Findings Of Fact The Applications. Permit DC51-189086 (Moon Lake Road Site). The County's application for Permit DC51-189086 was filed on 11/13/90. It sought to construct Moon Lake Road WWTP, Sprayfield, and Percolation Pond System. The design treatment capacity sought for Moon Lake Road WWTP was .800 MGD, for the sprayfield was .215 MGD, and for the percolation pond system was .185 MGD. The application for Permit DC51-189086 was denied on 2/13/92. Notice of the proposed agency action was published in accordance with Department requirements, and the County timely petitioned for a formal administrative hearing. On 11/16/93, the County amended its application for Permit DC51-189086 to exclude the proposed Moon Lake Road WWTP, in order to defer construction of the WWTP to a later date. On 1/5/94, the County amended its application for Permit DC51-189086 to withdraw the request for a surface water permit and a stormwater permit. Due to the recent interagency agreement between the Department and SWFWMD, the County decided to defer surface water and stormwater permitting for this facility until after the construction permit was issued. Permit DO51-194674 (Wesley Chapel WWTP/Oakley Grove Site). The County's application for Permit DO51-194674 was timely filed on 2/12/91. The application sought authorization to operate the County's Wesley Chapel Wastewater Treatment Plant (WWTP) at .750 MGD and Oakley Grove Percolation Pond System at .600 MGD. The application for Permit DO51-194674 was denied by the Department on 7/18/91. The notice of permit denial alleges that the County failed to submit requested additional information, that an inspection of the site had revealed a 6-inch irrigation pipe undermining a percolation pond berm, and that the Certificate of Completion of Construction did not accurately reflect observed aspects of the disposal area. The County timely petitioned for administrative hearing. The application for Permit DO51-194674 was amended on 11/16/93 to limit the treatment capacity of Wesley Chapel WWTP to .600 MGD. Permit DO51-199516 (Ryals Road Site). The portion of this case concerning Permit DO51-199516 involves the County's request to reactivate operations at the Ryals Road Percolation Pond System. The requested disposal capacity is .1075 MGD, which is about half of its disposal capacity when it previously was in operation. Ryals Road Percolation Pond System is a reuse facility owned by the County, and constructed in 1985 as a replacement for nearby Oaks Royal Percolation Pond, where a sinkhole had developed. The County's initial construction permit application (#DC51-100407) for the Ryals Road Percolation Pond System was filed with the Department in 1985. The Department granted the application for Permit DC51-100407 on 7/10/85. Ryals Road Percolation Pond System's permitted disposal rate was about .200 MGD. Construction of Ryals Road Percolation Pond System was completed in 1986, and operation began immediately thereafter due to the appearance of a new sinkhole at the Oaks Royal Percolation Pond. The Department was advised of the new sinkhole in the Oaks Royal Percolation Pond in 1/86 and in 2/86 and was advised that reclaimed water from Oaks Royal WWTP was being diverted to Ryals Road Percolation Pond System. The Ryals Road Percolation Pond System operated from 1986 through 1989. It received reclaimed water from Oaks Royal WWTP. A sinkhole developed in Ryals Road Percolation Pond System in 1987. The County backfilled the sinkhole and advised the Department of the problem. The County's initial operation permit application (#DO51-142683) for Ryals Road Percolation Pond System was filed with the Department in 1989. The Department granted the County's application for Permit DO51-142683 in 8/89. It does not contain any permit conditions dealing with the potential for sinkhole formation at the Ryals Road Percolation Pond System. At the time, the Department anticipated that the Ryals Road Percolation Pond System would be in operation for only a year or two. The County operated Ryals Road Percolation Pond System under Permit DO51-142683 until sometime in 1990, without further sinkhole or land subsidence problems. Ryals Road Percolation Pond System was taken out of service in 1990, when Oaks Royal WWTP was abandoned. Oaks Royal WWTP was taken out of service because, after completion of Southeast WWTP, it no longer was needed. On a routine monitor well sampling report to the Department dated April 30, 1990, the County's laboratory supervisor noted that the Oaks Royal WWTP had been taken out of service prior to January, 1990. On a subsequent report dated May 29, 1990, the County's laboratory supervisor noted that monitor wells at the Ryals Road site had been destroyed and that no ground water samples could be taken or reported. This report also noted that no arrangements were being made to replace the monitor wells since the Oaks Royal WWTP was "no longer on-line." The County never formally withdrew or surrendered its operation permit DO51-142683 for the operation of the Oaks Royal WWTP and Ryals Road Percolation Pond System. The Department never took action to revoke or terminate the Oaks Royal/Ryals Road operation permit and never gave the County notice of intent to do so. The County first notified the Department of its intent to "revive" the Ryals Road Percolation Pond System through letters dated 4/12/91 and 4/18/91. The County attempted to reactivate the facility by letter rather than permit application because it believed the facility was already authorized to operate pursuant to Permit DO51-142683. After receiving no response to its 4/91 letters, the County sent the Department a follow-up letter dated 6/10/91 again asking to "revive" Ryals Road Percolation Pond System. This letter refers to the County's request to reactivate the system as a "minor modification" to Permit DC51-150232C, which authorized construction activities at the County's Southeast WWTP. The letter sought a minor modification of the construction permit instead of an amendment to Permit DO51-142683 because the County was unsure of the status of the Ryals Road Percolation Pond System operation permit and had been advised by Department employees that this would be the most expeditious way to handle its request. The County's request for a minor modification was assigned permit identification number DO51-199516, and the "O" signifies an operation permit application. The County does not know why its request to reactivate Ryals Road Percolation Pond System was treated by the Department as a new operation permit application. The County first learned that its request to reactivate Ryals Road Percolation Pond System had been assigned a new operation permit identification number when it received notice of permit denial. The "application" for Permit DO51-199516 was denied on 8/26/91. The County timely petitioned for a formal administrative hearing. The Notice of Permit Denial for Permit DO51-199516 alleged that Ryals Road Percolation Pond System is not suitable for rapid rate disposal due to the high potential for subsidence activity, that this potential is demonstrated by the appearance of sinkholes in 1985, 1986 and 1987, and that boring logs and other information in the ground water monitoring plan shows a potential for sinkhole formation. Regardless of the confusion in processing the County's request regarding the Ryals Road site, the County announced clearly and unequivocally at final hearing that it no longer wanted its request to reactivate the Ryals Road Percolation Pond System to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP). Rather, it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a), and it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit). Alternatively, and only if it was determined that Permit DO51-142683 no longer was in effect, the County wanted its request to be treated as a request for a modification of Construction Permit DC51-150232C (for construction of the Southeast WWTP) or as an application for a new operation permit. Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit) expired on August 5, 1994. Drainage Ditches in Oakley Grove and Moon Lake Percolation Pond Systems. Drainage ditches are present at the Oakley Grove and several other County Percolation Pond Systems; they are proposed for the Moon Lake Percolation Pond System. (Drainage ditches are not present at the Ryals Road Percolation Pond System.) A "relief drainage" system is a system of drainage ditches used to lower a high water table, which is generally flat or of a very low gradient. There are 4 types of relief drainage ditch systems: parallel, herringbone, double main and random. Correspondence between the County's consultants and the Department usually described the on-site drainage ditches at the County's percolation pond systems as "perimeter ditches." Although the County's ditches do not necessarily completely surround each pond, it is a fair description of the ditches. They are a network of ditches that, together, surround the sites. The network varies to some degree from site to site. Moon Lake Road Percolation Pond System is designed to have double main type drainage ditch system; Oakley Grove Percolation Pond System has a random type ditch system. The County's consultants began referring to the ditches as "perimeter ditches" in part because it was a term used by members of the Department's staff. But both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Ground water will seep into the relief drainage ditches at the County's percolation pond system. During and after any rainfall event, water infiltrating into the ground in close proximity to a drainage ditch will be encouraged to seep into the ditch. During seasonally wet periods, when ground water elevations tend to rise above normal levels, ground water both on and off- site will seep into the ditches. After extreme rainfall events delivering large volumes of water to the site, elevated ground water mounding would occur and ground water will seep into the drainage ditches. The invert elevations of the relief drainage ditches located at the County's percolation pond systems were set to the approximate normal water level elevation. As a result, the ditch inverts will normally be wet, and ground water normally will seep into ditches in normal weather conditions even if the water table is not being recharged by reclaimed water. The principal design goals for the drainage features located at the County's percolation pond systems are: (a) ditch construction provides an inexpensive source of fill material; (b) using on-site ditch material allows pond bottoms to be kept higher above the water table; (c) ditches buffer adjacent property from recharge impacts; (d) ditches buffer the site from adjacent land use practices; (e) ditches provide a constant boundary condition by flattening seasonal fluctuation in rainfall, runoff, water table elevations and the potentiometric surface of the deeper aquifer system; (f) ditches serve to quickly drain rainfall that may hinder the recharge performance of the percolation ponds; (g) ditches provide a visible indication of site performance; and (h) ditches are part of the site's stormwater and overflow system. Although the collection of reclaimed water in the ditches is not the primary goal of these drainage features, it is recognized that some reclaimed water would be collected in the ditches as a result of the use of the drainage features to improve the performance of the percolation ponds, depending on the application rate and weather conditions. It is possible that reclaimed water applied to the percolation ponds will percolate into the ground and combine with native ground water, and that the resulting mixture will infiltrate the drainage ditches. As with all land application systems, water applied to percolation ponds will migrate downgradient in the surficial aquifer system and blend with other waters recharging this system. Surface waters downgradient from percolation pond cells, whether in the relief drainage ditches or off-site, will receive a blend of rainwater, direct runoff, water originating from the percolation ponds and ground water, in various proportions. Most surface water is designed to leave the Oakley Grove site at the eastern discharge point. Surface water leaving the site at this point flows east under Interstate 75 and into a forested wetland, approximately 150 acres in size, located to the east of I-75. Surface water then flows from the southwest corner of the wetland into a linear wetland and channel system, which conveys water west, ultimately discharging into Big Cypress Swamp, another wetland system several thousand acres in size. The other discharge point is from the southwestern corner of the Oakley Grove site. From the southwest outfall, surface water flows into a wetland and channel system that conveys water west and then north into Big Cypress Swamp. Surface water also is designed to discharge from the Moon Lake Road site via two outfalls. Both are located on the east side of the site. Discharges would enter an adjacent cypress wetland system consisting of hundreds of acres and meander approximately two miles in a northeasterly direction to a point of intersection with the upper reaches of the Pithlachascotee River. Status of Reclaimed Water Travelling 100 Feet or More from Percolation Pond Cells to Drainage Ditches. The Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water. This practice is derived from Department rules and from the Department's expectation that effluent percolating into the ground water and travelling 100 feet through the soil no longer will have the characteristics of effluent, for permitting purposes, when it reaches the surface water body. One hundred feet generally is recognized in the engineering field as usually sufficient area to permit adequate treatment, dilution and mixing of effluent as it travels through the soil matrix so to be virtually indistinguishable from normally occurring ground water, for permitting purposes, when it reaches the surface water body. The treatment, dilution and mixing of effluent occurs through a variety of chemical, biological, absorptive and physical processes that are well documented in the field of sanitary engineering. Although the Department generally uses 100 feet as the allowable setback distance between a land application system and adjacent surface water, the facts of individual cases must be considered to determine whether treatment afforded by 100 feet of travel through the ground makes reclaimed water "virtually indistinguishable" from other ground water so as to be virtually indistinguishable from naturally occurring ground water, for permitting purposes, when it reaches the surface water body. This is reflected in the fact that Department's rules make 100 feet the minimum setback distance. In contrast to diffuse discharges to nearby surface water bodies, the Department's rules treat discharges to surface waters via a ditch system that collects and concentrates reclaimed water differently. By rule, such discharges require a surface water discharge permit. If reclaimed water travels through the ground far enough before infiltrating drainage ditches, it would be treated and diluted to the point that it is in fact indistinguishable in chemical or biological composition from native ground water and no longer should be considered reclaimed water or effluent. How far is the dispositive question in determining whether a surface water discharge permit will be required. Setback Distance from On-Site Ditches to Percolation Ponds at Oakley Grove and Moon Lake Road Sites. Relief drainage ditches at Moon Lake Percolation Pond System are designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the pond to the ditch invert. Relief drainage ditches at Oakley Grove Percolation Pond System also were designed to be located 100 feet or more from the percolation ponds, measured from the toe of the slope of the percolation pond to the ditch invert. However, primarily as a result of changes to the drainage system required by SWFWMD as part of its permitting process, and minor siting imperfections which occurred during construction, parts of the drainage ditch system at Oakley Grove Percolation Pond System are located closer than 100 feet from the percolation ponds. To locate all Oakley Grove drainage ditches 100 feet or more from the percolation ponds, it will be necessary to reduce the size of the ponds. In the new configuration, the design loading rate would have to be increased to .8 from .58 gpd/ft2 (gallons per day per square foot) of pond bottom in order to maintain the .600 MGD design loading capacity of the Oakley Grove Percolation Pond