the components in the discharge water, DEP was provided more than sufficient reasonable assurance on the potential effect of the chemical components of the discharge. TBD tested the pilot plant discharge water for copper, nickel, other heavy metals, and those chemical constituents specified on the DEP chemical characterization form. The chemical characterization tested for concentrations of constituents based on a 12.8 to 1 dilution ratio, and even at that dilution ratio, did not exceed any of the state water quality parameters. However, to provide additional assurance that there will not be an exceedance of state water quality standards, the permit requires a minimum 20 to 1 dilution ratio. Dissolved Oxygen Saturation Testing Temperature and salinity affect the saturation point of dissolved oxygen ("DO") which is lowest when temperature and salinity are highest. DO saturation charts, which are typically used to determine DO saturation points, are not applicable because those charts do not contain the saturation point of DO at a temperature of 109 degrees Fahrenheit and a salinity of 79 ppt, which represents the worst case conditions for the proposed desalination facility. Bench-scale testing was performed on the undiluted desalination discharge from the pilot plant by heating discharge concentrate samples to 109 degrees Fahrenheit and aerating the samples until the DO stabilized and reached saturation point. The pilot plant bench-scale testing determined that the saturation point of DO in the worst case desalination concentrate using a temperature of 109 degrees Fahrenheit and salinity of 79 ppt was 5.7 mg/l. Toxicity Testing TBD conducted acute toxicity testing using a worst case scenario assuming a diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. Acute toxicity testing evidenced no mortalities, showing that the proposed discharge will not be a source of acute toxicity. TBD conducted chronic toxicity testing on raw concentrate from the pilot plant using a worst case scenario diluted effluent of one part desalination concentrate to 12.8 parts of power plant cooling water. The No Observed Effect Concentration (NOEC) for raw concentrate was determined to be 100 percent and the NOEC for diluted effluent was determined to be greater than 100 percent. The evidence did not explain these concepts, but it was clear from the tests that the proposed discharge will not be a source of chronic toxicity. TBD conducted its acute and chronic toxicity testing using protocols reviewed and approved by DEP. TBD's toxicity testing was also consistent with accepted EPA standards. Assessment of Potential Environmental Impacts TBD prepared an Assessment of Potential Environmental Impacts and Appendices ("Assessment") to analyze the potential biological impacts of the desalination plant discharge into the Tampa Bay estuary. The Assessment examined numerous physical parameters to determine the baseline environmental conditions in the portion of Tampa Bay proximate to the proposed desalination plant site. Among the physical parameters examined in determining the baseline environmental conditions were: salinity; sediment size and composition; metal content in sediments; and numerous water quality parameters such as transparency, biochemical oxygen demand, pesticides, dissolved metals, and pH. Consistency with SWIM Plan As part of the permitting process, TBD was required to demonstrate consistency of the proposed desalination discharge with the SWFWMD's Surface Water Improvement and Management (SWIM) plan, pursuant to Rule 62-4.242. TBD submitted an extensive SWIM consistency analysis, which is sufficient to meet the consistency requirement. Water Quality Based Effluent Limitation Level II Study TBD performed a Water Quality Based Effluent Limitation (WQBEL) Level II study pursuant to Rule Chapter 62- 650 for the purpose of determining the effect of the desalination plant discharge on salinity levels in the vicinity of the desalination plant discharge. TBD had the Danish Hydrologic Institute ("DHI") use the data collected through the WQBEL Level II study in its near-field model of the Big Bend area. See Findings 105-117, infra. DEP also used the data and the DHI model results to establish the salinity and chloride effluent limitations in the permit. The USF Far-Field Model The far-field model was prepared utilizing the Princeton model code. The Princeton model is well recognized and is generally accepted in the scientific community. The goals of the TBD far-field model performed through USF by Dr. Luther and his team were to evaluate the change in bay-wide salinity due to the desalination plant discharge, both alone and in combination with changes in salinity due to enhanced surface water system withdrawals under new consumptive water use permits issued to TBW by SWFWMD to provide other, additional sources of needed potable water supply. The primary goal was to provide DEP with the best science possible of the potential real effects of this desalination discharge into Tampa Bay. The modeling system of Tampa Bay utilized in this analysis was developed beginning in 1989. Dr. Luther and his team have continued to make refinements to the model over the last 12 years. Dr. Luther took the modeling system he had developed over the years for Tampa Bay and did three primary model scenarios. The baseline case reproduced the observed conditions during the 1990 and 1991 years--a very dry period in 1990 and a fairly wet period for 1991--as accurately as possible with all the boundary conditions estimated from observations. This was to capture an entire range of conditions in Tampa Bay. The baseline was then compared with validation data and other observations to ensure it was approximating reality. The second simulated scenario included the same effects as the baseline with the added effect of the desalination intake and discharge at the Big Bend facility. The third case approximated cumulative effects from the TBW enhanced surface water system river withdrawals according to the proposed permit withdrawal schedules. For each test case, it was assumed that only two of the four cooling units at the TEC Big Bend plant were in operation for an entire two-year period, a worst-case scenario expected to occur less than four percent of the time in any given year. The model included data on water levels, temperature, and salinity throughout Tampa Bay. In addition, it takes into account wind blowing across the surface of Tampa Bay, rainfall, freshwater inflow from rivers, and other surface water and groundwater sources. The model was calibrated and validated against actual data to verify simulation of reality as closely as possible. The model was calibrated and validated utilizing Hillsborough County EPC and Tampa Oceanographic Project ("TOP") salinity data. Physical Oceanographic Real Time System ("PORTS") and TOP data on current flow velocity and water levels were utilized to calibrate and validate water levels and current. The acoustic doppler current profilers used in the model study are able to measure the speed at which the water is traveling and the direction at various levels above the bottom within the water column. The TBD far-field model very accurately reproduces the observed tidal residual velocities observed with the acoustic doppler current profilers. The far-field model reflects any stratification that would occur during the model simulations. The far-field model simulates recirculation that occurs between the discharge and intake water. Recirculation is small due to the model's use of the actual bathymetry of Tampa Bay. There are significant shoals and other features that separate the water from the discharge and the intake canal that preclude significant recirculation most of the time. After submitting the far-field model report to DEP, further study was performed on the far-field model that calculated residence time for Tampa Bay. One study dealt with "residence" or "flushing" time. The concept of "residence time" is not well-defined; put another way, there are many different accepted ways of defining it. It may be defined in a simplified manner as the time it takes a patch of dye to flush out of the bay. However, for purposes of the studies performed on the far-field model, theoretical "particles" in model grids were tracked, and "residence time" was defined as the time it would take for the number of particles initially in a grid cell to decrease to 34 percent of the initial number. Using this approach and definition, residence time in the vicinity of the Big Bend facility on the south side where the discharge canal is located was less than 30 days. Immediately offshore of the area of the discharge, the residence time reduced to less than 15 days. The study indicated that the area of the Big Bend facility has a relatively low residence time. In the model's baseline run (for the desalination plant impacts only), maximum differences in salinity occurred during the month of April 1991. Throughout the two-year time period, the maximum concentration of salinities did not increase from this point, and in fact decreased. The maximum average value for salinity difference is 1.3 ppt at the grid cell located directly at the mouth of the TEC Big Bend discharge canal. More than two grid boxes away in any direction and the value falls to less than 0.5 ppt increase in salinity. The maximum salinity of any given day for the far- field model was in the range of 2.1 to 2.2 ppt, which compares favorably with the DHI near-field model which showed an increase of 2.5 ppt. The salinity changes caused by the cumulative effects scenario are smaller than the natural variability during the wetter