System. Even assuming the predicted hydraulic capacity of Oakley Grove site, the actual disposal capacity for the site cannot be determined until it is determined how much of a reduction in pond size is required. The County has not made those determinations yet. Seepage of Reclaimed Water from Percolation Ponds at Oakley Grove Percolation Pond System to Drainage Ditches. Although constructed with a design disposal capacity of .600 MGD, until recently the County has loaded the ponds at Oakley Grove under the Oakley Grove construction permit at an actual average rate of approximately .200 MGD. (Maximum actual loading has been approximately .250 to .270 MGD.) This average loading rate required effluent to be loaded onto the ponds at the rate of approximately .19 gpd/ft2 of pond bottom. In November, 1993, the County stopped loading the ponds at Oakley Grove. During site visits to Oakley Grove on 4/15/91, 7/11/91, 7/12/91, 8/27/91, 10/12/93 and 12/7/93, Department personnel observed that ditch inverts, and some points even higher on berms on the pond side of ditch inverts, were wet and that water had collected in some the ditches, while other ditches and surface water outfalls were not wet. The wet ditches and berms seemed to correspond with the loading of ponds. Rainfall at the Oakley Grove site during the 10-day period immediately preceding these Department site visits was as follows: Site Visit Inches of rainfall Gallons of rainfall 4/15/91 3.58 9,786,659 7/11/91 5.41 14,789,337 7/12/91 5.60 15,308,742 8/27/91 2.91 7,955,078 10/12/93 1.02 2,788,378 12/7/93 0.03 82,011 The precise source of all of the water saturating the wet berms and ditch bottoms observed by the Department personnel was not clear from the evidence. Some of the wet berms and ditch bottoms probably were the result of rainfall that collected in portions of the ditch system due to uneven grading during construction, modifications to the ditch system required by SWFWMD, and the County's maintenance practices. But the evidence also suggests that seepage was occurring from the percolation ponds to the drainage ditches, in some cases at points higher on berms on the pond side of ditch inverts. It also was not clear from the evidence whether the apparent seepage from the percolation ponds into the drainage ditches was occurring more or less than 100 feet from the toe of the slope of the percolation ponds. If less, the seepage may be an indication that the hydraulic capacity of the site is not as great as predicted by computer flow models run in support of the application for a construction permit for the Oakley Grove site. Oakley Grove was designed to recharge the surficial aquifer without short-circuiting the designed 100 foot setback from the percolation ponds to the drainage ditches, even at the design disposal capacity of .600 MGD. (Cady Prefiled, 175). The evidence of seepage at .200 MGD is an indication that the hydraulic capacity of the site may not be as great as designed. Based on the assumed hydraulic capacity of the site, water balances prepared by the County assert that none of the water in the ditches would come from the percolation ponds at .200 MGD, or even at .300 MGD. The evidence of seepage at .200 MGD is another indication that the hydraulic capacity of the site may not be as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. The Oakley Grove relief drainage ditches were authorized by a SWFWMD Management and Storage of Surface Water ("MSSW") Permit (i.e., Permit #405124, issued 7/12/89). This permit established two surface water quality monitoring sites for the off-site discharge of water from the relief drainage ditches and requires that any water discharged off-site meet surface water quality standards. The County has collected data from these monitoring sites since 1991. This data does not indicate any violations of surface water quality standards due to the discharge of water from the relief drainage ditches to off- site receiving waters. (SWFWMD has never instituted an enforcement or compliance action against the County as a result of discharges from the relief drainage ditches to receiving waters, and Permit #405124 remains active.) However, the data indicate that the surface water quality has been worse, with respect to several parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for NOx-N, as high as .600 MGD.) This may be another indication that the hydraulic capacity of the site is not as great as predicted by models run in support of the application for a construction permit for the Oakley Grove site. MGD. No load testing was done at Oakley Grove at more than .250 to .270 Even at the historical loading rate, the evidence did not reflect that the County undertook to determine whether, under different weather conditions, reclaimed water was coming to the surface either in the drainage ditches or higher on berms on the pond side of ditch inverts. Nor was there evidence that systematic testing of the water quality in the ditches was conducted. In light of the evidence of seepage into ditches, either more or less than 100 feet from the toe of the slope of ponds, it was not proven that the site has the capacity to accept effluent at the design rate of .8 gpd/ft2 of pond bottom. It was, however, proven by evidence introduced as Department Exhibit 32 that .075 MGD is a hydraulic loading rate at which no discharge to the on- site ditch/swale features would occur under normal wet season groundwater conditions. Alleged Settlement Offer. Department Exhibit 32 is a January 27, 1992, letter from the County to the Department. It enclosed a letter to the County from the County's engineering consultant and an engineering report from a new hydrogeologic consultant to the County. The January 27, 1992, letter referenced a December 16, 1991, meeting "concerning acceptable rated disposal capacity" for the Oakley Grove Percolation Pond System and states that the enclosed hydrogeology report "verifies the rated capacity [for Oakley Grove] at 75,000 gpd." (The report stated that its purpose was "to estimate a hydraulic loading rate at which no discharge to the on-site ditch/swale features would occur under normal wet season groundwater conditions.") It concluded that a hydraulic loading of the Wesley Chapel WWTP can be justified by combining the 75,000 gpd disposal capacity for Oakley Grove with the 100,000 gpd already permitted for the Saddlebrook Village Percolation Pond System. Nowhere is Department Ex. 32 in fact identified as a settlement offer or as having any connection to a settlement offer in this or any other case. It is found that Dept. Ex. 32 was part of the process by which the parties successfully negotiated the settlement of the County's permit for construction of a modification to the Wesley Chapel WWTP, Permit Application No. DC51-205143. The Department issued a permit for construction of a modification to the Wesley Chapel WWTP (with a .075 MGD limit on disposal at Oakley Grove) on August 31, 1992. The County acceded to reduction of the actual disposal capacity at Oakley Grove pending the disposition of its application for an operation permit for Oakley Grove, and construction of the modifications was completed in late 1993. Ground Water Quality at Oakley Grove. During the time that Oakley Groves has been in operation, monitor wells have detected no violations of G-II ground water quality standards except for nitrates. Analysis of initial ground water samples collected from monitor wells at Oakley Grove Percolation Pond System in approximately January, 1991, detected no nitrate violations. The first quarterly reports after the County started loading the ponds began showing exceedances for nitrates. Exceedances continued to be reported in every quarter until the County stopped loading the ponds in November, 1993. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System demonstrates that nitrate concentrations have gone down over time. On average for the entire Oakley Grove Percolation Pond System, including upgradient background monitoring wells, nitrate concentrations have remained below the 10 mg/l Class G-II ground water quality standard for nitrate from approximately August, 1992, until the County stopped loading the ponds in November, 1993. The most recent quarterly sampling of the monitor wells at Oakley Grove Percolation Pond System occurred in 11/93. The report was submitted to the Department in 1/94. It showed no exceedances of the Class G-II ground water quality standard for nitrate in any of the monitor wells. However, it is not clear from the evidence whether the reports reflected the effects of reclaimed water being applied to the site. The reclaimed water applied to Oakley Grove Percolation Pond System probably is not the sole reason for the elevated nitrate concentrations that have been reported. Agricultural fertilizer was used at the site prior to acquisition by the County. Nitrates from the fertilizer have remained in the soil matrix. The loading of the ponds began to liberate the nitrates from the soil matrix and to flush the nitrates downgradient to the monitor wells. As the preexisting nitrates have been flushed out, nitrate levels have dropped. Analysis of ground water samples collected from monitor wells at Oakley Grove Percolation Pond System suggests that operation of the facility at historical loading rates (approximately .200 MGD) probably will not result in continued ground water quality violations. Systematic load testing would help answer the question more definitively. Surface Water Quality Considerations. The County did not intend for its percolation pond disposal systems either at Oakley Groves or at Moon Lake Road to result in a surface water discharge that would require a surface water discharge permit, and it has not applied for one at either site. Not having applied for a surface water discharge permit, the County has not submitted either a water quality-based effluent limitation (WQBEL) study or a plan to do a WQBEL study. In lieu of a WQBEL study, the County presented evidence of surface water quality consisting primarily of an evaluation of estimated predicted contributions, concentrations and characteristics of inputs entering the drainage ditches and a prediction of water quality characteristics at the point of discharge, given various application rates. Procedures commonly used and relied upon by water resource and sanitary engineers can be used to estimate the predicted quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates. The County utilized these procedures to predict, first, expected quality of water in the drainage ditches and, second, quality of water expected to be discharged off-site under various reclaimed water application rates. In applying the procedures, the County used lower removal efficiencies than those allowed in the EPA Design Manual and did not take into account additional pollutant removal efficiencies that will occur as the water in the ditches migrates off-site, resulting in higher predicted levels of contaminants in the water discharged off-site. The County also assumed the accuracy of the studies and models supporting the disposal capacities for the sites. Utilizing these procedures and assumptions, the County's evidence estimated the following predictions for Oakley Grove: --At an application rate of .300 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N (ammonia) = 0.129 mg/l; NOx- N (nitrite-nitrate)= 0.141 mg/l; organic nitrogen = 0.177 mg/l; total nitrogen = 0.477 mg/l; CBOD5 (carbonaceous biological oxygen demand)= 0.2 mg/l; total phosphorus = 0.04 mg/l; and fecal coliform = 21 per 100 ml. --At an application rate of .400 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.199 mg/l; NOx-N = 0.233 mg/l; organic nitrogen = 0.192 mg/l; total nitrogen = 0.672 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.056 mg/l; and fecal coliform = 20 per 100 ml. --At an application rate of .500 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.549 mg/l; NOx-N = 0.695 mg/l; organic nitrogen = 0.268 mg/l; total nitrogen = 1.65 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.25 mg/l; and fecal coliform = 15 per 100 ml. --At an application rate of .600 MGD, it was estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Oakley Grove site would be: NH3-N = 0.759 mg/l; NOx-N = 0.975 mg/l; organic nitrogen = 0.314 mg/l; total nitrogen = 2.23 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.36 mg/l; and fecal coliform = 12 per 100 ml. --At all reclaimed water application rates at the Oakley Grove site, it was estimated that TSS (total suspended solids) in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Utilizing the same procedures and assumptions, the County's evidence estimated that the water quality characteristics of any off-site discharges from the relief drainage ditches at the Moon Lake Road site at the design application rate of .185 MGD would be: NH3-N = 0.769 mg/l; NOx-N = 0.995 mg/l; organic nitrogen = 0.297 mg/l; total nitrogen = 2.25 mg/l; CBOD5 = 0.2 mg/l; total phosphorus = 0.37 mg/l; and fecal coliform = 3 per 100 ml. At the reclaimed water application rate proposed for Moon Lake Percolation Pond System, the County estimated that TSS in the reclaimed water would be completely removed during migration through the soil before it reaches the relief drainage ditch. Using those predictions of the water quality characteristics of off- site discharges from the relief drainage ditches, the County presented evidence that predicted generally and in a conclusory fashion that surface water discharges would not adversely impact the environment downstream. However, as already indicated, water quality monitoring for SWFWMD indicates water quality that has been worse at historical application rates, with respect to some parameters, than the quality which the County predicts for application rates of .300 MGD and higher (for one parameter, as high as .600 MGD). County Ex. 162 summarized the surface water monitoring results at Oakley Grove for November, 1992, through November, 1993: East Outfall at I-75: NH3-N range less than 0.07-0.721 mg/l, and mean 0.157 mg/l; NOx-N range, less than 0.1-3.04 mg/l, and mean 0.416 mg/l; organic nitrogen range 0.250-1.10 mg/l, and mean 0.558 mg/l; total nitrogen range 0.510- 3.77 mg/l, and mean 1.31 mg/l; CBOD5 range less than 1-2.0, and mean 1.1 mg/l; total phosphorus range 0.020-0.190 mg/l, and mean 0.054 mg/l; T.S.S. range 1-16 mg/l, and mean 3.1 mg/l; and fecal coliform range 1-5300 per 100 ml, and mean 352 per 100 ml. South Outfall at Trailer Park: NH3-N range less than 0.07-0.270 mg/l, and mean 0.125 mg/l; NOx-N range, less than 0.1-0.810 mg/l, and mean 0.285 mg/l; organic nitrogen range 0.285-1.01 mg/l, and mean 0.631 mg/l; total nitrogen range 0.533-1.85 mg/l, and mean 1.04 mg/l; CBOD5 range less than 1-3.0, and mean 1.4 mg/l; total phosphorus range 0.010-0.120 mg/l, and mean 0.053 mg/l; T.S.S. range 1-16 mg/l, and mean 3.9 mg/l; and fecal coliform range 2-560 per 100 ml, and mean 50 per 100 ml. In addition, contrary to the County's predictions, estimates and arguments that surface water discharges from the Oakley Grove site will be "virtually indistinguishable from naturally occurring ground water," the surface water quality monitoring for SWFWMD at historical application rates indicates that water quality has been clearly distinguishable from naturally occurring ground water. The surface water discharges from the Oakley Grove site clearly have had higher levels of NOx-N and organic nitrogen than the water quality measured at the background monitoring station. In addition, pH levels have been significantly higher (approximately 7.35 versus 5.81). As previously found, the evidence suggests that seepage from the percolation ponds to the drainage ditches has occurred at the Oakley Grove site at application rates of approximately .200 MGD. That evidence belies the assumptions underlying the County's surface water quality predictions at Oakley Grove and suggests that the site may not have the hydraulic and disposal capacities on which the surface water quality predictions for Oakley Grove were based. Until the actual hydraulic capacity and disposal capacity of the Oakley Grove site are determined, it is not possible to accurately predict the quality of water discharged off-site from the relief drainage ditches under various reclaimed water application rates (except that there was evidence to prove that no seepage into the ditches would occur at application rates of up to .075 MGD.) In contrast to the Oakley Grove site, no load testing of the Moon Lake Road site is possible until it is constructed. The County presented evidence that nitrogen would be absorbed by plants and sediments downstream from the point of discharge. However, the evidence assumed that discharges would take place only in the wet season. Potential downstream impacts resulting from a dry season discharge would depend upon: (1) the amount of water coming off the site; (2) the amount of water in the receiving wetlands; (3) the duration of the discharge; and (4) the frequency of the discharge. The County's evidence did not examine the impact of discharges under those conditions. The County did not present evidence quantifying the amount of anticipated inorganic nitrogen discharge, the rate of uptake in sediments or plants, and the impacts downstream. The potential for imbalance of flora and fauna downstream, the biological integrity downstream, and degradation downstream likewise were addressed only in a general and conclusory fashion. No in-depth study of downstream biology was completed by the County. As for pH, there was evidence that the background wetland had a pH of 5.81 in standard units, while the ditch discharge has had a pH of 7.35 in standard units. Standard units of pH are logarithmic values. The numbers are actually powers of 10 and cannot simply be added together and divided by 2 to get an average pH. To get an average pH, you have to convert the pH from the logarithmic value to the actual concentration of the hydrogen ion, take the average, and then convert the average to a logarithmic value. Using this method, the average of a pH of 5.81 standard units and a pH of 7.35 standard units equals 6.1 standard units. Wetlands are very sensitive to the decreases in acidity reflected by higher pH values. The County's predicted surface water quality analyses did not address pH at all. The County's evidence did not include an examination of existing downstream conditions and projecting potential discharge impacts. The County did not model dissolved oxygen downstream of discharge points and did not survey the biological community of the receiving waters regarding any discharge to determine what impact, if any, a potential discharge would have on waters of the state. Surface water quality considerations were not assessed in relation to the volume and frequency of the discharge. In addition, the County did not sample and analyze water quality in downstream receiving waters. Other Considerations at Moon Lake Road In evaluating the County's Moon Lake Road application for completeness, the Department requested that the County conduct a fracture trace analysis and, if it indicated a higher likelihood of subsidence or sinkholes, a ground-penetrating radar (GPR) study. The County refused to do either, citing a desire to save County taxpayers money. Karst geology is typical in Pasco County. The County's site specific study of the Moon Lake Road site indicates the potential for karst activity by the presence of depressional features within and immediately adjacent to the site. It also indicates the presence of sinkholes on an immediately adjacent property. Starkey Wellfield is a regional public water supply wellfield located in Pasco County, which is part of the water supply network operated by West Coast Regional Water Supply Authority ("WCRWSA"). Starkey Wellfield currently operates under a consumptive use permit ("CUP") issued in 1988. The CUP authorizes the production of water from this facility at the annual average rate of 15 MGD and the maximum rate of 25 MGD. The nearest production well at the Starkey Wellfield is located slightly over half a mile from Moon Lake Road Sprayfield and slightly less than three-quarters of a mile from the Moon Lake Road Percolation Pond System. Water levels at the Moon Lake Road site probably will decline only about 0.7 foot due to the production of water from Starkey Wellfield. This decline is too small to significantly increase the potential for sinkhole formation or subsidence at the Moon Lake Road site. If the Moon Lake Road Percolation Pond System and Sprayfield can be operated in a safe and environmentally sound manner, it might be able to provide valuable recharge to the water table and the lower lying aquifer units. (This could reduce impacts caused by the wellfield.) But if there already is a sinkhole, or the high potential for one, at the Moon Lake site, use of the site for the disposal of reclaimed water could have a serious adverse effect on the Starkey Wellfield public water supply. Under these circumstances, it is found that the County has not yet given reasonable assurances that the Moon Lake Road site can be operated in a safe and environmentally sound manner. Evidence on Elements of Estoppel. The "Representations." Prior to the filing of the pending Oakley Grove operation permit application and Moon Lake Road construction permit projects, the Department had evaluated and permitted other similar County percolation pond systems (utilizing a system of drainage ditches to improve performance during wet weather conditions) in other locations. Saddlebrook Village Saddlebrook Village Percolation Pond System has a design disposal capacity of .15 MGD and a permitted capacity of .098 MGD. The initial construction permit application (#DC51-140007) for this facility was filed in 9/87. The Department issued Permit DC51-140007 on 12/21/87. Specific Conditions 7 and 8 of Permit DC51-140007 address the relief drainage ditch system. These conditions require sampling and analysis of any off-site discharge from these ditches for primary drinking water standards, flow, dissolved oxygen ("DO"), pH, biological oxygen demand ("CBOD5") and total suspended solids ("TSS"). The County accepted those conditions. Saddlebrook Village Percolation Pond System was constructed pursuant to Permit DC51- 140007. Thereafter, the County applied for a construction permit (#DC51-145550) in 2/88 to expand the system's disposal capacity to .250 MGD. The application sought to construct additional percolation pond basins and extend the ditch system to the new pond area. The Department approved the County's application for Permit DC51- 145550 on 7/26/88. The permit issuance was preceded by an Intent to Issue finding that the County had provided reasonable assurances that the modified facility could be constructed and operated in accordance with applicable rules and standards. Specific Conditions 6, 6A and 7 of Permit DC51-14550 address the drainage ditch system. These conditions limit flow out of the drainage ditches to the rainy season and then only when the perimeter ditch flow does not exceed the upstream flow of the receiving water. The conditions also establish maximum effluent limits of 5 mg/l for CBOD5 and TSS, 3 mg/l for total nitrogen, 1 mg/l for total phosphorus and non-detectable for fecal coliform. Finally, the conditions require sampling and analysis of any off-site discharge from these ditches for flow, primary and secondary drinking water standards, dissolved oxygen, total nitrogen, total phosphorus, fecal coliform, pH, CBOD5, and TSS. The County accepted those conditions. Saddlebrook Village Percolation Pond System has operated pursuant to Permit DC51-145550, as needed through the final hearing. The surface water quality information required pursuant to Specific Conditions 6, 6A and 7 of Permit DC51-14550 has been presented to the Department. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permits DC51-140007 and DC51-14550. Also, the Department has never instituted an enforcement or compliance action due to discharges from the relief drainage ditches to off-site receiving waters. Saddlebrook Village Percolation Pond System was never upgraded to the .250 MGD capacity authorized by Permit DC51-14450. The County never applied for an operation permit covering this facility because the evolution of its wastewater system and changes in land use patterns resulted in the development of other disposal sites. Shady Hills Shady Hills Percolation Pond System is another of the County's percolation pond sites. Its design disposal capacity is .650 MGD, and its permitted capacity is .400 MGD. The County's initial construction permit application (#DC51-160307) for Shady Hills Percolation Pond System was filed in 1/89 or 2/89. The Department approved the County's application for Permit DC51- 160307 on 6/7/89. Permit issuance was preceded by an Intent to Issue dated 5/18/89 finding the County provided reasonable assurances that the facility could be constructed and operated according to applicable rules and standards. Initially, Permit DC51-160307 did not contain special conditions addressing the presence of drainage ditches. However, it was amended on 7/24/89, and the amended permit was assigned identification number DC51-160307A. Specific Conditions 3 and 4 of Permit DC51-160307A address the drainage ditch system and require that the drainage ditch system must be maintained to preclude off-site discharge of pollutants and that any water discharged off-site must meet state water quality standards. Shady Hills Percolation Pond System was constructed pursuant to Permit DC51-160307A, and has operated from late 1990 to present. Off-site discharges from the drainage ditches have not resulted in violations of water quality standards or violations of Permit DC51-160307A. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the relief drainage ditches to off-site receiving waters. The County never applied for an operation permit covering Shady Hills Percolation Pond System because the associated WWTP is being expanded and the County decided to wait until the expansion program is completed to obtain the operation permit. Lake Padgett Lake Padgett (a/k/a, Land O'Lakes) Percolation Pond System is another of the County's percolation pond sites. Its design and permitted disposal capacity is 1.0 MGD. The initial construction permit application (#DC51-159899) for the facility was filed in 1989. The Department granted the County's application for Permit DC51- 159899 on 5/16/89. The permit issuance was preceded by an Intent to Issue dated 4/27/89 finding that the County had provided reasonable assurances that the facility could be constructed and operated in accordance with applicable rules and standards. Specific Condition 15 of Permit DC51-159899 addresses the drainage ditches. It requires that any discharge of water from the ditch system to receiving waters must comply with Section 403.086, Florida Statutes (Grizzle- Figg standards). The Lake Padgett Percolation Pond System was constructed and operated pursuant to Permit DC51-159899. The County obtained an operation permit (#DO51- 205681) for the system on 3/26/92. Specific Condition 20 of the operation permit addresses the relief drainage ditch system, and requires that any discharge of water from the ditch system to the receiving waters comply with Section 403.086. The facility has operated pursuant to Permit DO51-205681 since 3/26/92 to present. Off-site discharges from the relief drainage ditches at the Lake Padgett Percolation Pond System have not resulted in violations of Permit DC51- 159899 or Permit DC205681. Also, the Department has never instituted an enforcement or compliance action as a result of discharges from the drainage ditches to off-site receiving waters. Construction of Oakley Grove The County conducted a site specific hydrogeologic and soil survey and effluent disposal study for the Oakley Grove site in late 1988. The County's initial construction permit application (#DC51-159755) for Oakley Grove Percolation Pond System was filed with the Department in 1/89. The Department granted the County's application for Permit DC51- 159755 on 6/22/89. The design and permitted disposal capacity for Oakley Grove is .600 MGD. The Oakley Grove permit issuance was preceded by an Intent to Issue dated 6/2/89 finding that the County had provided reasonable assurance that the facility could be constructed and operated in accordance with applicable rules and standards. Permit DC51-159755 does not contain any special conditions addressing the drainage ditches. One reason for this is that the surface water management permit issued by the Southwest Florida Water Management District ("SWFWMD") for this site contains conditions requiring the County to monitor any off-site discharges from the drainage ditches and prohibiting any violation of surface water quality standards. Consequently, there was no need for the Department to impose a similar permit condition. Oakley Grove Percolation Pond System was constructed under Permit DC51-159755. It was completed in 4/91 and has operated under that permit until approximately November, 1993. Oakley Grove Percolation Pond System's actual disposal rate during the period of operation has been about .200 MGD. The "Detrimental Reliance." The County paid $1,200,000 to acquire the Oakley Grove site. The County declined to purchase other potential sites that also would have cost about $1,200,000 in 1988, but would have cost about $1,800,000 in 1993. Total costs for property acquisition, engineering and construction at Oakley Grove have been approximately $2,800,000. In addition, the Shady Hills, Lake Padgett, and Handcart Road Percolation Pond Systems were constructed or modified at a cost of about $2,600,000 after issuance of the construction permit for the Oakley Grove project. To the extent that the County is unable to use the .600 MGD design disposal capacity at Oakley Grove, and cannot replace the deficit, the County will have insufficient disposal capacity. It would cost the County over $500,000 to modify the Oakley Grove site so that it could make some other practicable use of the property, and it would take about 18 months and about $2,800,000 to construct and place into operation a replacement disposal facility. During the time it would take to construct and place into operation a replacement disposal facility for Oakley Grove Percolation Pond System, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. The County began planning a percolation pond system for the Moon Lake Road site in 1988, and paid $600,000 to acquire the site. The County does not own any of the potential effluent disposal sites that it passed over when acquiring the Moon Lake Road site. It would have cost about $660,000 to acquire a similar site in 1993. If the County is not permitted to construct the Moon Lake Road site, it cannot make any practicable use of that site. It would take about 18 months and about $500,000 to construct and place into operation a replacement wastewater effluent disposal facility for the Moon Lake Road site. During that time, the County would have inadequate wet weather disposal capacity unless it can replace the deficit. Alleged Default Permit for Moon Lake Road. Upon receipt of the application for Permit DC51-189086, the Department sent the County a letter dated 12/12/90 requesting additional information. The 12/12/90 request for additional information cited some specific rules although not for each item of additional information sought. The County's consulting engineer responded, on behalf of the County, to the request for additional information by letter to the Department's Permitting Engineer, dated 2/28/91. The County response stated that the County disagreed with the Department's "judgment" that the County's application was incomplete. But it also stated in pertinent part: However, recognizing that responsible professionals disagree and the extent to which you are responsible for rejecting this work, we have attached appropriate information and clarifying responses to aid you in discharging your professional duty. . . . Assuming we receive authorization from our client and that you accept full professional responsibility for the decision we will consider modifying our documents accordingly. In any event we feel comfortable requesting that you consider our permit application complete. On 3/26/91, the Department requested additional information. Again, the request cited some specific rules although not for each item of additional information sought. The County never responded. Meanwhile, the parties began to discuss settlement. Finally, on 2/13/92, the Department issued its notice of intent to deny the application. Subject Matter Index of Agency Orders. The Department has no subject matter index of any of its orders taking action on permit applications between 1975 and 1981. After 1981, the Department has had a subject matter index of its orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings. There never has been a subject matter index of Department orders taking action on permit applications rendered in cases where there has not been a request to initiate formal or informal administrative proceedings. It would be impracticable, if not impossible, for the County to research such orders without a subject matter index. There is no