months in Hillsborough Bay in cells immediately adjacent to the concentrate discharge. Increases in salinity will occur in the vicinity of the discharge canal but will be very localized and small relative to the natural variability in salinity observed in Tampa Bay. At a distance of more than a few hundred meters from the mouth of the discharge canal, it would be difficult (if not impossible) to determine statistically that there would be any increase in salinity from the desalination concentrate discharge. Over the two years modeled, there is no trend of increasing salinity. No long-term accumulation of salt is evidenced within the model. Further, no physical mechanism exists within the real world that would allow for such a long- term accumulation of salinity in Tampa Bay. Dr. Blumberg's independent work verified the conclusions in the far-field model constructed by USF. Dr. Blumberg's estimated flushing times are consistent with those found in the far-field model. DHI Near-Field Model The TBD near-field model was prepared by DHI. DHI prepared a three-dimensional near-field model to describe the potential salinity impacts from the discharge of the proposed desalination plant. The DHI model is a state-of-the-art model whose physics are well documented. By model standards, the DHI near-field model is a high resolution model. The DHI model essentially "nests" within TBD's far-field model. The near-field area includes those areas that would be directly influenced by the combined power and desalination discharges, the North Apollo Embayment and the residential canal system adjacent to the discharge canal. The near-field model was designed to determine whether or not the desalination plant would cause continuous increases in salinity and to predict any increase in salinity in the North Apollo Embayment and the associated canal system. In addition, DHI evaluated the potential for saline recirculation between the discharge and the intake via short circuiting due to overtopping of the existing break water. In order to construct the near-field model, existing data on bathymetry, wind sources, meteorology and other parameters were examined and analyzed. In addition, the information from an intensive data collection effort by Mote Marine Laboratories on current velocities, temperatures, and salinities was incorporated into the model. TBD conducted bathymetric surveys in the residential canal areas, the North Apollo Embayment, and the area between the discharge canal and the intake canal. The model has a vertical structure of six grids and reflects vertical stratification that would occur in the system being modeled. The vertical grids in the model can detect a thermal plume one meter in depth (the size of the thermal plume from TEC's discharge). Information about the TEC thermal plume was incorporated into the model and utilized to calibrate the model's predictive capabilities. The model took into account interactions between the temperature plume and the salinity plume. The model predictions matched the measured temperature plume created by the TEC discharges quite well. The near-field model conservatively assumed a scenario in which only the two TEC units with the smallest total through-flow of 691.2 million gallons a day cooling water were active. DHI then assumed production of a maximum 29 mgd in product water. A salinity level of 32.3 ppt at the intake was utilized in the simulation. The model assumed a conservative wind condition which results in less mixing and dispersion of the plume. Further, wind direction tended to be from the southwest or west during the simulation, which tends to push the plume against the TEC break water which tends to reinforce recirculation. SOBAC witness Dr. Parsons agreed that these simulations for April and May 2000 constituted extreme conditions. DHI ran its model for a total time period of six weeks. The "warm up" for the simulation took place from April 15 to May 7, followed by the "calibration" simulation from May 8 to May 22. An additional validation sequence was run from May 25 to June 8. The production run was defined as the three weeks from May 8 to May 29, 2000. The intensity of the calculations performed in the near-field model due to its high spacial resolution and numeric restrictions make it computationally demanding. The calibration runs took approximately a week to 10 days to run on a state-of-the-art computer. From a computational standpoint, it is not practical to run the near-field model for a two-year time period. The model shows good agreement between its water levels and current velocity to observed data. The model reflects the recirculation of the discharge water that would occur in the system. The maximum salinity for the extreme case scenario in the near-field model is an increase in salinity of 2.5 ppt. With three condensers running, under the modeling scenario comparing the base condition to the desal discharge, there is a maximum difference of only 2.0 ppt. Further, there is no indication of any continuous build up of salinity in the near- field area due to the desalination plant discharge. DHI performed many sensitivity runs on the model, including one which examined rainfall conditions. The results of a two-inch rainfall analysis show that rainfall profoundly freshens the water in the near-field area. Since the modeling was done in a time period of extreme drought, with no freshwater inputs, the ambient or background salinity trended up over the time frame of May through June. As with any estuary, if freshwater inflow is removed, the estuary will get saltier until freshening occurs. Even with the model simulation period extended an additional 10 days beyond that reflected in TBD Ex. 1-O, the model results did not show any increase of salinity differences caused by the desal facility above 2.5 ppt. Based on data from field collections, the operation of the desal plant under worst case conditions did not exceed the assimilative capacity of the near-field environment. A 10 percent salinity change (3.23 ppt) was not reached in any grid cell. The Blumberg Study The "Environmental Impact Assessment for a Seawater Desalination Facility Proposed for Co-Location with the Tampa Electric Company Big Bend Power Generation Facility Located on Tampa Bay, Florida" authored by Norman Blake and Alan F. Blumberg ("Blumberg Study") is a hydrodynamic model study combined with an analysis of potential biological effects. The Blumberg Study was performed at the request of and presented to the Board of County Commissioners of Hillsborough County, Florida. Dr. Blumberg's model used 1998 and 1999 as its baseline, which consisted of an extremely wet year followed by an extremely dry year. The model assumed a scenario of two cooling units in operation pumping 656 mgd of discharge flow. The results of the Blumberg Study are very similar to the results of TBD's far-field model. In addition, the model ran for a 9-year period without any sign of ongoing build-up of salinity. After the two-year model run, the second year ran for an additional 7 simulated years for total model simulation period of 9 years. The Blumberg Study found salinity only increased by 1.4 ppt in the North Apollo Beach Embayment. In fact, the Blumberg Study showed no salinity build-up after the second year of the 7-year portion of the model simulation. The Blumberg Study found that the flushing time for the area near the Big Bend facility ranges from 4 to 10 days. The Blumberg Study applied a formula to predict potential DO saturation level changes. The analysis concluded a small change to DO saturation assuming full saturation on average of 7 mg/l. The Blumberg Study predicted that the desalination discharge would not lower actual DO levels below 5 mg/l. The Blumberg Study concluded that the marine ecology will not be affected by the desalination facility operation. Older Two-Dimensional Models of Tampa Bay Significant strides have been made in hydrodynamic modeling over the last 10 years, with the standard changing from two-dimensional models to three-dimensional models. Three-dimensional models provide more complete results than two-dimensional models. In the late 1970's through the late 1980's, modeling was constrained by the computing limitations of the time and could not examine the difference in water layers in a bay and potentials for currents going in different directions or speeds in different layers of the bay, as now done by state-of-the-art three-dimensional models. A two-dimensional model cannot accurately represent the tidal residual circulation in an estuary such as Tampa Bay, because it omits some of the critical physical forces that drive this type of flow. As the acoustic doppler current profiler showed, water flows in the top of the water column in one direction and flows in the bottom of the water column in a different direction. A two-dimensional model would average these flows over the entire vertical water column. In doing so, it would show much slower residual flow (and, therefore, longer residence time and a longer time to flush the system). SOBAC offered the testimony of Dr. Carl Goodwin, a civil engineer with the USGS. Dr. Goodwin provided testimony on two-dimensional model studies he did for the USGS in the late 1980's to assess the effects of dredging the shipping channel in Tampa Bay. Dr. Goodwin's studies, contained in SOBAC Exs. 69 and 70, suggested the existence of "gyres" in Tampa Bay. But no "gyres" have been observed, and it now appears that these gyres actually do not exist but are two- dimensional modeling artifacts, as shown by state-of-the-art three-dimensional modeling of Tampa Bay. In an earlier version of Dr. Luther's