central repository or computer database for all Department permit decisions. Some of its permitting files are located in its main Tallahassee office but many also are located in its seven district offices. Regardless of whether there is a central repository or computer database for orders taking action on permit applications rendered in cases where there has been a request to initiate formal or informal administrative proceedings, there is no evidence that, after 1981, there have been any such orders reflecting the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. It was not proven that the County was unable, by reason of permitting files being located in both the main Tallahassee office and the various district offices, to research the Department's actual permitting practice with respect to percolation pond systems with drainage ditches. Research at the seven district offices would have been more costly than if all files were centrally located, but there is no reason in this case to believe that the additional cost would have been prohibitive. Alleged Biased Review. David Rhodes is an unlicensed environmental specialist employed by the Department's Southwest District Office. His responsibilities mainly consist of reviewing geotechnical and hydrogeologic information submitted in support of permit applications. He was the Department's primary reviewer for geotechnical and hydrogeologic information submitted in support of the County's applications for Permit DO51-194674 (Oakley Grove) and Permit DC51-189086 (Moon Lake Road), as well as Permit DC51-169994 (Handcart Road Percolation Pond System). He recommended denial of all three permit applications. On 2/18/91, David Rhodes contacted a County employee, Marshall Hughes, concerning the County's construction permit application for the Handcart Road Percolation Pond System and suggested "off-the-record" that the County discharge its geotechnical consultant, Richard Mortensen, and replace the proposed percolation pond system with a sprayfield. The County declined to terminate Mortensen. When Mortensen learned of David Rhodes's attempt to have the County fire him, Mortensen contacted David Rhodes's supervisor, Judith Richtar, on 3/4/91 to discuss this incident. Richtar told Mortensen that she was unaware of the matter, but would look into it and get back in touch with him. When Mortensen did not hear from Richtar for two weeks, he called her. She told him that David Rhodes had denied everything. Mortensen later learned that David Rhodes made comments and insinuations to two of his other clients disparaging his work performance and suggesting that his engineering firm was not competent. Mortensen was not satisfied with Richtar's handling of his complaint. On 4/25/94, he contacted Richtar's superior, Dr. Richard Garrity. Garrity asked for a letter detailing the incident. Mortensen wrote Garrity a letter dated 5/29/91 describing David Rhodes's communication with Hughes and requesting that Richtar be disciplined for her handling of this situation. David Rhodes was suspended by the Department without pay; however, Richtar was not disciplined. David Rhodes also wrote Mortensen a letter of apology for his communication with Marshall Hughes. The letter states his comments to Hughes should not be interpreted as a personal vendetta against Mortensen's engineering firm and that he hoped the incident could be put behind them so they could continue working on future projects. Rhodes admitted that he felt embarrassed after Garrity suspended him without pay and suggested that he write a letter of apology to Mortensen. About 3 months after David Rhodes's letter of apology, another Department employee, Joe May, filed 5 complaints with DBPR against Mortensen's P.E. license. The complaints identified the Handcart Road, Moon Lake Road, Oakley Grove, Lake Padgett and Westchase projects. (All of these are County projects, except for Westchase.) The complaints identified Richtar as a "contact person." Richtar knew about May's complaints before they were filed with DBPR and acquiesced to being identified in them as a contact person. Like David Rhodes, May is an unlicensed environmental specialist employed in the technical support section of the Department's Southwest District Office in Tampa. His responsibilities include reviewing geotechnical and hydrogeologic information submitted in support of permit applications. However, he had no permit review involvement with respect to the Oakley Grove, Moon Lake Road, Handcart Road and Lake Padgett projects. Instead, the hydrogeological aspects of those projects were assigned to May's colleague, David Rhodes. Mortensen's attorney responded to May's 5 complaints in January, 1992. Copies of Mortensen's technical reports were attached to the response, including the site specific studies he had prepared for the Oakley Grove and Moon Lake Road sites. DBPR referred May's complaints and Mortensen's technical reports to an independent engineering firm, Geotechnical and Environmental Consultants, Inc. for review. This firm prepared a report on January 21, 1993. The report exonerated Mortensen and found that May's complaints were without merit. DBPR took May's 5 complaints before a probable cause panel of the Board of Professional Engineers. The panel found there was no probable cause to pursue them. Mortensen was informed of this finding by DBPR's 8/31/93 letter. The Department has allowed David Rhodes to remain on the permit review team on the County's permit applications for the Oakley Grove and Moon Lake Road Percolation Pond Systems despite the fact Mortensen is the geotechnical consultant on these projects. It is not found that the continued presence of Rhodes and Richtar on the permit review team for the County's permit applications demonstrates the Department's prejudice against the County and its consultants. It is not found that the Department's decisions to deny the County's permit applications in this case were interposed for an improper purpose or that the denials were based on the permit reviewers' personal animosity against the County and its consultants, rather than on the merits of the facilities. However, relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order as follows: In Case No. 92-1604: Denying the County's amended application for a permit (application no. DC51-189086) to construct a sprayfield reuse disposal system at .215 MGD and a rapid rate infiltration basin reuse (percolation pond) disposal system at .185 MGD at Moon Lake Road, subject to reconsideration after completion and review of a fracture trace analysis, a ground penetrating radar analysis (if needed), and an appropriate WQBEL study. If the application subsequently is granted, including among the specific conditions (1) a requirement for systematic load testing and monitoring of ground and surface water quality under the construction permit, as a condition for issuance of an operation permit, and (2), if appropriate, requiring monitoring, reporting and safely repairing subsidences, collapse features and sinkholes in and around discharge points. See, e.g., Specific Condition 12, Hudson WWTP Permit DC51-130307 (County Ex. 170). Case No. 92-1653: Denying the County's amended application for a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.600 MGD, subject to reconsideration after completion and review of: (1) additional systematic load testing, (2) systematic monitoring of ground and surface water quality, and (3) an appropriate WQBEL study. Granting the County a permit (application no. DO51-194674) to operate its Oakley Grove rapid rate infiltration basin reuse (percolation pond) disposal system at 0.075 MGD, thereby supporting the operation of its Wesley Chapel Wastewater Treatment Plant to the extent of .075 MGD pending load testing, systematic monitoring and load testing and reconsideration of the application for an operation permit for more capacity, up to .600 MGD. Denying the County's amended application for a permit (application no. DO51-194674) to operate its Wesley Chapel Wastewater Treatment Plant at .600 MGD and limiting its capacity to the available permitted disposal capacity. Case No. 92-1654: Denying, as moot, the County's application for a permit (application no. DO51-199516) to reactivate the operation of its Ryals Road rapid rate infiltration basin reuse (percolation pond) disposal system at .1075 MGD. RECOMMENDED this 31st day of October, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted but subordinate and unnecessary. Accepted and incorporated. Speculative and unnecessary. 6.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted but subordinate and unnecessary. 14.-30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-34. Accepted but subordinate and unnecessary. 35.-43. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 44. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 45.-53. Accepted and incorporated to the extent not subordinate or unnecessary. 54. Accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation should have been done. 55.-58. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. 59. Rejected as not proven. 60.-61. Accepted but subordinate and unnecessary. 62. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. However, additional testing and evaluation of soil permeability should have been done. 63.-76. Accepted but largely subordinate and unnecessary. Incorporated to the extent not subordinate or unnecessary. ("Southwest" in 76. should be "Southeast.") 77.-79. Accepted but subordinate and unnecessary. 80.-92. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 95.-113. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusions of law. First sentence, accepted but subordinate and unnecessary; second sentence, conclusion of law. Conclusions of law. 117.-122. Accepted but generally subordinate and unnecessary. (There is no indication in this case that the Wesley Chapel WWTP cannot operate as designed, as permitted for construction, and as constructed, subject to available disposal capacity.) 123.-148. Accepted but subordinate and unnecessary. As to (c) and (d), rejected as not proven (Oakley Grove, without WQBEL studies, and Ryals Road without further investigation into significance of down-warping.) Otherwise, accepted: as to Ryals Road, moot, subordinate and unnecessary; as to Oakley Grove, incorporated to the extent not subordinate or unnecessary. As to (c) and (d), rejected as not proven without WQBEL studies and fracture trace analysis and, if then indicated, GPR. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. 154.-155. Accepted but subordinate and unnecessary. 156.-158. Accepted and incorporated to the extent not subordinate or unnecessary. 159. Rejected as not proven that the use of the label "perimeter ditches" is "not accurate" or that the County used the term only because the Department did. Rather, both the Department and the County knew what was meant by "perimeter ditches" or similar terms, and the County only stopped using those terms in furtherance of its legal arguments in this case. Otherwise, accepted and incorporated. 160.-161. Accepted and incorporated to the extent not subordinate or unnecessary. 162. Accepted in the sense that the collection of reclaimed water in the ditches was not the primary goal of the drainage system. However, it was recognized that the collection of some reclaimed water in the ditches, especially under some weather conditions, was a necessary result of the use of the drainage features to improve the performance of the percolation ponds. 163.-166. Accepted and incorporated. 167.-169. Rejected as not proven that the Department has "changed position" without promulgating any rule. The County's own permitting experience has shown that the Department has had concerns about the performance of percolation pond systems with perimeter drainage features. Those concerns have evolved over time. Before April, 1989, those concerns were given expression in special conditions in permits. In April, 1989, F.A.C. Rules 17-610.517(2) and 17-610.522 were promulgated. The evidence does not prove that, before 9/15/89, the Department would not ever consider water in drainage ditches 100 feet from percolation ponds to be "reclaimed water." Accepted but subordinate and unnecessary. Rejected as not proven that approval or denial would be "automatic." The question was whether WQBELs or Grizzle-Figg standards would be applied. Rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. 173.-174. Accepted but unnecessary. (Current practice simply reflects the application of the current rules.) Rejected as not proven that the Department position had "completely changed," that the Department was "inalterably opposed to the ditches," or that the Department had before it the "reasonable assurances" provided at the other sites. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Again, rejected as not proven that WQBELs or Grizzle-Figg standards would be applied even if no reclaimed water ever made it into the ditches. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven; also, subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven. Rejected as not proven that the Department stipulated that F.A.C. Rule 17-610.517(2) does not apply. Also, conclusion of law. Accepted but subordinate and unnecessary. 186.-187. The implication that the Department does anything other than follow F.A.C. Rule 17-610.521 is rejected as not proven and as conclusion of law. 188.-190. Rejected as not proven that reclaimed water infiltrating ditches at Oakley Grove and Moon Lake Road has been or will be "virtually indistinguishable" from other ground water. Otherwise, generally, accepted, and 100 feet should be enough in most circumstances. But the facts of individual cases must be considered to determine whether treatment afforded by 100 feet makes reclaimed water "virtually indistinguishable" from other ground water so as to no longer be considered reclaimed water. Also, the concentration of discharges via a ditch system is another factor to be considered. 191.-192. Accepted and incorporated. 193.-194. Rejected as not proven that they could be modified "easily" or without decreasing the permittable disposal capacity. Accepted (assuming they are built as designed) and incorporated. Last word should be "dry"; otherwise, accepted and incorporated. Accepted and incorporated. 198.-201. Rejected in part as being subordinate to facts not proven and contrary to those found. (Cady's testimony explained some of the wet ditch bottoms, but not all of them, and not the wet slopes of the berms.) Other parts, accepted and subordinate to facts found. 202.-206. Generally accepted and incorporated to the extent not subordinate or unnecessary. (However, the approach makes certain assumptions, and the estimates or predictions will not be accurate if the assumptions are not. In the case of Oakley Grove, the assumptions concerning hydraulic capacity do not appear to have been accurate.) 207.-211. Rejected as not proven. See 202.-206., above. 212. Accepted and incorporated. 213.-219. Accepted and incorporated to the extent not subordinate or unnecessary. But see 202.-206., above. 220.-226. Rejected as not proven as to Oakley Grove. See 202.-206., above. Accepted as to Moon Lake Road. Accepted as predictions based on the given assumptions, particularly as to hydraulic capacity of the site. 227.-230. Recitation of the experts' opinions, accepted as accurate recitations. Rejected that plant-life utilization of inorganic nitrogen allays Fricano's concerns. To the exact contrary, his concern is that plant-life will utilize the inorganic nitrogen in ways organic nitrogen would not be used, leading to undesirable environmental impacts. Also, rejected as not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters. 231.-232. Accepted and incorporated. 233.-234. Rejected as not proven. (The County expert's opinion assumed only wet weather discharges. Also, not proven, without required WQBEL studies, that there will be no adverse environmental impact in downstream receiving waters.) 235.-239. Accepted and incorporated to the extent not subordinate or unnecessary. 240.-243. Accepted but subordinate and unnecessary. 244. Accepted and incorporated to the extent not subordinate or unnecessary. 245.-248. Accepted but subordinate and unnecessary. 249. Rejected as not proven that this can be done "easily." See 193.- 194., above. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 250.-251. Rejected as not proven. 252.-253. For both: last two sentences, rejected as not proven; the rest, accepted but subordinate and unnecessary. (F.A.C. Rule Chapter 17-600 forms did not apply.) Second and fourth sentences, rejected as not proven. The rest is accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. 