Tampa Bay model, an experiment was performed running the model in a vertically average mode to mimic the two-dimensional model. In this mode, the model was able to reproduce the "gyres" that Dr. Goodwin observed in his two- dimensional model. When the physical equations that related to pressure forces (baroclines) were reactivated in the three- dimensional model, the "gyres" disappeared. In addition, this experiment showed that the two- dimensional model simulation showed residence times an order of magnitude longer as compared to the full three-dimensional simulation. This means that residence time would be 10 times longer in the two-dimensional model than in the three- dimensional model, which takes into account baroclinic forces. Subsequent to the publication of his modeling studies (SOBAC Exs. 69 and 70), Dr. Goodwin found that it would take approximately 110 days for water to travel from the mouth of the Hillsborough Bay to the mouth of Tampa Bay in 1985. This calculation by Dr. Goodwin was not subjected to peer review or the USGS process. However, dividing the 110-day time period with correction factor of 10 discussed above, Dr. Goodwin's corrected estimate would predict an 11-day period for transport of water from Hillsborough Bay to the mouth of Tampa Bay--similar to the Blumberg Study and far-field model results. Opinions of Other SOBAC Experts Besides Dr. Goodwin, SOBAC also elicited some general opinions regarding the combined thermal and salinity plume from Dr. Mike Champ, called as an expert in the areas of environmental biology and chemistry, and from Dr. Wayne Isphording, called as an expert in sedimentology and geochemistry. In part, Dr. Champ based his opinion on a misunderstanding that Tampa Bay is not well-mixed or well- circulated at the location of the Big Bend power plant. In this respect, Dr. Champ's testimony was contrary to all the evidence. Even the "gyres" suggested by Dr. Goodwin's two- dimensional model studies would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. To the extent that the opinions of Dr. Champ and Dr. Isphording differed from the modeling results, they are rejected as being far less persuasive than the expert opinions of the modelers called by TBD, who spent far more time and effort studying the issue. Compliance with Dissolved Oxygen Standard Oxygen is a gas which can dissolve in water to some degree. There are two measurements of DO in water: saturation point and actual level. The saturation point of DO in water equates to the maximum amount of DO that water will hold. The actual level of DO is a measurement of the oxygen in the water. Since the saturation point is the maximum amount of DO that water will hold in equilibrium, the actual level of DO in water is typically equal to or lower than the saturation point. Desalination will affect the saturation point of DO to the extent that it increases salinity. Increased salinity decreases the saturation point of DO because it lowers the potential for water to hold oxygen. But desalination would not affect the actual level of DO in the water if the saturation point remains above the actual level of DO in the water. TBD determined that in the worst case scenario using undiluted desalination discharge, the lowest possible saturation point of DO would be 5.7 mg/l. If the actual level of DO is above 5.7 mg/l, desalination may lower that actual level of DO to 5.7 mg/l. If the actual level of DO is below 5.7 mg/l, desalination will not lower the DO. Since TBD will aerate the water in the pretreatment process, if the actual level of DO is below 5.7 mg/l, the actual level of DO in the discharge water will be increased. The permit DEP proposes to issue to TBD requires that DO at the point of discharge from the RO plant meet the following: that instantaneous DO readings not depress the intake DO when intake DO is at or below 4.0 mg/l, and that they be greater than or equal to 4.0 mg/l when intake DO is greater than 4.0 mg/l; that 24-hour average readings not depress the 24-hour average intake DO when the 24-hour average intake DO is at or below 5.0 mg/l, and that they be greater than or equal to 5.0 mg/l when the 24-hour average intake DO is greater than 5.0 mg/l. The evidentiary basis for SOBAC's argument that the proposed permit's DO limitation allowed violations of state water quality standards was the testimony of Dr. Champ. But it was evident from his testimony that Dr. Champ was not even aware of the effluent limitations until they were pointed out to him at final hearing. Nonetheless, and although Dr. Champ barely had time to read the DO limitations, Dr. Champ immediately opined that the proposed DO limitations virtually invited water quality violations. He dismissed the permit language out-of-hand as being "loosey-goosey," "fuzzy-wuzzy," and "weasel-like." Actually, there is no conflict between the proposed permit's DO limitations and the water quality standards and water quality criteria in DEP's rules. Other witnesses, particularly Tim Parker of DEP, properly compared the language in the permit with DEP's rules containing water quality standards and water quality criteria. Mr. Parker pointed out that the rules must be read in harmony with each other. Rule 62-302.530(31) contains DO water quality criteria and requires that the "actual DO shall not average less than 5.0 in a 24 hour period and shall never be less than 4.0." Rule 62-302.300(15), a water quality standard, states: Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having a water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. Mr. Parker testified that the "natural conditions" referred to in Rule 62-302.300(15) are those found in the intake water to the desalination facility. TBD will not violate either the water quality criteria or the water quality standard for DO. If the actual level of DO in the intake water is less than 5.0 mg/l, TBD will not decrease the actual level of DO in the water below 5.0 mg/l because the actual level of DO is below the worst case saturation point of 5.7 mg/l. The water quality standard in Rule 62-302.300(15) does not prohibit discharges having DO levels below 4.0 mg/l when that discharge does not cause or contribute to existing DO violations. TBD will not cause or contribute to existing DO violations because if the level of DO in the intake water which is the natural condition is less than 4.0 mg/l, TBD will not decrease the actual level of DO in the water. To the contrary, the desalination process will increase the actual level of DO whenever it is below 5.0 mg/l. TBD has provided reasonable assurance that the proposed desalination discharge will not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15) because the desalination process will not decrease the actual level of DO below 5.0 mg/l. SOBAC argued that DO levels will drop between intake and discharge as a result of desalination. Some of this argument was based on the testimony of Dr. Mike Champ, one of SOBAC's expert witnesses. But Dr. Champ's testimony on this point (and several others) is rejected as being far less persuasive than the testimony of the expert witnesses for TBD and the other parties. See Finding 196, infra. SOBAC's argument apparently also was based on a fundamental misapprehension of the results of the Blumberg Study, which SOBAC cited as additional support for its argument that desalination will decrease DO at the discharge point. The Blumberg Study only spoke to desalination's effect on DO saturation concentrations, not to its effect on actual DO levels. (In addition, contrary to SOBAC's assertions, the Blumberg Study did not model DO saturation concentrations but only inferred them.) pH The pilot plant measured and analyzed the potential for pH changes in the desalination process and demonstrated that the desalination process reduced pH by no more than a tenth of a pH unit. pH ranges in natural seawater from top to bottom change over one full pH unit; a tenth of a pH unit change would be well within the natural variation of the system. TBD has provided reasonable assurances that the proposed desalination discharge will not violate Rule 62- 302.530(52)(c), which requires that pH shall not vary more than one unit above or below natural background of coastal waters, provided that the pH is not lowered to less than 6.5 units or raised above 8.5 units. Limitations for pH in the permit ensure compliance with Rule 62-302.530(52)(c) at the point of discharge to waters of the state. Temperature Nothing in the desalination process adds heat to the discharged water. To the contrary, the desalination process may dissipate heat due to the interface of the intake water with the air surface in the pretreatment process. Further, the effect of removing 25 mgd of heated cooling water as desal product water reduces the heat load coming out of the TEC plant cooling water discharge by that same 25 mgd. Temperature readings taken as part of the pilot plant study confirm a slight decrease in temperature across the desalination process. Metals The pretreatment process employed by TBD will result in a reduction in metals in the treated water. Ferric sulfate is added to the intake water upstream of the sand filters in the pretreatment process to precipitate metals into solid material which can be captured by the sand filters. Adding ferric sulfate in the pretreatment process results in a net reduction in the total mass load of metals in the discharge water. Initial calculations in the permit application that 104 pounds of ferric sulfate were being discharged in the desalination concentrate were based on using 20 mg/l of ferric sulfate and a conservative estimate of 95 percent settling of solids, with 