257.-258. Accepted but subordinate and unnecessary. 259. Rejected as to the location of some ditches within 100 feet of the percolation ponds. Otherwise, accepted but subordinate and unnecessary. 260.-261. Accepted but subordinate and unnecessary. 262. Rejected as not proven. 263.-269. Accepted but subordinate and unnecessary. 270. Rejected as not proven. 271.-279. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted and incorporated to the extent not subordinate or unnecessary. (The "change in policy" is reflected in F.A.C. Rules 17-610.517(2) and 17-610.522.) Accepted and incorporated. As to (b) and (c), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. As to (c), rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 287.-289. Rejected as not proven and as conclusion of law. 290. Accepted and incorporated. 291.-293. Accepted and incorporated to the extent not subordinate or unnecessary. 294.-295. Conclusions of law. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. Accepted but subordinate and unnecessary. 299.-301. Accepted and incorporated. 302. Accepted but subordinate and unnecessary. 303.-308. Rejected as not proven without WQBEL studies. Rejected as not proven. Rejected as not proven. (The SWIM plans were not in evidence, and it is not clear whether they incorporate by reference the permitting requirements at issue in these proceedings.) 311.-312. Accepted but subordinate and unnecessary. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven without WQBEL studies. 316.-317. As to (g) and (h), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 318.-323. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 324. Conclusion of law. 325.-326. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) First sentence, rejected as not proven; rest, accepted but subordinate and unnecessary. 330.-331. Subordinate and unnecessary. See 353. 332. Rejected as not proven. 333.-334. Subordinate and unnecessary. See 353. 335. Last sentence of 335., rejected as not proven; otherwise, accepted. 336.-350. Subordinate and unnecessary. See 353. 351. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 352.-353. Subordinate and unnecessary. See 353. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Oakley Grove has operated as predicted by the modeling. Otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Conclusion of law. Accepted and incorporated. Accepted but subordinate and unnecessary. 361.-362. Rejected that it was an offer to settle this case. Otherwise, accepted but subordinate and unnecessary. 363.-367. Accepted but subordinate and unnecessary. 368.-371. Accepted and incorporated. 372.-401. Accepted but subordinate and unnecessary. 402. Rejected as not proven. (They result from a combination of the nitrates in the reclaimed water and nitrates imbedded in the soil matrix from prior agricultural use. Also, unlike the Oakley Grove site, nitrate exceedances were observed at Wildcat Grove before application of any reclaimed water.) 403.-405. Accepted and incorporated to the extent not subordinate or unnecessary. 406. Rejected as not proven that reclaimed water was being applied at the time. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 407. Rejected as not proven when nitrate exceedances will end. Otherwise, accepted and incorporated. 408. Rejected as not proven. See 406., above. 409. Rejected as not proven. See 407., above. 410.-416. Accepted but subordinate and unnecessary. 417. Accepted but subordinate and unnecessary. 418.-421. Rejected as not proven. 422. Accepted but unnecessary. 423. Rejected as not proven that their concerns are "unfounded" unless the source of reclaimed water is restricted to Deer Park WWTP. Otherwise, accepted but unnecessary. 424. Assuming performance in accordance with the application, accepted but unnecessary. 425.-430. Accepted and incorporated to the extent not subordinate or unnecessary. 431. First sentence, accepted and incorporated to the extent not subordinate and unnecessary; second sentence, rejected as not proven. 432.-445. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. (Without the fracture trace analysis and, if then indicated, the GPR requested by the Department.) First sentence, rejected as not proven; second sentence, conclusion of law. Rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 457.-465. Accepted and incorporated to the extent not subordinate or unnecessary. 466.-470. Rejected as not proven without WQBEL studies. 471. Last sentence, accepted and incorporated; rest, rejected as not proven without WQBEL studies. 472. Rejected as not proven. See 310., above. 473.-475. Accepted but subordinate and unnecessary. 476. Rejected as not proven. 477.-478. Accepted but subordinate and unnecessary. Rejected as not proven (that the discharges are.) As to (d), rejected as not proven without WQBEL studies. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven without WQBEL studies. Accepted but subordinate and unnecessary. Rejected as not proven and as conclusion of law. 484.-485. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven. (He disagreed with some of their opinions and the bases of some of the opinions.) Ultimate and penultimate sentences, rejected as not proven. The rest is accepted (although the fourth sentence is not complete) and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. First sentence, accepted and incorporated; rest, rejected as not proven. 491.-493. Accepted and incorporated to the extent not subordinate or unnecessary. 494. Accepted and incorporated to the extent not subordinate or unnecessary. 495. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, rejected as not proven. 496.-499. Accepted and incorporated to the extent not subordinate or unnecessary. 500. Last sentence, rejected as not proven; rest, accepted and incorporated to the extent not subordinate or unnecessary. 501. Accepted but largely subordinate and unnecessary. (Also, Saddlebrook was permitted under different rules; now, the special conditions can only be established after WQBEL studies.) 502.-504. Accepted and incorporated to the extent not subordinate or unnecessary. (However, it is understood that the constant head cell approach proved acceptable for purposes of estimating hydraulic capacity of the site but that it still did not accurately portray what would happen in the ditches and adjacent wetlands.) 505.-509. Accepted and incorporated to the extent not subordinate or unnecessary. 510. Rejected as not proven that the criticism was immaterial. See 502.- 504., above. 511. Last sentence, rejected as not proven that the DBPR consultant found the investigation and analysis to be "in accordance with sound engineering principles." Rest, accepted and incorporated to the extent not subordinate or unnecessary. 512.-524. Accepted and incorporated to the extent not subordinate or unnecessary. 525. Rejected as not proven that it would without fracture trace analysis and, if then indicated, the GPR. (Accepted that it might.) 526. Rejected as not proven that he was directed to "speak in favor of the County's permit application." 527. Accepted and incorporated to the extent not subordinate or unnecessary. 528. Except that 500 feet is a minimum setback distance, accepted and incorporated to the extent not subordinate or unnecessary. 529.-530. Accepted and incorporated to the extent not subordinate or unnecessary. 531. Rejected as not proven without fracture trace analysis and, if then indicated, the GPR. See 525., above. 532.-534. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 535. Accepted but subordinate and unnecessary. 536.-537. Rejected as not proven without WQBEL study. 538.-543. Accepted and incorporated to the extent not subordinate or unnecessary. 544. Rejected as not proven. (Rather, the County stated that it wanted its request for minor berm restoration work to be treated as exempt activity under F.A.C. Rule 17-4.040(1)(a) and that it wanted the installation of new groundwater monitoring wells to be handled under Ground Water Monitoring Plan Condition 3 of Permit DO51-142683 (the Oaks Royal/Ryals Road operation permit).) 545.-546. Rejected as not proven. Also, moot, subordinate and unnecessary. 547.-552. Accepted and incorporated to the extent not subordinate or unnecessary. 553.-557. Accepted but moot and unnecessary. Rejected as not proven. Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. Accepted but moot and unnecessary. Rejected as not proven (due to possible subsidence features.) Also, moot and unnecessary. 563.-566. Accepted but moot, subordinate and unnecessary. 567. Subordinate to facts not proven. 568. First sentence, rejected as not proven. Also, rejected as not proven that the Ryals Road sinkhole was "small." Otherwise, accepted. All moot and unnecessary. 569. Rejected as subordinate to facts not proven. 570. Last sentence, rejected as not proven. Otherwise, accepted. All moot, subordinate and unnecessary. 571.-573. Accepted but moot, subordinate and unnecessary. Last sentence and word "stable," rejected as not proven. (He stated that the clay was "competent" and that the GPR could detect sinkholes down to 20 feet, but he did not comment specifically on the significance of the down- warping across the site and in the southeast corner.) Otherwise, accepted. All moot, subordinate and unnecessary. Accepted but moot, subordinate and unnecessary. Rejected as not proven that it is "unknown." The evidence is not clear, but Richtar thought the sinkholes at Oaks Royal opened after construction. Otherwise, accepted but moot, subordinate and unnecessary. Accepted. Subordinate, in part to facts not proven and in part to facts supported by the greater weight of the evidence. Moot, subordinate and unnecessary. Except for characterization of sinkhole as being "small," accepted but moot, subordinate and unnecessary. Last sentence, rejected as not proven. (It is not a substitute for further investigation into the cause of the down-warping across the site and in the southeast corner.) Otherwise, accepted but moot, subordinate and unnecessary. Rejected as not proven. 581.-582. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected as not proven and conclusion of law. 583. Second sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 584. First and last sentences, rejected as not proven. Rest, accepted and incorporated to the extent not subordinate or unnecessary. 585. Accepted and incorporated to the extent not subordinate or unnecessary. 586. Accepted (assuming no new capacity) and incorporated to the extent not subordinate or unnecessary. 587.-588. Rejected as not proven. (It assumes no new capacity.) 589.-590. Accepted and incorporated to the extent not subordinate or unnecessary. 591. Rejected as not proven. 592.-593. Accepted and incorporated to the extent not subordinate or unnecessary. 594. Rejected as not proven. 595. Accepted but moot, subordinate and unnecessary. 596. Third sentence, not proven. Rest, accepted but moot, subordinate and unnecessary. 597.-599. Accepted but moot, subordinate and unnecessary. 600. Accepted (assuming no new capacity) but moot, subordinate and unnecessary. 601. Rejected as not proven. Also, moot, subordinate and unnecessary. 602. Accepted and incorporated to the extent not subordinate or unnecessary. 603.-604. Rejected as not proven. Rejected as not proven that he is "one of the most vocal opponents." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes contacted Hughes or that it was Rhodes's primary purpose to suggest Mortensen's discharge. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that Rhodes suggested Mortensen was incompetent. (Mortensen alleges he made "comments and insinuations" that "basically suggested that MEI was incompetent.") Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 610.-620. Accepted and incorporated to the extent not subordinate or unnecessary. 621. Rejected as not proven that Rhodes was attempting to have the County "fire" Mortensen. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 622. Rejected as not proven that Rhodes and Richtar were attempting to have the County "fire" Mortensen. Also, rejected as not proven that the "Department" will not be "truly impartial." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Relieving Rhodes and Richtar of their responsibilities with respect to these projects, if feasible, would have served to remove any appearance of bias and impropriety and also might have facilitated the resolution of these applications through more open and effective communication and cooperation. 623. Rejected as not proven. Also, subordinate and unnecessary. (The issue is whether they should be granted, not whether the reviewers should have recommended that they be granted.) Respondent's Proposed Findings of Fact. The Department's proposed findings of fact are numbered separately by facility: Oakley Grove Accepted and incorporated. "Rimmed" rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated. 3.-8. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (No "wastewater" would discharge from the ditch system.) Rejected as contrary to the greater weight of the evidence and facts found that this was "revealed" by staff inspections. (Under certain conditions, and at certain application rates, it was expected.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Subordinate to facts found. Rejected as contrary to the greater weight of the evidence and facts found. At the time of some if not all of the Department inspections, water was being diverted from some of the main stormwater collection ditches. 13.-18. Generally accepted and incorporated to the extent not subordinate or unnecessary. 19. "Wastewater effluent ponds" is inaccurate description. Otherwise, accepted and incorporated. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25. Rejected as contrary to the greater weight of the evidence and facts found, and as conclusion of law, that it is "typical." (The proposed finding seems to be describing a Level II WQBEL study.) 26.-29. Accepted and incorporated to the extent not conclusion of law. (29. again seems to refer to a Level II WQBEL study.) 30. Accepted and incorporated to the extent not subordinate or unnecessary. 31.-36. Accepted. Largely subordinate to facts found. Accepted and incorporated to the extent not subordinate or unnecessary. Conclusion of law. Accepted and incorporated. 40.-42. Conclusion of law. Accepted and incorporated. If "different nitrogen" means other than inorganic, accepted but subordinate and unnecessary. Rejected as unclear what "distinguishes the type and amount of nitrogen" and what "numerous conditions" means. Accepted and incorporated to the extent not subordinate or unnecessary. 47.-49. Accepted and incorporated to the extent not conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not conclusion of law. 52.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Accepted and incorporated to the extent not conclusion of law. 57.-58. Accepted and incorporated to the extent not conclusion of law. Rejected as conclusion of law and as not proven what is "typical." Accepted and subordinate to facts found. 61.-62. Accepted and incorporated to the extent not conclusion of law. 63.-82. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 83.-102. Accepted and incorporated to the extent not subordinate or unnecessary. 103. Rejected as not clear from the evidence whether reclaimed water was being applied on those dates. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 104.-106. Accepted and incorporated to the extent not subordinate or unnecessary. 107.-110. Accepted but subordinate and unnecessary. (These violations were temporary aberrations in otherwise proper operation of the facility. They were corrected and do not bear significantly on the question whether the County has given reasonable assurances.) Last sentence, rejected as contrary to the greater weight of the evidence and facts found. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. (The manual was maintained at a different location.) Moon Lake Road 1.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. One was proposed in evidence presented at the hearing but not in the application. 15.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20.-24. Accepted and incorporated to the extent not conclusion of law. 25.-26. Conclusion of law. Accepted and incorporated to the extent not subordinate or unnecessary. "Any" is rejected as contrary to the greater weight of the evidence. Accepted and incorporated. 30.-32. Accepted. Subordinate to facts found. Accepted and incorporated to the extent not conclusion of law. First sentence, unclear; second sentence, accepted but subordinate and unnecessary. Accepted. Subordinate to facts found. 