5 percent of the ferric sulfate being discharged in the desalination concentrate. Further testing through the pilot plant revealed that coagulation optimizes at 9 to 14 mg/l of ferric sulfate with 97.5 percent of the solids settling, resulting in only 2.5 percent (52 pounds) of the ferric sulfate being discharged per day. The desal facility discharge of iron is minute in comparison to naturally occurring metals within the surface water flowing into Tampa Bay from the Hillsborough and Alafia Rivers. Increases in iron due to ferric sulfate addition are predicted to result in a diluted discharge in which the iron level is still below Class III marine surface water limitation of 0.30 mg/l. Even SOBAC witness Dr. Isphording confirmed that there are no concerns caused by metals that TBD is adding during the process. Discharge Effect on Metal Absorption/Desorption Dr. Isphording limited his concerns to the reaction of higher salinity, DO, and redox to the sediments already contained within the area beyond the discharge point. Dr. Isphording admits that he cannot quantify what the potential release of heavy metals would be due to these factors. Absorption of metals occurs when an organic or clay particle attracts to its surface a metal. Biota do not obtain metals if the metal is held in sand or silt size particles. Biota, be they plant or animal, in most cases obtain the metals they receive from tiny particles that are suspended in the water called microparticulate material. Microparticulate material is generally referred to as colloidal phase. Typically, this phase is on the order of a tenth of a micron in size. Biota obtain metals only if they are present at clay- size particles. Only 10 percent of the quantity of metals that are theoretically available to the biota in a given environment is actually absorbed in tissues. Salinity Has Little Effect on Metals Salinity does not exert a controlling influence on absorption/desorption reactions except at very low salinities. If the salinity is zero, which is essentially a pure freshwater environment, and the salinity level then rises 3 ppt, there would be profound changes in the metal loads, for example, where rivers meet estuaries or seawater. When salinity levels in the water are on the order of 25 ppt, small salinity perturbations such as 2.5 ppt will have a very small effect on absorption/desorption reactions. In fact, the influence can be either positive or negative, but in general they are going to be quite small. Potential releases or gains of metal from salinity changes of 2.5 ppt, at the area of the discharge canal, would be difficult to predict, and it is uncertain whether the change would be positive or negative. pH Will Have Virtually No Effect on Metals Although SOBAC witness Dr. Isphording knew of no change to pH caused by the desalination process, he testified to the alleged effect of lowered pH on the metal in the sediments and water column. Only large pH differences can have a significant influence on absorption or desorption of metals. Any effect on absorption from a decrease in pH on the order of a tenth of a pH unit will be hidden within the natural variations of the estuarine system. See Finding 140, supra. Effect of Lower Oxygen Levels on Metals Redox is basically an oxidation-reduction phenomenon. In order for the low levels of oxygen to have a reducing effect resulting in a release of metals from sediments, virtually all of the oxygen would have to be removed from the water. Basically, the environment would have to reach anoxic conditions. Even then, some metals such as copper would remain within the sediments. In an oxygen-buffered system, redox perturbations will not significantly or measurably mobilize metals. Sediments can be oxidizing in the upper part and then generally become more reducing at depth. The area near the desal discharge does not have organic-rich deep sediment. Proposed Discharge Effect on Bioavailability of Metals The proposed desalination plant's discharge will not increase the bioavailability on metals above that of natural variations and any changes would be hard to discern or measure. Nor will there be any appreciable accumulation of metals in sediments in the receiving water resulting from the proposed desalination discharge. DEP has not established any sediment quality standard and monitoring of sediments is not a NPDES requirement. The desalination plant does not result in violations of Class III marine surface water criteria and standards. No Synergistic Effects Caused by Discharge There are no synergistic effects from the proposed discharge wherein the combination of two elements such as temperature and salinity together would create a new effect. Instead, pH, redox, salinity, and temperature may have small, immeasurable effects that may offset each other. No Adverse Impacts to Biota Comprehensive species lists of phytoplankton, zooplankton, benthic macroinvertebrates, fish, aquatic flora (including seagrasses and mangrove species), and threatened or endangered species inhabiting the area were prepared based on extensive review of applicable scientific literature on Tampa Bay. The salinity tolerance ranges of these species were determined through extensive review of information on salinity ranges associated with species capture, laboratory studies, review of studies addressing species types and salinity tolerances in hypersaline estuaries, and species salinity tolerances determined for other desalination projects. When background salinity is above 10 ppt, changes in salinity of a few ppt have no effect on most organisms. Lower salinities are more detrimental than high salinities to most marine organisms, as long as the upper limit does not exceed a value of approximately 40 ppt salinity. Most planktonic species and life forms can tolerate salinities of up to 40 ppt. Mangrove and seagrass species living in the area can tolerate salinity levels as high as 60 ppt. Benthic macroinvertebrates in the area routinely experience, tolerate and survive in salinity levels ranging from approximately 6 ppt to over 39 ppt under natural environmental conditions. Fish species in the area routinely experience and tolerate salinity levels as high as 39 to 40 ppt under natural environmental conditions. Estuaries serve as fish nurseries because fish species lay their eggs in estuaries, and the larval and juvenile life stages live and mature in estuaries. Due to extreme range of conditions that naturally occur in estuaries, fish reproductive strategies have adapted to enable fish eggs and larval and juvenile life stages to tolerate the wide range of natural conditions, including ranges in salinity levels, that are endemic to estuaries. Egg, larval, and juvenile fish stages may be better able to tolerate extreme range of salinities than adults life stages. A 2.5 ppt increase in salinity and the permitted maximum increase of 10 percent above the intake chloride level is within the range of tolerance and variability that seagrasses, mangrove species, benthic macroinvertebrates, biota, fishes, manatees, zooplanktonic and phytoplanktonic species, and other organisms and life forms living in Tampa Bay routinely encounter and tolerate in the natural environment. A 2.5 ppt increase in salinity with the maximum permitted salinity discharge limit of 35.8 ppt of salinity and the permitted maximum increase of 10 percent above the intake chloride level will not adversely affect the survival or propagation of seagrasses, mangroves, benthic macroinvertebrates, biota, zooplankton, phytoplankton, fish, fish eggs, or juvenile life stages of fish species, or other organisms or life forms in Tampa Bay, and specifically the portion of Tampa Bay in the vicinity of the desalination plant discharge. The Shannon-Weiner Index, which is a biological integrity index codified at Rule 62-302.530(11), requires that the index for benthic macroinvertebrates not be reduced to less than 75 percent of established background levels. Since there will be no adverse impacts to benthic macroinvertebrates due to the desalination discharge and since the level of salinity increases anticipated will tend to benefit benthic macroinvertebrates population, TBD has met the criterion in Rule 62-302.530(11). The Mote Marine Laboratory data showed that Tampa Bay experienced a 2.0 ppt change in salinity over the course of one month. No fish kill or observable die-offs of species were observed or reported from this natural occurrence of elevated salinity. The desalination discharge will (1) not adversely affect the conservation of fish and wildlife, including endangered species, or their habitats, (2) not adversely affect fishing or water-based recreational values or marine productivity in the vicinity of the proposed discharge, (3) not violate any Class III marine water quality standards, and (4) maintain water quality for the propagation or wildlife, fish, and other aquatic life. The desalination discharge meets the antidegradation standards and policy set forth in Rules 62-4.242 and 62- 302.300. Discharge Disposal Options Analyzed As part of the permitting process, TBD demonstrated that the use of land application of the discharge, other discharge locations, or reuse of the discharge was not economically and technologically reasonable, pursuant to Rule 62-4.242. TBD submitted a sufficient analysis of these options as part of its Antidegradation Analysis. (TBD Ex. 1G; TBD Ex. 200, Fact Sheet, p. 16). Further Protection in the Permit The permit review of the desalination permit application is one of the most thorough ever conducted by DEP. The proposed permit has conditions which create and provide a wide margin of environmental protection. The permit sets effluent limitations of various constituents which are reasonably expected to be in the desal facility discharge and provides for monitoring programs to ensure compliance with those effluent limitations. The monitoring requirements of the proposed permit exceed the monitoring requirement imposed on other facilities in the Tampa Bay area. Effluent Limitations DEP established effluent limitations using the Class III marine state water quality standards, data provided from the pilot plant regarding the chemical characterization, the modeling conducted by DHI and the University of South Florida, and the water quality data collection by Mote Marine Laboratory in connection with the establishment of the WQBEL. The effluent limitations contained in the permit are consistent with DEP rules. The proposed permit restricts TBD to the lesser of either the chloride limit of 10 percent above intake or the salinity limit of 35.8 ppt. There is no state water quality standard for salinity. The permit limit for chlorides complies with Rule 62- 302.530(18). The permit's additional requirement of a minimum dilution ratio has the effect of limiting chlorides to 7 percent above intake for 384 hours per year and 5 percent above intake for the remainder of the year and thus provides extraordinary assurance that the state water quality standard for chlorides will be met. Dr. Champ was SOBAC's primary witness in support of its argument that the proposed permit allows a discharge with excessive salinity. But it was apparent from his testimony that Dr. Champ misinterpreted the permit limitations for salinity. See Finding 196, infra. Dr. Champ conceded that the chloride limit of 10 percent above intake was appropriate but focused on the 35.8 ppt maximum, as if it overrode the chloride limitation. As found, the opposite is true. TBD will be limited to 10 percent above intake for chlorides even if the result is salinity far less than the daily maximum of 35.8 ppt. Dr. Champ also had concerns about comparing the discharge to intake chloride levels as not being representative of "normal background." He argued (as does SOBAC) for comparing discharge to chloride levels somewhere else in Middle Tampa Bay, nearby but far enough away to insure no influence from the discharge. But the modeling evidence provided reasonable assurance that there will not be a great deal of recirculation of discharge to intake and that the recirculation expected will not cause salinity to build-up continuously over time. The modeling evidence is accepted as far more persuasive than Dr. Champ's testimony. See Finding 196, infra. The only metals for which effluent limitations were established in the permit are copper, nickel, and iron because these were the only metals determined to be close to the state water quality standard levels by the pilot plant studies. The actual levels of such metals in the desalination discharge will be less than those in the pilot plant testing because the dilution ratio (12.8 to 1) used in the pilot testing is much higher than the minimum dilution ratio required by the permit (20 to 1). The permit effluent limitations for copper, nickel, and iron are based on, and comply with, DEP Rules 62- 302.500(2)(d) and 62-302.530(24), (39) and (45). The permit effluent limitations for Gross Alpha are based on and comply with the requirements in Rule 62- 302.530(58). Biological treatment of the desalination plant discharge concentrate is not required because it consists of seawater. Monitoring for Effluent Limitations DEP is able to separately determine TEC's compliance with its permit from TBD's compliance with the effluent limitations in the proposed desalination permit because of how the facility is designed and the monitoring is constructed. Monitoring requirements in the proposed permit were determined with reference to the probability of desal facility discharge exceeding specific water quality standards. DEP rules do not require monitoring for each and every constituent detected above background concentrations, only those which would probably exceed state water quality standards. The permit requires monitoring of effluent limitations at the intake to and discharge from the desalination facility and the calculation of the diluted effluent levels in the co-mingled discharge water. In order to calculate the effluent components in the diluted discharge water, continuous monitoring is performed on the TEC cooling water discharge rate of flow. Parameters of DO, conductivity, salinity, chlorides, copper, iron, nickel, radium, gross alpha, and effluent toxicity are measured at both intake and discharge pursuant to proposed permit. Monitoring of Intake Monitoring of the intake will be located, after interception off TEC Units 3 and 4, prior to entering the desalination plant. Using a sampling location of the intake to the desalination facility prior to filtering or chemical addition for background samples is consistent with the definition of "background" in DEP Rule 62-302.200(3). EPC Stations 11, 80, 81, 13, and 14 are not proper locations for background samples because salinity varies with tides and depth and those stations are too distant from the actual intake point. EPC station 9 is not a good location because it is closer to the discharge than the permit sample point. Monitoring of Discharge Monitoring of the discharge will take place in the wet well prior to discharge into TEC's cooling water discharge tunnels. This monitoring location is in compliance with Rule 62-620.620(2)(i) which provides for monitoring of effluent limitations in internal waste streams. Monitoring of the desal facility discharge concentrate in each of the four cooling water discharge tunnels is impractical due to the high volume of dilution and addition of four potential discharge locations. Once the desal facility concentrate is diluted by the TEC cooling water discharge, it is much more difficult to obtain accurate water quality testing for constituents at such minute levels. Monitoring of the Combined Discharge Concentrations Calculations determine the mixing ratios of the desalination concentrate with TEC's cooling water. Using the flow data from TEC, the calculations will accurately determine the water quality of the co-mingled discharge water. Compliance with Permit Effluent Limitations The proposed permit requires TBD to monitor constituents for which there are effluent limitations on either a daily, weekly or monthly basis, depending on the constituent. The frequency of monitoring for each constituent is based on comparing the expected levels of the constituent to the water quality standard and analyzing the probability of the desal facility discharge exceeding that standard. The monitoring provides additional assurances beyond the pilot plant studies, testing and modeling that no water quality standard will be violated. Continuous monitoring is not necessary to successfully monitor discharges. Monthly measurements are sufficient to determine compliance even for a daily permit level because the chemical characterization studies provide reasonable assurances that the desalination concentrate will not exceed the effluent limitations. Monthly monitoring provides further checks and balances to assure that the desalination discharge is in conformance with the effluent limitations and DEP rules. The EPA only requires that monitoring occur at least once a year. Conductivity provides a direct correlation to salinity and chlorides. Measuring conductivity provides salinity and chloride levels by basis of calculations and is typically used as a surrogate for monitoring chloride and salinity continuously. Salinity and chloride cannot themselves be measured continuously because they are measured by lab tests. The permit requires conductivity to be monitored continuously, not because DEP believed the desalination discharge would be near the chloride limitation, but rather to be extremely conservative. The permit conditions treat an exceedance of salinity or chlorides based on conductivity readings to be a violation of the permit effluent limitations for salinity and chlorides. TBD provided reasonable assurance to DEP that the proposed desalination discharge would not violate the DO water quality standards and criteria in Rules 62-302.530(31) and 62- 302.300(15). The permit condition requiring monitoring of DO provides verification that desal facility discharge will meet the DO water quality standards. Even SOBAC's witness Dr. Champ admitted that a continuous measurement for DO is not as valuable as random weekly samples. External Monitoring Programs The proposed permit requires TBD to develop and submit to DEP a Biological Monitoring Program to monitor seagrasses, benthic macroninvertebrates and fish populations to be consistent with existing Tampa Bay monitoring programs. This program will provide an effective means of monitoring the potential impacts of the desalination discharge. The proposed permit also requires TBD to implement a Water Quality Monitoring Program for three monitoring stations located proximal to the intake, the discharge and the North Apollo Beach Embayment which will monitor conductivity, salinity, DO and temperature continuously. These monitoring programs will provide additional ambient data to DEP. If the data indicate an exceedance or reasonable potential for an exceedance of water quality standards, DEP may reopen the permit in accordance with the reopener clause contained in the permit. These monitoring programs go beyond the requirements in DEP rules. Additionally, DEP does independent monitoring of NPDES discharges without notice and on a purposely unpredictable