36.-38. Accepted and incorporated to the extent not conclusion of law. "Effluent" rejected to the extent that it infers something other than "reclaimed water." Rejected as to Deer Park WWTP; accepted as to the others. Accepted and incorporated. 41.-43. Accepted and incorporated to the extent not subordinate or unnecessary. 44.-49. Accepted and incorporated to the extent not subordinate or unnecessary. 50.-52. Rejected as contrary to the greater weight of the evidence and facts found that the rainfall/evapotranspiration differences are great enough to have a significant impact on site capacity. The Tampa Airport data was the best to use at the time of the application. Other, closer data became available later and were considered as part of the County's rebuttal case. 53. Rejected as contrary to the greater weight of the evidence and facts found that the design of the model (constant head cells, boundaries, and single- layer) has a impact on site's hydraulic capacity. (It is understood that the significance of the design of the model is that it does not show flow into the ditches and adjacent wetlands or the relationship between surficial and Floridan aquifers.) 54.-55. Accepted and incorporated to the extent not subordinate or unnecessary. 56. Rejected as contrary to the greater weight of the evidence and facts found. 57.-58. Accepted and incorporated to the extent not subordinate or unnecessary. See 53., above. Rejected as contrary to the greater weight of the evidence and facts found. Accepted but subordinate and unnecessary. 61.-63. Rejected as contrary to the greater weight of the evidence and facts found. 64.-65. Accepted but subordinate and unnecessary. 66. Rejected as contrary to the greater weight of the evidence and facts found. See 50.-52., above. Limiting storage needs to the .215 MGD design sprayfield capacity only, there is no real question as to the needed storage capacity. Neither differences in the rainfall/evapotranspiration data nor differences in the source of the reclaimed water would make storage capacity deficient. Ryals Road 1.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that it was "effectively withdrawn." Otherwise, accepted and incorporated. Rejected as not supported by the evidence that a $400 fee was paid on July 12, 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 13.-14. Accepted and incorporated to the extent not subordinate or unnecessary. 15.-26. Accepted but moot, subordinate and unnecessary. 27. Rejected as contrary to the greater weight of the evidence. Also, moot, subordinate and unnecessary. 28.-33. Accepted but moot, subordinate and unnecessary. 34. Rejected as not supported by the evidence that the residential density is "high". Otherwise, accepted but moot, subordinate and unnecessary. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire David M. Caldevilla, Esquire de la Parte, Gilbert & Bales, P.A. P.O. Box 2350 Tampa, Florida 33601-2350 Douglas H. MacLaughlin, Esquire Francine M. Ffolkes, Esquire Keith C. Hetrick, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for determination is whether Respondent should issue Petitioner an environmental resource permit and a concurrent private lease to use sovereign submerged lands.
Findings Of Fact Application and Project Site On or about February 25, 1997, Petitioner and her husband, through a consulting engineer, Charles Isiminger (Isiminger), filed an application (First Proposed Project) with Respondent for an environmental resource permit (ERP) and for consent to use submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees). The First Proposed Project proposed to perform dredging on sovereign submerged land. Petitioner and her husband wanted to perform dredging to allow them to navigate a private vessel, estimated to range from 30 to 40 feet, from their dock situated on their property, on which they reside, to an existing navigation channel leading to navigable waters. They already own a small private vessel and were going to purchase a larger vessel estimated to range from 30 to 40 feet in length. The proposed dredging would allow Petitioner and her husband to navigate the larger vessel to navigable waters. The property owned by Petitioner and her husband is on the upland property (Upland Property) in Palm Beach County, Florida, adjacent to and east of the Lake Worth Lagoon. The proposed project is located immediately east of Bingham Island on the eastern shore of the Lake Worth Lagoon. The present dock is a 90-foot wooden dock extending from their Upland Property to the Lake Worth Lagoon. The Lake Worth Lagoon is designated as Class III water of the State of Florida. The First Proposed Project consisted of the following: dredging approximately 3,500 cubic yards from 3.2 acres of open tidal waters to increase the depth of the water leading up to the site of the dock to (-)5 feet mean low water (MLW); installation of four navigational channel markers; mangrove trimming; and authorization to use state-owned submerged lands upon which the dredging was to be performed. Respondent denied the application for the First Proposed Project. Petitioner and her husband requested that the application remain open but later withdrew the application. On January 20, 1999, Petitioner, through Isiminger, filed another application (Second Proposed Project) with Respondent for an ERP and for consent to use submerged lands owned by the Board of Trustees. The Second Proposed Project contained revisions in an attempt to address concerns raised by Respondent with the First Proposed Project. Petitioner reduced the area proposed to be dredged to approximately 2,700 cubic yards of sovereign submerged land material from 0.6 acres of the Lake Worth Lagoon. Additionally, the proposed navigational water depth was changed to (-)5 feet National Geodetic Vertical Data (NGVD) [(-)4 feet MLW]. Because Petitioner's proposed dredging was on sovereign submerged land, Respondent's staff was required and did review the Second Proposed Project, as they had the First Proposed Project. Respondent issued a Preliminary Evaluation Letter (PEL), explaining Respondent's position on the importance of the seagrasses and seagrass habitat located at Petitioner's site. Further, Respondent's staff met with Petitioner's representatives to discuss the Second Proposed Project, Respondent's position, and other options or recommendations. On May 22, 2000, Respondent issued a Consolidated Notice of Denial to Petitioner's application for the Second Proposed Project. Petitioner submitted a Proposed Mitigation Plan and later, a Revised Proposed Mitigation Plan. The purpose of each was to propose alternative and joint measures to mitigate any adverse effects of the Second Proposed Project, including the restoration of seagrass habitat, placement of channel markers and signage, minimization of the proposed dredging, and/or contribution of financial assistance toward seagrass transplantation/preservation efforts. Additionally, on July 16, 2001, Petitioner further modified its Second Proposed Project, reducing the bottom width of the proposed channel to 40 feet (previously, 80 feet), thereby reducing the proposed dredging to approximately 1,400 cubic yards (previously, approximately 2,700 cubic yards) of sovereign submerged land material from 0.29 acres (previously, 0.6 acres). This reduction was the minimum amount of dredging that would allow Petitioner to safely navigate a vessel the size desired by Petitioner, which is 30 to 40 feet. Respondent did not change its position on the denial of Petitioner's Second Proposed Project. Impact To Seagrasses And Other Natural Resources Primarily two species of seagrasses, Halophila species, will be affected by Petitioner's Second Proposed Project: Halophila johnsonii ("Johnson's seagrass") and Halophila decipiens ("Paddle grass"). Johnson's seagrass and Paddle grass are the two main seagrasses at the proposed project site. A functioning and viable seagrass habitat exists in the state-owned submerged land that Petitioner proposes to dredge. Johnson's seagrass comprises primarily the habitat, with some Paddle grass mixed-in. Under the federal endangered species, Johnson's seagrass is listed as a threatened species. Johnson's seagrass is fragile, diminutive in size, and loosely attached to the sediment. As a result, its growth is more easily disturbed. Johnson's seagrass grows in patchy, non-contiguous distributions and can grow in low densities of Paddle grass, as it does at the proposed project site. Johnson seagrass at the proposed project site is also sparse and appears year after year. Paddle grass is an annual seagrass, regrowing from a seed bank. Paddle grass continuously reappears at the proposed project site. The proposed project site is a suitable habitat for Johnson's seagrass and Paddle grass. Johnson's seagrass is extremely productive. It grows rapidly and, after ten to 15 days, synoecizes and decomposes, thereby becoming a part of the detrital food chain. Consequently, the biomass of Johnson's seagrass and other Halophila species turns over rapidly. Johnson's seagrass also provides organic material to the sediment due to the rapid decomposition. The organic material is used by fauna that graze on decomposing plant and animal tissue. As a result, Johnson's seagrass provides the same benefits as larger seagrasses by providing a variety of ecological functions and comprising part of a healthy estuarine ecosystem. Petitioner's Second Proposed Project removes all seagrasses in the dredged area so that a private navigational channel can be created. Furthermore, the proposed channel requires periodic maintenance dredging. Petitioner provides no certainty as to the frequency maintenance dredging will be required to maintain the desired depth of the proposed private access channel. The initial dredging would kill all functioning and viable benthic infauna populations existing at the proposed dredging site. Regeneration would occur but it would take at least a year. Each maintenance dredging would again kill all the functioning and viable benthic infauna populations and the cycle of regeneration would begin again, with regeneration taking at least one year. Dredging by itself has not been demonstrated to be beneficial to the reproduction of Johnson's seagrass by way of recruitment by fragmentation. The effects of maintenance dredging on water quality at the proposed project site would not be favorable as compared to water quality in and around an inlet area.2 Water flow and flushing rate (energy levels) are lower at the proposed project site. Water clarity at the proposed site is much less clear due to the much lower flushing rate. Site evaluations were performed and considered not only the proposed dredging area, but also the area on both sides of the proposed project and the conditions surrounding the area of the proposed project. Site evaluations demonstrated the existence of a healthy estuarine ecosystem. When ERP applications are reviewed by Respondent, as in Petitioner's situation, Respondent requests the assistance of Florida's Fish and Wildlife Conservation Commission (FWCC) and the Florida Marine Research Institute. FWCC's Bureau of Protected Species Management in the Office of Environmental Services reviewed Petitioner's Second Proposed Project at the point in time when Petitioner proposed to dredge an 80 foot wide channel, therein proposing to dredge approximately 2,700 cubic yards of sovereign submerged land material from 0.6 acres of Lake Worth. FWCC considered the proposed project area, the surrounding area, and the conditions surrounding the area of Petitioner's proposed project. FWCC made findings, which included that Johnson's seagrass was found by Respondent at the proposed project; that FWCC found Johnson's seagrass at docks within 2,000 feet both north and south of the proposed project site; that the proposed project site is a portion of a functioning seagrass community; that the level of seagrass damage will likely increase from the proposed project as a result of additional impacts from erosion due to sloughing of the channel sides and elevated turbidity from sediment resuspension; that the seagrass species found at the proposed project site provide many environmental functions in addition to being a food source for numerous organisms, including marine turtles and manatees; and that the preservation of seagrass communities, especially when dealing with a threatened species such as the manatee and sea turtle, by addressing the cumulative loss of seagrass habitat has become increasingly important. FWCC recommended that, due to its findings and to the loss of a significant portion of an existing seagrass community, Petitioner's Second Proposed Project not be approved. At the time of hearing, only one application, reviewed by FWCC in conjunction with Respondent, for a private dredging project that impacted seagrasses had been recommended for approval by the FWCC. That particular dredging project was denied by Respondent on the basis of seagrass impact. The Marine Research Institute also recommended that Petitioner's Second Proposed Project not be approved on the basis of seagrass impact. Impact To Marine Life--Manatees Florida has designated manatees as an endangered species. The federal government considers manatees as an endangered species and includes them as a protected species. Manatees have been observed traveling and feeding in and around the Bingham Islands, which are approximately 200 yards from the proposed project site. Manatees have been observed traveling and feeding in the area of and around the proposed project site. The area along the shoreline of the proposed project and around Bingham Island is a year round, slow speed managed area zone for manatee protection. The manatee protection zone includes Petitioner's existing dock and the water front along Petitioner's property. A habitat for seagrasses is provided around and by the proposed project site. Among other things, seagrasses provide forage for manatees. Johnson's seagrass and Paddle grass, which are both present on Petitioner's proposed project site, are among the seagrasses on which manatees feed. The manatee forging habitat would be reduced in that the foraging habitat at the proposed project site would be eliminated by the proposed dredging. Petitioner has submitted a mitigation proposal which, as will be addressed later, fails to offer a reasonable assurance for the restoration of Johnson's seagrass or Paddle grass at the proposed project site once removed. Water Quality Petitioner provided reasonable assurance that standards for water quality will not be violated. Moreover, water quality is not at issue in this matter.3 Direct, Secondary, And Cumulative Impacts A seagrass community exists at the proposed project site and has existed since, at least, 1996. Lug worms and amphipods are housed at the proposed project area. No known macroinvertebrates can live only on Johnson's seagrass or Paddle grass. Petitioner's Second Proposed Project would remove the seagrass community, thereby removing the functioning system, and such would impact the functions that the seagrass community provides to fish, wildlife, and listed endangered and protected species, manatees and sea turtles. Johnson's seagrass and manatees are the two main threatened and endangered species of concern which will incur unacceptable impacts. Nearby seagrass resources will incur secondary impacts by the proposed dredging. The accumulation of organic debris vegetation and dense accumulation of decaying matter has been observed in dredged channels in the Lake Worth area, near Boynton Beach. Fish utilize seagrass communities as a habitat and as a food source and the seagrass communities are, therefore, a popular fishing spot. Removal of the seagrass community would cause a loss of productivity, diversity, and function provided by the seagrass resource. Conservation of fish and wildlife, including threatened species or their habitats, will be adversely impacted by the proposed dredging. The proposed project site has a persistent, threatened seagrass community. Manatees and sea turtles feed on such a seagrass community. Adjacent surrounding areas also contain seagrass communities. Petitioner's proposed dredging will affect the adjacent surrounding areas, expanding beyond the footprint of the proposed dredging. Unacceptable cumulative impacts upon wetlands and other surface waters in the Lake Worth Lagoon will be caused by Petitioner's proposed dredging project. In the past, Respondent has received similar applications to Petitioner's application, requesting to dredge private access channels, in the Lake