basis. Proof of Financial Responsibility Rule 62-620.301(6) addresses when DEP may require a permit applicant to submit proof of financial responsibility to guarantee compliance with Chapter 403, Florida Statutes. TBD's compliance history was taken into consideration during the permitting process. Adequate financial assurance were provided in the permit application. (TBD Ex. 1I). Further, the permit conditions added by the settlement agreement (TBD Ex. 470) provide for additional financial assurance beyond those that can be required by the NPDES program and DEP rules. Additional Comment on SOBAC's Evidence As already indicated, SOBAC elicited the testimony of several expert witnesses at final hearing to support its contentions. But none of SOBAC's experts spent a great deal of time studying TBD's desal project, especially compared to witnesses for the other parties. Mostly, SOBAC experts expressed general scientific principles that were not directly tied to specifics of the desal project or were very general expressions of concern. Often, SOBAC's experts were not familiar with all the efforts of experts offered by the other parties to address those very concerns. Except for Dr. Champ, no SOBAC expert opined that the proposed permits would result in violations of DEP statutes and rules. Some SOBAC experts expressed opinions that only would be relevant if there were insufficient assurances in proposed permits that DEP statutes and rules would not be violated. Statistical evidence presented was not particularly relevant. Dr. Goodwin As previously mentioned, Dr. Carl Goodwin was willing to provide testimony on work he did for the USGS, but he gave no expert opinions on the permits which are the subject of these proceedings. As also previously discussed, his two- dimensional model studies were constrained by computational limitations. Even so, his studies indicated that flushing in Tampa Bay was becoming more rapid in recent years. In addition, even if the "gyres" suggested by his two-dimensional studies actually existed, they would tend to promote mixing in Tampa Bay in area of the Big Bend power plant. Dr. Champ Dr. Champ's first opinion was that 35.8 ppt is too high a salinity limit and would result in "oceanic" conditions. He attempted to compare this result to results of diversion of substantial amounts of freshwater inputs to the Black Sea for agricultural purposes--a totally different situation not suitable for comparison to Tampa Bay. Initially, Dr. Champ suggested a limitation of a 10 percent increase above "background" or "ambient" conditions; it was apparent that initially Dr. Champ was not cognizant of the 10 percent over intake chloride limitation in the proposed permit. When he was made aware of the chloride limit, he misinterpreted the two limits, saying that TBD would not be limited to the lower of the two. When it was suggested that he might have misinterpreted the two salinity limits, Dr. Champ testified that chlorides should be compared to a "natural" or "environmental" control site somewhere nearby but outside the influence of the combined TEC/TBD discharge; he said it was a "farce" to compare chlorides to a control site "inside the plant." In so doing, he seemed not to recognize the purpose of the comparison made in the proposed permit--to isolate and identify the impacts of TBD's desal process. In addition, dismissing without much consideration the contrary results of extensive and sophisticated modeling, Dr. Champ opined off- handedly that DO would decrease due to higher salinity that would recirculate and build-up over time. In part, Dr. Champ based this opinion on his misunderstanding that Tampa Bay is not well-mixed or well-circulated at the location of the Big Bend power plant. This was contrary to all the evidence; even if the "gyres" predicted by Dr. Goodwin's two-dimensional model existed, they would suggest a great deal of mixing in Middle Tampa Bay in the vicinity of the Big Bend plant. Dr. Champ next misinterpreted the DO limits in the proposed permit. See Finding 133, supra. Dr. Champ then predicted a decrease in species diversity as a result of higher salinity and lower DO. (To the contrary, salinity increases in the amounts predicted by the far greater weight of the evidence probably would result in somewhat of an increase in species diversity.) Ultimately, Dr. Champ testified that consequences to marine organisms would be dire, even if salinity increased only by 2.5 ppt, because a "salinity barrier" would form across Middle Tampa Bay in contrast to more gradual natural changes in salinity. The far greater weight of the evidence was to the contrary. Dr. Champ made several suggestions to avoid the calamitous results he predicted: require use of a cooling tower to reduce the temperature of the combined TEC/TBD discharge; collect the desal brine concentrate and barge it to the Gulf of Mexico; require intake and discharge pipes extending into the shipping channel in Middle Tampa Bay. But Dr. Champ did not study or give a great deal of thought to implementation of these suggestions. Besides, the other parties proved that these measures were not needed for reasonable assurances. In an attempt to buttress his opinion testimony, Dr. Champ also testified (along with SOBAC's President, B.J. Lower) that the TEC intake canal is virtually devoid of life and that biodiversity in the discharge canal is very low. This testimony was conclusively refuted by the rebuttal testimony of Charles Courtney, who made a site visit after SOBAC's testimony and described in detail a significant number of healthy species in the intake canal, including oyster communities, xanthid crabs, porcellanid crabs, snook, anemones, bivalves, polychaete, and mangroves with seedlings. Of the one and one- half pounds of oysters that Mr. Courtney sampled, he estimated that approximately fifty percent of those oysters were living, which represents a very healthy community. Mr. Courtney further noted that some of the crabs were carrying eggs, which indicates an active life cycle for those species. As to the TEC permit modification, Dr. Champ testified that it was “in-house stuff” which would not affect the environment outside the TEC plant. No other SOBAC witness addressed the TEC permit modification. Dr. Isphording SOBAC called Dr. Wayne Isphording as an expert in sedimentology and geochemistry. Dr. Isphording expressed no concern that the desal process would add metals to Tampa Bay. Essentially, he gave opinion testimony concerning general principles of sedimentology and geochemistry. He testified that heavy metals bound in sediments are released naturally with increases in salinity, but that salinity levels would have to be extreme to result in the release of abnormal quantities of such metals. He admitted that he had performed no studies of sediments in Tampa Bay and declined to offer specific opinions that metals in fact would be released as a result of predicted salinity increases. Dr. Isphording admitted that he knew of no condition in the proposed Desal Facility permit which would cause or allow a violation of state water quality standards. He was aware of no statute or rule requiring more monitoring and testing than is required in the proposed permit. Dr. Parsons SOBAC offered the testimony of Dr. Arthur Rost Parsons, an assistant professor of oceanography at the Naval Postgraduate School, in an attempt to raise questions regarding the near-field and far-field modeling which were provided by TBD to DEP during the course of the permitting process. However, not only had Dr. Parsons not done any modeling in Tampa Bay himself, he was not provided numerous reports and clarifications relating to the studies he was called to critique. He only reviewed an interim report dated November 1, 2000, regarding the near-field model. Dr. Parsons testified that the DHI model used for the near-field study was an excellent shallow water model. He found nothing scientifically wrong with it and testified that the "physics and the model itself is . . . well–documented." Dr. Parsons also did not contradict the results of the DHI model. Instead, he noted that the modeling task was difficult and complex, he described some of the model's limitations, and he testified to things that could have been done to increase his confidence in the model results. One of Dr. Parson's suggestions was to run the model longer. But the evidence was that, due to the model's complexity and high computational demands, it would have been extremely expensive to run the model for longer periods of time. Another of Dr. Parson's suggestions was to use salinity data would be to use the information that the model itself generated with regard to salinity distributions instead of a homogeneous set of salinity data. Dr. Parsons was concerned that use of homogeneous salinity data would not reflect the effect of "double diffusion" of heat and salinity, which would result in sinking of the combined heat. But engineer Andrew Driscoll testified in rebuttal that the effects of "double diffusion" would cease once equilibrium was reached and would not result in a hypersaline plum sinking to the bottom. In addition, he testified that turbulent mixing from tide and wind would dominate over the effect of "double diffusion" at the molecular level so as to thoroughly mix the water, especially in the shallow North Apollo Beach Embayment. Dr. Parsons also suggested that the model be run for rainy season conditions to see if the effects of vertical stratification would increase. But even if vertical stratification increased as a result of rain, salinity also would be expected to decrease. The scenario modeled was "worst case." Dr. Parsons