Worth Lagoon area. Respondent estimates that 42 property owners, situated along the shoreline of Lake Worth Lagoon in and around Petitioner's shoreline site, can also apply for dredging channels for single family use. Petitioner's Second Proposed Project will occur on state-owned submerged land. Petitioner applied for an ERP, which is a regulatory approval, and for consent to use state-owned submerged lands, which is a proprietary authorization. The regulatory approval and the proprietary authorization are a linked process in that Respondent cannot grant one and deny the other. Once the regulatory approval was denied, the proprietary authorization was automatically denied. Furthermore, the proprietary authorization was also denied because Respondent determined that Petitioner's Second Proposed Project was contrary to the public interest in that Respondent determined that the proposed project would cause adverse effects to fish and wildlife resources and overall, cause adverse effects to a public resource. Petitioner's Mitigation Proposal Petitioner submitted a Revised Mitigation Plan to Respondent. The Revised Mitigation Plan's main aim, relating to this matter, is to offset the loss of seagrass that will occur as a result of Petitioner's Second Proposed Project. Petitioner proposes, among other things, removing the existing Johnson's seagrass at the functioning habitat at the proposed project site and replanting the Johnson's seagrass to an artificially engineered area by Petitioner. The scientific community, which deals with seagrasses, has many uncertainties or unknowns regarding Johnson's seagrass, such as Johnson's seagrass' recruitment, how it grows, how the patches of Johnson's seagrass move around, and the conditions that are a perquisite to sustain a population. Moreover, the scientific community is not certain of what conditions are required for Johnson's seagrass to be effectively transplanted. At the time of the hearing, even though methodology existed for conceivable successful transplantation, no successful transplantation of any Halophila species for more than a few months had been demonstrated. No successful transplanting to produce a persistent bed of Johnson's seagrass had occurred. Transplantation studies of Halophila species have occurred in the northern part of Indian River Lagoon. The sediment in the Indian River Lagoon is firm, whereas the sediment at the proposed project site is silty and fine. The evidence does not demonstrate that the methodology for transplantation used at the northern part of Indian River would be successful at the proposed project site. At the time of hearing, no tried, tested, and successful scientific protocol for transplanting of Johnson's seagrass existed. Furthermore, at the time of hearing, no successful mitigation project with Halophila species existed. Petitioner's Revised Mitigation Plan is at present experimental and lacks reasonable assurances that the transportation of the Johnson's seagrass will be successful. Respondent has adopted the rules of the South Florida Water Management District (SFWMD) relating to acceptable mitigation ratios. The revised mitigation plan failed to meet the acceptable mitigation ratios in the rules. Additionally, the revised mitigation plan failed to meet the acceptable mitigation ratios in Respondent's operations and procedures manual. Respondent's manual does not list Johnson's seagrass or Paddle grass because neither has been successfully transplanted as part of a mitigation project. The SFWMD's rules adopted by Respondent provide that an ERP application, as submitted or modified, must be denied if the ERP application fails to meet the conditions of issuance. Moreover, the rules do not require the acceptance of mitigation. Respondent determined that Petitioner's Second Proposed Project, as last amended, failed to meet the conditions for issuance of an ERP. Petitioner's Revised Mitigation Plan is inappropriate. Alternatives Proposed By Respondent As an alternative to Petitioner's Second Proposed Project, which purpose is to dredge to obtain navigable access to Petitioner's property for a larger boat, Respondent proposed alternatives to the proposed project to Petitioner. Respondent proposed the construction of a longer dock that would extend to deeper water; exploration of the option of purchasing a larger shallow-draft boat; and housing the larger boat at a marina. Regarding extending the dock, Petitioner would need to extend the dock approximately 312 feet, which would cause the existing dock to measure approximately 400 feet long. The Town of Palm Beach (Town) requires docks to extend no more than 150 feet from the Town's bulkhead line. Extending a dock longer than 150 feet would be a violation of the Town's code. A variance would need to be requested by Petitioner. The Town has never approved an application for such a variance. A representative of the Town advised Petitioner's representative that there would be no chance of Petitioner being successful in obtaining such a variance and applicants have been discouraged from making application for the variance. In the past, Respondent, in its proprietary capacity, has appeared before city councils on behalf of applicants to request the city councils to waive their regulatory rules to allow for construction of longer docks. Respondent has appeared before councils in Manalapan, City of Lake Worth, and City of West Palm Beach, and the councils have approved Respondent's requests in each situation. In the Lake Worth Lagoon, one council approved a private dock extending 500 feet. Petitioner never requested Respondent to appear on her behalf before the Town to request a waiver or a variance of the code prohibiting docks beyond 150 feet. Petitioner never made application to the Town for a waiver or variance of the 150 feet limitation for the length of docks. Respondent's alternative proposal of a longer dock is reasonable. Petitioner was unreasonable in not requesting the assistance of Respondent and requesting a variance or waiver from the Town. Petitioner failed to make inquiry as to Respondent's experience with applicants in the Town. Regarding housing the larger boat that Petitioner intends to purchase at a marina, such an alternative is contrary to the purpose of Petitioner's Second Proposed Project. This alternative is considered a "no project" alternative because it contemplates not performing the project on state-owned submerged lands. As to exploring the option of purchasing a larger shallow-draft boat, such a larger boat would require Petitioner to secure the larger boat to buoy and go to and from the dock in a smaller boat. Securing the larger boat with a buoy in the navigable water would be a navigational hazard and, therefore, not allowed. Further, going back and forth from the dock on a jet boat would more than likely result in prop dredging and scarring of seagrass. This alternative is also considered a "no project" alternative. Respondent's suggesting of "no project" alternatives is permissible and acceptable under Respondent's proprietary rule. The alternatives suggested by Respondent are reasonable alternatives to Petitioner's dredging project, which eliminate or significantly reduce the impacts of the dredging project on the public resources.
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 denying the application of Mrs. Irwin Kramer for an environmental resource permit and consent to use sovereign submerged lands to dredge a private navigation channel in the Lake Worth Lagoon. DONE AND ENTERED this 26th day of February, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 26th day of February, 2002.
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should approve applications to renew consumptive use permits filed on behalf of the West Coast Regional Water Supply Authority (Authority), Pinellas County (County), and Freeman F. Polk (Polk), and if so, what conditions should be included in the permits. The District proposes to issue renewed permits to these applicants with specified conditions, but Polk seeks certain additional condition; to the permits sought by the Authority and the County, and similarly, the Authority and County seek the imposition of additional conditions on Polk's permit. The parties seek these additional conditions to insure that the permitted uses will not interfere with any legal use of water existing at the time of the applications, and will also not cause the water table to be lowered so that lake stages or vegetation are adversely and significantly affected on lands other than those owned, leased or controlled by the applicants.
Findings Of Fact The following findings are based upon relevant stipulations of the parties: The Authority is a special taxing district of the State of Florida encompassing Pasco, Pinellas and Hillsborough Counties, which was created by interlocal agreement on October 25, 1974. It is responsible for the design, construction, operation and maintenance of facilities in locations, and at times, necessary to insure that an adequate supply of water will be available to all persons residing within its boundaries. The District is an agency of the State of Florida which is charged with regulating consumptive uses of water in a sixteen county area, including Pinellas, Pasco and Hillsborough Counties. It has implemented a permitting program that requires all persons seeking to withdraw water in excess of an annual average daily rate of 100,000 gallons, and a maximum daily rate of 1,000,000 gallons, to obtain a consumptive use permit. The Cypress Creek Wellfield is located on a 4,895 acre site in central Pasco County, lying east of U.S. 41 between State Roads 52 and 54. The District owns 3,623 acres of this Wellfield, and the remaining 1,272 acres are owned by the City of St. Petersburg. Construction on the Cypress Creek Wellfield commenced in 1974, and it currently consists of thirteen production wells, numerous monitor wells, several thousand feet of transmission lines, two 5 gallon storage tanks, a pump station and several buildings. The City of St. Petersburg, Pinellas and Pasco Counties, and the District have transferred their rights and privileges in this Wellfield, as well as the Wellfield facilities, to the Authority by contracts entered into in November, 1973, and August 1974. Water produced at the Cypress Creek Wellfield is sold at cost by the Authority to users which include the City of St. Petersburg and Pinellas County. The water produced at this Wellfield comprises 29% of the County's total water system demand (20 million gallons a day), and 25% of the City of St. Petersburg's total system demand (10 million gallons a day). These water systems serve approximately 470,000 and 330,000 persons, respectively. In March 1978, the District issued a six-year consumptive use permit to the Authority, the City of St. Petersburg, and the County authorizing an annual average and maximum daily withdrawal of 30 million gallons a day from the Cypress Creek Wellfield. The Authority also began a detailed ecological monitoring program in, and around, this Wellfield in 1978. A three-year permit was then issued to the Authority in December, 1982, authorizing withdrawals of 30 million gallons a day, annual average, and 40 million gallons a day, maximum daily, from the Wellfield. The District determined by Order No. 82-28, dated December 1, 1982, that an average annual daily rate of withdrawal of 30 million gallons, and a maximum daily rate of withdrawal of 40 million gallons from the Cypress Creek Wellfield was a reasonable-beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. An application for renewal of the Cypress Creek Wellfield consumptive use permit at the quantities permitted in 1982 was filed with the District on November 7, 1985, by the Authority, the County and the City of St. Petersburg. The continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons is needed in order to meet the water supply demands of the residents of Pinellas and Pasco Counties, is in the interest of residents of Pinellas County, and will not cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the District. The regulatory level of the potentiometric surface established by the District for the Cypress Creek Wellfield has never been exceeded by prior withdrawals of water at permitted rates. Continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons will not cause the potentiometric surface level to be lowered below sea level, or any regulatory level established by the District, will not cause the surface level of water to be lowered below any minimum established by the District, and will not significantly induce salt water encroachment. The Cross Bar Ranch Wellfield is located on a 8,060 acre site in north central Pasco County, lying approximately one mile south of the Pasco-Hernando County line, and immediately east of U.S. 41. The Cross Bar Ranch Wellfield property has been owned by Pinellas County since 1976. Wellfield construction was completed in 1981. By agreement entered into on April 11, 1979, the Authority is obligated to sell the County water produced from the Cross Bar Ranch Wellfield, but any excess not currently being used by the County may be sold to other members of the Authority. A significant amount of water produced at Cross Bar Ranch is pumped to the Cypress Creek Wellfield where it is combined with that Wellfield's water, and then distributed to Pinellas and Hillsborough Counties, as well as the City of St. Petersburg, for further distribution. The water produced at these two Wellfields in combination accounts for about 60% of the County's total water system demand. Following pump tests performed from 1977 to 1979, as well as an ecological monitoring program, the District issued a modified consumptive use permit to the Authority by Order 80-9, dated February 6, 1980, for Cross Bar Ranch Wellfield. The District determined that withdrawals at an average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons from Cross Bar Ranch Wellfield was a reasonable beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. On November 7, 1985, the Authority and County jointly applied to the District for renewal of the consumptive use permit for Cross Bar Ranch Wellfield at the current permitted quantities of an annual average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons. These withdrawal rates are needed in order to meet present and future water supply demands of the residents of Pinellas, Pasco and Hillsborough Counties, provide water for environmental mitigation, and make up water when one or more production facilities cannot pump at their permitted levels. The withdrawal of water from Cross Bar Ranch Wellfield at permitted rates will not cause the level of the potentiometric surface to be lowered below sea level, or any regulatory levels established by the District, and will not significantly induce salt water encroachment. Jumping Gully is the only stream or watercourse in the vicinity under the influence of this Wellfield, and the District has not established a minimum rate of flow for Jumping Gully. Hydrologic data collected from monitor wells located at the Cross Bar Ranch Wellfield show the potentiometric surface has been above mean sea level during the operation of this facility. The District has renewed consumptive use permits for a period of ten years for the City of St. Petersburg, and the City of Lakeland Power Plant. The Authority owns, leases or otherwise controls the area within both the Cypress Creek and Cross Bar Ranch Wellfields. Polk owns, leases or otherwise controls the property identified in his amended permit application of July 26, 1988. Both the Authority's and Polk's permit applications were filed on the proper forms, and otherwise comply with the District's procedural requirements for consumptive use permits. Each party has standing to participate in this case. The proposed uses of water which are the subject of these proceedings are reasonable beneficial uses, and in the public interest. The only permit criteria that remain at issue in this case are set forth in Rules 40D-2.301(1)(c) and (2)(e), Florida Administrative Code. The following findings of fact are based upon the evidence presented at the hearing: Polk was first issued a consumptive use permit for Ft. King Ranch in August, 1981, after both the Cypress Creek Wellfield and Cross Bar Ranch Wellfield had each been permitted to withdraw 30 million gallons per day. Polk's permit authorized him to withdraw ground water at an average annual rate of 420,000 gallons per day, and a maximum rate of approximately 1.94 gallons per day for irrigation of pasture grass and citrus, and cattle drinking water. A temporary consumptive