also suggested the use of a range of temperatures for the combined heat/salinity plume instead of an average temperature. However, he conceded that it was not inappropriate to use average temperature. Instead, he would have liked to have seen the model run for a range of temperatures to see if the model was sensitive to temperature differences so as to increase his confidence in the results. Dr. Parson's testimony focused on the near-field model. His only comment on the far-field model was that he thought it should have used the out-puts from the near-field model (as the near-field used the outputs). Scott Herber SOBAC offered no direct testimony on the impact of the Desal Facility discharge on seagrasses in Tampa Bay. The testimony of Steve Herber, a doctoral student at the Florida Institute of Technology, related to the vulnerability of seagrasses, in general, to changes in salinity. However, Mr. Herber had no specific knowledge of the seagrasses present in Tampa Bay and had not performed or reviewed any scientific studies upon which his opinion could be based. He reached no conclusions about the specific permits at issue in this proceeding, nor about the effect of the Desal Facility on seagrasses in Tampa Bay. In contrast to Mr. Herber, the testimony of TBD's expert, Robin Lewis, and SWFWMD's expert, Dr. David Tomasko, provided detailed information about the seagrasses located in Tampa Bay. Both have studied seagrasses in Tampa Bay for many years and have been involved in mapping seagrass distribution in a variety of bays and estuaries along the west coast of Florida. Dr. Tomasko criticized witnesses for SOBAC who attempted to draw conclusions about Tampa Bay based on studies of other bays and estuaries because each bay has unique characteristics that cannot be extrapolated from studies of other bays. Dr. Tomasko and Lewis testified that seagrasses in Tampa Bay are becoming more abundant, that dissolved oxygen levels are increasing, and that water clarity in Tampa Bay is also improving. Dr. Mishra Dr. Satya Mishra was called by SOBAC as an expert in statistics. He is not an expert in the discrete field of environmental statistics. He has never been involved in the development of a biological monitoring program and could not provide an opinion regarding what would be an adequate sample size for this permit. He essentially expressed the general opinions that for purposes of predictive statistical analysis: random sampling is preferred; statistical reliability increases with the number of samples; and 95 percent reliability is acceptable. Dr. Mishra performed no statistical analysis in this case and could not conclude that the sampling provided in the proposed permit would not be random. Ron Chandler Ron Chandler, a marketing representative for Yellow Springs Instrument Corporation (YSI), simply testified for SOBAC regarding the availability of certain types of continuous monitoring devices. He did not offer any opinions regarding whether or not reasonable assurance required continuous monitoring of any specific parameter or any monitoring different from or in addition to what is proposed in TBD's proposed permit. John Yoho SOBAC called John Yoho as a financial and insurance expert to criticize the terms of an agreement by TBD, TBW, and DEP to settle Hillsborough County's request for an administrative hearing (DOAH Case No. 01-1950). This agreement is contained in TBD Ex. 470. But Yoho admitted that he had no knowledge regarding what is required to obtain an NPDES permit in terms of financial assurances. He also indicated that none of his testimony should be understood as relating in any way to financial assurances required for such a permit to be issued. Alleged Improper Purpose The evidence did not prove that SOBAC participated in DOAH Case No. 01-2720 for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of TEC's permit modification applications. To the contrary, the evidence was that SOBAC participated in this proceeding in an attempt to raise justifiable issues arising from the peculiarities of the relationship of TEC's permit modification application to TBD's permit application. Although SOBAC suffered adverse legal rulings that prevented it from pursuing many of the issues it sought to have adjudicated on TEC's permit modification application, it continued to pursue issues as to the TBD permit application which, if successful, could require action to be taken on property controlled by TEC and, arguably, could require further modification of TEC's permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: (1) issuing the proposed permit number FL0186813-001-IWIS, as set forth in TBD Ex. 203 with the addition of the two permit conditions specified in TBD Ex. 470; (2) issuing proposed permit modification number FL0000817-003-IWIS, as set forth in TBD Ex. 225; and (3) denying TEC's request for attorney's fees and costs from SOBAC under Section 120.595(1). Jurisdiction is reserved to enter an order on TBD's Motion for Sanctions filed on August 13, 2001, regarding SOBAC expert Ralph Huddleston. DONE AND ENTERED this 17th day of October, 2001, in Tallahassee, Leon County, Florida. __________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 William S. Bilenky, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604 Ralf G. Brookes, Esquire Morgan & Hendrick 1217 East Cape Coral Parkway Suite 107 Cape Coral, Florida 33904-9604 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive, Suite 211 Clearwater, Florida 33761-3930 Lawrence N. Curtin, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Post Office Box 810 Tallahassee, Florida 32302-0810 Douglas P. Manson, Esquire Carey, O'Malley, Whitaker & Manson, P.A. 712 South Oregon Avenue Tampa, Florida 33606-2543 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Joseph D. Richards, Esquire Pasco County Attorney's Office 7530 Little Road, Suite 340 New Port Richey, Florida 34654-5598 Cathy M. Sellers, Esquire Moyle, Flanigan, Katz, Raymond & Sheehan, P.A. 118 North Gadsden Street Tallahassee, Florida 32301-1508 Linda Loomis Shelley, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. Post Office Box 11240 Tallahassee, Florida 32302 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke, while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety. DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of April, 1992. COPIES FURNISHED: THOMAS W CAUFMAN ESQ HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407 LARGO FL 34648 RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100 LUTZ FL 33549 RICHARD S POWER AGENCY CLERK DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700 JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
The Issue Whether Gar-Con's revised application for a permit to construct a sewage plant, and soakage trenches to dispose of the effluent, should be granted?
Findings Of Fact Eight to ten miles south of Melbourne Beach and 8.3 miles north of Sebastian Inlet, Gar-Con plans to develop a parcel of land stretching west from the Atlantic Ocean, across Highway A1A, to the Indian River. Gar-Con expects to build a motel and residential complex complete with tennis courts, parking garage, water treatment plant and the sewage treatment facility for which a construction permit is sought in these proceedings. The sewage treatment plant would be built on a site 480 feet west of Highway A1A and 90 feet south of Gar-Con's northern property line, at an elevation of 11 or 12 feet above mean sea level. Ocean Way Water and Sewer Association, Inc. is to be organized as a nonprofit corporation to own and operate the wastewater treatment facility. The Public Service Commission, through the director of its water and sewer treatment, has taken the position that the proposed "sewer system will fall within the exemption described in Section 367.022(7), Florida Statutes." DER's Composite Exhibit A. PACKAGE PLANT PROPOSED The facility Gar-Con proposes is designed to treat 100,000 gallons of sewage daily, which is the estimated "total flow" (T. 75) the sanitary engineer who designed the system anticipates from the development. Sewage generated by the development would flow to the plant, through a bar rack designed to remove rags and other large objects, and into aeration tanks where, over a 24 hour period, interaction with air and a biological mass would supply oxygen and cause the formation of biological floccules. The flocculant sewage would then move to a clarifier hopper. During its five hour stay there, solids which were not earlier segregated as the sewage moved over a weir into the clarifier, would be precipitated and removed. The clear, residual liquid would be pumped through one of two sand filters (each of which would also have granular activated carbon and be capable of filtering 100,000 gallons daily) into one of two chlorine contact chambers where a gas chlorinator would introduce chlorine for an hour. Under ordinary circumstances, the chlorinated effluent would then be pumped into one of two soakage trenches. The soakage trenches, each designed for use every other week, are to be gravel-filled ditches covered over first with felt paper, then with compacted fill. The gravel would lie at least one foot beneath the surface of the ground in a space ten feet wide and three feet deep stretching the 940 foot length of each soakage trench. Punctured like sieves, two six-inch PVC pipes would run through the gravel, sweating effluent from their pores. There is also a plan to dig a percolation pond or grassed swale five feet deep, 120 feet long and 80 feet wide near the wastewater treatment plant, which could serve as a receptacle for effluent, in case of "a 1:10 year storm or when the filters are down and/or if soakage trenches would need repair." Gar- Con's Exhibit 2-A. It would hold about 100,000 gallons. The solids caught by the weir, those extracted in the clarifying process, and those recovered from backwashing the filters would serve as catalyst for the aeration process as needed. Excess sludge, about 3,000 pounds monthly, would undergo "aerobic digestion," before being removed to Brevard County's Central Disposal Facility on Adamson Road, for disposal there. Gar- Con's Exhibit No. 7. Primary and secondary drinking water standards would be met by the effluent as it left the plant (although the engineer who designed the system would not drink the effluent himself), except that, from time to time, nitrate concentrations might reach 12 milligrams per liter, and except in the "event that a homeowner might put some type of [inorganic toxic or carcinogenic] material into the sewer system." (T. 86) The biological oxygen demand (BOD) would be ten milligrams per liter; suspended solids would probably amount to about five milligrams per liter; pH would probably be slightly under seven; nitrates would average approximately eight milligrams per liter but would "peak out at certain times during the year, for maybe extended periods up to two months, at twelve milligrams per liter," (T. 80); and there would be a chlorine residual after 60 minutes of two milligrams per liter. AMBIENT WATERS There would be no direct discharge to the Atlantic Ocean, Indian River or any other body of surface water, nor would any indirect effect on surface waters be measurable. No body of surface water lies within 500 feet of the site proposed for the plant and soakage trenches. Potable groundwater underlies the site; the groundwater table slopes toward the Atlantic Ocean, 9.5 to 12.5 feet below ground. "[D]uring the traditional rainy season," Gar-Con's Exhibit 2B, Attachment, p.3, the groundwater may rise to within seven feet of the surface. The PVC pipes in the soakage trenches are to be placed two and a half feet deep. As effluent percolated through the sandy soil, there would be "mounding" of the groundwater underneath the soakage trenches, and dispersal in all directions. Surface flow is to be diverted from the soakace trenches so that only rainwater falling directly on them would percolate down through the gravel beds. Taking soil characteristics into account, and assuming a "water table depth" of 20 feet, an engineer retained by Gar-Con predicted that "the maximum expected groundwater rises beneath the east and west trenches are 2.4 and 2.1 feet, respectively under a loading of 100,000 gpd for a period of 7 days." Gar-Con's Exhibit No. 3. The water table depth, "the height, the top of the groundwater from the first restrictive layer," (T. 172), is probably more like 40 feet than 20, which accounts in part for the "conservatism" of the mounding predictions. Under very severe weather conditions (a 100 year storm), groundwater would rise as high as the bottom of the trenches making them unavailable to receive effluent, but the effluent would not be forced above ground. In a 100 year flood, water would be expected to rise to seven feet above mean sea level. Under such conditions, people could be expected to evacuate the area. In a 25 year storm, the system could be expected to continue to function. Groundwater to the north and east of the proposed site was sampled, and the samples were analyzed. The water to the north had 380 milligrams of chlorides per liter and the water to the east had 450 milligrams of chlorides per liter. As it left the proposed treatment plant, the effluent would contain approximately 150 milligrams of chlorides per liter. SOUND AND LIGHT Lights like those used as street lights are to be installed at four places in the wastewater treatment plant. A timer, which can be overridden, would turn the lights on at dusk and off at eleven o'clock at night. The lights would illuminate the plant adequately. Pumps would move sewage to and through the proposed plant. Most of the pump motors would be submerged and unable to be heard. Two electric blowers, a flow meter and a totalizer would also have electrical motors. The blowers and the blower motors are to be equipped with insulated fiberglass covers and the blowers would also have intake and double outlet silencers. Four feet from the plant the noise of the motors would be comparable to that of a home air conditioning unit. At the nearest residence the noise level would scarcely exceed background noise. At hearing, Gar-Con revised its application and agreed to install an emergency generator which would also be encased in insulated housing and is to be equipped with a muffler. AEROSOL AND ODOR Unless the proposed plant loses electric power for 24 hours or longer, no offensive odors would emanate from it. The bar rack and weirs would be regularly hosed down. Against the possibility of a power failure, Gar-Con agreed at hearing to install permanently an emergency generator with sufficient capacity to keep both the wastewater treatment plant and the water treatment plant it plans to build operable. No aerosol drift is foreseen. The surface of the liquid In the aeration tanks would be 1.4 feet below the top of the rim. Walkways four feet wide along the inside perimeters of the aeration holding tanks would prevent dispersal of most of aerosol. A decorative hedge around the treatment plant, which would eventually be 15 feet high, is a final fail-safe. WELLS To the north are two shallow wells within 500 feet of the site proposed for the wastewater treatment plant. Both wells belong to Kel Fox, who wrote Gar-Con that he had no objection to their proposed wastewater treatment facility in light of Gar-Con's agreement to furnish drinking water to existing facilities on his property and reimburse him expenses incurred in disconnecting the two shallow wells. Gar-Con's Exhibit 2E. There is a deep well within 500 feet to the south. DER and Gar-Con have entered into the following stipulation, dated September 2, 1983: Existing Wells. Prior to the operation of its waste water treatment plant, Gar-Con will offer to supply drinking water at a reasonable cost to owners of property on which are located operational or approved shallow drinking water wells that are within 500 feet of Gar-Con's land application site. Gar-Con will make this offer to all such owners known to it prior to the operation of its plant. Gar-Con will further offer to provide reasonable compensation to such owners to disconnect their shallow wells. Gar-Con will endeavor to arrange for provision of drinking water to these owners and the disconnection of those wells prior to the operation of its plant. Future Wells. Should nearby individual (non-corporate) property owners propose to construct shallow drinking wells located within 500 feet of Gar-Con's land application site after Gar-Con begins operation of its waste water treatment plant, Gar-Con also will offer to supply them with drinking water at a reasonable cost and to provide reasonable compensation to them to disconnect those wells. However, Gar-Con shall have no obligation to make any such offer to owners of future wells if sampling of monitoring wells located at or near its external property line indicates that the groundwater meets the primary drinking water standards and, after July 1, 1985, the secondary drinking water standards listed in Florida Administrative Code Rule 17-22.104. Gar-Con agrees to record a master notice of restriction barring future owners of lots within the Ocean Way development, which are owned by Car-Con at the time of permit issuance, from installing shallow drinking water wells on such property or otherwise using the shallow aquifer beneath their property as a source for irrigation or for potable water, so long as use of the proposed sewage disposal system continues, and the Department has not found that this restriction is unnecessary. This restriction, which shall be a covenant running with the land, further shall require future owners to purchase water from Gar-Con or any successor owner of the development's water system if Gar-Con or the successor provides water service. These restrictions also shall be contained in all other appropriate documents of title. In addition, Gar-Con plans to create a non-profit water and sewer association to own and control the development's water and sewer system. Gar-Con will include in the Articles of Incorporation of this association a requirement that all property owners served by the system must be members of the Association. Gar-Con is entitled to a zone of discharge extending to its current property line with the exception that the zone of discharge shall not include the area contained within a 100' radius of Gar-Cons's proposed water supply wells. DER Staff concurs that the above conditions, in conjunction with the sewage treatment and disposal system and the groundwater monitoring program proposed by the applicant, to meet the requirements of Chapter 17-4, F.A.C. will provide reasonable assurance that existing and future off-site and on-site property owners will be protected from any adverse effects that might result from the operation of the proposed sewage treatment disposal system. Petitioner's Exhibit No. 10. There are to be a half dozen monitoring wells to allow sampling of the groundwater at strategic points in the shallow aquifer. NATURAL RESOURCES Turtles nest in the general vicinity but off the site of the proposed project. Construction and operation of the proposed waste water treatment facility would have no impact on the turtles apart from making it possible for more people to live closer to where they nest.