use permit issued to Polk in August, 1981, was signed by him and states on its face that these additional groundwater withdrawals were necessary because of drought conditions. A modified permit was issued to Polk by the District in July, 1982, authorizing him to increase his withdrawals to an average annual rate of approximately 1.94 gpd, and a maximum rate of 5.9 gpd. Polk's wells are not metered. Prior to August, 1981, Polk did not have man made surface or groundwater withdrawal on his property. As it relates to this proceeding, the property owned, leased or otherwise controlled by Polk is known as the Ft. King Ranch, which is generally located between the Cross Bar Ranch and Cypress Creek Wellfields, and consists of approximately 6,000 acres. The Ft. King Ranch is comprised of five tracts which were separately acquired by Polk commencing in January, 1969, and ending in 1984. By 1978, Polk had acquired two of these five tracts. He leased a third tract beginning in 1971, before acquiring an ownership interest in 1981. These three tracts were designated parcels A, B, and C, and are located in the eastern and northern portion of the Ranch. These three parcels were the only tracts owned, leased or otherwise controlled by Polk at the time the first Cypress Creek and Cross Bar Ranch Wellfield permits were issued in 1978. The western tracts were acquired in 1982 and 1984, and were also referred to as the AL-BAR Ranch at hearing. Polk uses the Ft. King Ranch for a cow-calf operation, and also sod farming and seeding. From 1969 to approximately 1978, there was sufficient surface water on the Ft. King Ranch for these farming activities to be carried out without irrigation or wells. Water holes used by cattle were always wet, and lakes on the property were used for swimming and fishing. His pasture, hay, seed and sod grasses received moisture solely from rainfall. However, Polk did not establish the amounts of water used in his operations prior to the issuance of Wellfield permits. In 1976, parcels A, B, and C were used for these purposes, although Polk has frequently changed the specific size and location of acreages devoted to these land uses. In order to correct flooding that occurred on portions of the Ft. King Ranch during times of heavy rainfall, Polk sought the advice of the Soil Conservation Service in the mid-1970's. He was advised to construct a series of dikes and swales to control the flow of surface water on his property. During 1980 and 1981, Polk constructed a network of swales and ditches to divert and control the flow of surface water from portions of the Ranch needing less water to those requiring wetter conditions, such as his sod and seed operation. The swales interconnect lakes and ponds on his Ranch. He also constructed a levee on the property, and installed a lift pump. These activities have converted most of the eastern portion of his ranch to improved pasture and sod grasses, and virtually eliminated native vegetation. Polk had no professional help in the construction of his ditch-swale systems, or the levee. Beginning in approximately 1980, drier conditions were experienced at the Ranch. One of the ten driest years on record in this area occurred in 1980, and continued drought conditions in 1981 caused the District's Governing Board to declare a water shortage, and impose water conservation measures throughout the District. Some lakes and cypress swamps dried completely and failed to recharge to pre-1980 levels after rainfall. Due to reduced water availability since 1980, including drought conditions in 1985, Polk's calf weights have decreased, while the number of non-breeding cows has increased. Feed bills have increased due to reduced hay and grass production at the Ranch. Polk's bahia seed and sod crops have also declined since 1980 due to reduced surface water levels. Adequate and stable moisture is essential for seed production, and while such conditions did exist on the Ft. King Ranch prior to 1980, they have been absent since 1980. Due to the drier conditions which he noted in 1980 and 1981, Polk filed a formal complaint with the District in 1981. A site visit and pump test were conducted, and the District concluded that the Wellfields were causing less than a one foot drawdown in the Ft. King Ranch water table, and that dry conditions at his ranch were due primarily to drought. In 1985, Polk complained to the District again, and requested that it augment two lakes within the Ranch. After review of surrounding lake conditions, the District declined his request since Polk's lakes had not experienced water level declines atypical of lakes well beyond the influence of the Authority's Wellfields. Studies of water level elevations in the area indicate that the effect of Cypress Creek Wellfield pumpage is quite small when compared to natural changes in water levels due to variable rainfall and evapotransporation. Rainfall in this region is variable, and there has been a significant negative trend over time in surficial and potentiometric water levels that predates Wellfield pumpage. According to J. B. Butler, who was accepted as an expert in hydrology, the swales, dikes and levees constructed by Polk have not caused the water table or surface water level reductions experienced since late 1981. Rather, these are an attempt to divert and retain water on the property, and even in their absence, there would be no significant flow of surface water across Ft. King Ranch from an east to west direction. In addition, Butler testified that a fence line berm constructed along the northern border of the Ranch is an insignificant obstacle to the flow of surface water from the north to south across the Ranch when compared to topographic features, and has had no impact on the water tables of the Ranch. However, evidence introduced at hearing established that as early as 1981, the staff of the District concluded that the swales and elevated fence lines could be aggravating low water conditions by increasing evaporation and leakance, and by excluding surface water which would have entered the Ft. King Ranch from the north. The Authority offered competent substantial evidence to rebut the Butler testimony. Thomas Schanze, who was accepted as an expert in agricultural engineering, testified that Polk's elevated berm along his northern fence line has significantly restricted the flow of surface water onto Ft. King Ranch, and has contributed to the eastern portion of the Ft. King Ranch becoming a closed watershed. Between 1984 and 1986, approximately 700 million gallons of surface water have been excluded by Polk's water control and diversion activities. This exclusion has resulted in a diminished water table within the Ft. King Ranch of about one half foot compared with the water table on the northern side of the berm. Surface water cannot flow onto Polk's property until water levels immediately north reach flood stage. Aerial photographs of the Ft. King Ranch and surrounding properties show that the Polk property is significantly drier than surrounding properties, which include predominant wetlands. If the dry conditions experienced by Polk had been due to pumpage, the same dry conditions should be observed on surrounding properties and lands nearer the Wellfields. However, aerial photos show that lands closer to the Wellfields than Ft. King Ranch are less dry than the Ranch itself. This supports the position of the District and the Authority that Polk's own activities have had a significantly greater impact than pumpage on surface and groundwater levels. The reduction in productivity of Polk's farming activities is reasonably related to his northern berm which serves as a dike, preventing water from flowing onto Ft. King Ranch, as well as drought conditions existing in 1980, 1981 and 1985. The cumulative effect of water excluded from this property and dry weather conditions is significant, and accounts for decreased production. It was not established through competent substantial evidence that Polk's decreased production has resulted from any hydrologic impact of Wellfield pumpage. The District's expert in hydrology and ground water modeling, Robert G. Perry, concluded that significant water table declines on Ft. King Ranch due to pumping from Cypress Creek and Cross Bar Ranch Wellfields could not be confirmed. Through groundwater flow modeling and statistical analysis, he concluded that a one foot water table drawdown contour resulting from withdrawals at the rate of 30 mgd for 30 days without any recharge would not reach the Ft. King Ranch. Even in a worse case scenario of 120 days without recharge and pumpage at Cypress Creek of 30 mgd for 30 days, then 40 mgd for 30 days, and finally 30 mgd for 60 days, Perry concluded that the one foot water table drawdown contour would not reach Polk's Ranch. There is some evidence that under a worse case condition, pumpage at the Cross Bar Ranch Wellfield could result in the one foot water table drawdown contour intersecting a small portion of the western tract of the Ft. King Ranch, but this tract was not owned or leased by Polk in 1978, when the first Wellfield permits were issued. Conflicting evidence based upon steady state modeling by Craig Hutchinson of the United States Geological Survey was introduced on behalf of Polk to establish that the cumulative impact of the Wellfields could induce a significant drawdown in the water table in the area between the Wellfields, including the Ft. King Ranch. However, this evidence is rejected as less credible than the analysis conducted by Park and Phillip Davis, who was also accepted as an expert in hydrology and groundwater flow modeling. The steady state approach used by Hutchinson is inappropriate for analyzing the effects of wellfield withdrawals on the water table, because the water table is a dynamic system which is never at steady state. The transient groundwater simulation model used by the District is better suited for an analysis of impacts to the water table, although it does tend to overpredict such impacts, since it accounts for changes in rainfall. The Hutchinson analysis is also unreliable since it is based upon artificially derived antecedent water levels, rather than observed levels. Finally, he did not have required predevelopment water table data, and thus, could not verify water table predictions derived from his steady state model. A transient groundwater flow computer model used by Terry Bengtsson to estimate greater potentiometric surface and water table declines due to withdrawals from the Wellfields than predicted by Park or Davis was discredited, and shown to be unreasonable, by the results of a 28 day pump test in September and October, 1988. According to Rick Stebnisky, who was called on behalf of Polk and accepted as an expert in groundwater hydrology, the combined effect of pumping at the Cross Bar Ranch and Cypress Creek Wellfields has resulted in a significant reduction in water table and potentiometric surface levels at Ft. King Ranch, with such reductions being greater in the southern areas than northern portions of Polk's property. He testified that drawdowns have been noted since pumping began at Cypress Creek in April, 1976, with greater drawdowns occurring closest to the Wellfields, and for this reason drawdowns appear to be related to pumping rather than drought conditions. However, Stebnisky's conclusions were drawn from an overly simplistic hydrographic analysis which ignored factors other than pumpage, such as reduced rainfall, regional trends, surface drainage and non-wellfield pumpage, according to Robert G. Perry, an expert in hydrology and groundwater modeling. Stebnisky was not accepted as an expert in groundwater flow modeling. It was also established that some of the basic assumptions used by Stebnisky in predicting drawdowns were inaccurate, and not based upon accepted hydrologic principles. Therefore, when weighed and considered against other expert testimony, including that of Perry and Dr. J. I. Garcia-Bengochea, Ph.D., an expert in hydrology and environmental engineering, the testimony of Stebnisky is found to lack credibility. While Dr. Garcia-Bengochea agreed with the testimony of Stebnisky that the potentiometric surface and water table levels on the Ft. King Ranch had been somewhat reduced due PAGE 18 MISSING individual well meters, regardless of whether on-site wetlands are being augmented, and is sufficiently accurate for use in evaluating the impact of withdrawals on the water table and Floridan Aquifer. As a condition for renewal of the Authority's permits, the District has required that flow measuring devices or methods be installed for each augmentation discharge point, although generally augmentation of lakes and wetlands within wellfields is not metered. The allowable drawdown levels of potentiometric surface for the Cypress Creek Wellfield established by the District have never been reached. The lowest levels occurred during severe drought conditions in 1981 and 1985. However, even during these times, the lowest potentiometric surface level was 8.53 feet above regulatory levels. Notwithstanding the testimony of Philip Waller, an expert in hydrology, pumping from Polk's irrigation Wellfields have not had a significant impact on the Cypress Creek Wellfield because Waller's model assumptions are extreme, according to Robert G. Perry, whose field of expertise includes groundwater modeling. These unrealistic assumptions included that Polk would operate his irrigation wells at maximum capacity for 120 days, and that there would be no recharge, even though irrigation, like rainfall, would be expected to result in some recharge. Even under these extreme assumptions, Waller's modeling only produced a one foot drawdown at Cypress Creek Wellfield, which would still be well within regulatory levels established by the District, based upon data for the drought years of 1981 and 1985. Since 1979, Cypress Creek Wellfield has averaged approximately 30 million gallons per day, with the maximum withdrawal occurring in May, 1983, when it averaged 34.2 mgd. From 1981 to 1985, the average withdrawals from Cross Bar Ranch Wellfield remained stable at 13 mgd, but since 1986, the pumpage has increased to over 15 mgd due, in part, to the use of water from Cross Bar to compensate for contaminated wells shut down at the Eldridge-Wilde Wellfield. For purposes of Rule 40D-2.301(1)(c), Florida Administrative Code, the District does not consider the use of water that occurs naturally, without pumping or diversion, for use on crops or other agricultural purposes to be, an existing legal use of water, because it does not require a permit. The District does not apply Rule 40D-2.301(2)(e) to protect agricultural crops, but rather to protect naturally occurring vegetation. When an application to renew a consumptive use permit is reviewed by the District, and that renewal does not seek an increase in the quantity of water withdrawals, "legal users" are those present prior to the original permit. On May 17, 1988, a Final Order was entered in DOAH Case No. 88-0693R declaring the District's Rules 40D-2.301(3)(b), (c), and (d), Florida Administrative Code, which otherwise would apply in this proceeding, to be an invalid exercise of delegated legislative authority. The Authority's applications were declared complete by the District on June 18, 1987, and the District staff recommended issuance of these permits on August 14, 1987. Modifications to the draft permit were made by the District on December 28, 1988, and these modified draft permits are acceptable to the Authority. The latest draft permits contain stated conditions which include the requirement that the Authority directly measure the amount of water it uses to augment the water level of on-site wetlands. On February 22, 1989, the Authority and the District filed a Joint Notice of Settlement in Case Number 87- 4644 by which they settled their dispute as to the duration of consumptive use permit renewals for the Wellfields, and provided for a ten year permit for Cypress Creek, and a six year permit for Cross Bar Ranch Wellfield. Polk submitted his original permit application on April 13, 1987, and then amended his request on July 26, 1988. The District has proposed to issue a draft permit to Polk, with stated conditions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order approving the consumptive use permit applications of the West Coasts Regional Water Supply Authority and Pinellas County for the Cross Bar Ranch and Cypress Creek Wellfields, with conditions proposed by the District, and also approving the consumptive use permit application of Freeman F. Polk, with conditions proposed by the District. DONE AND ENTERED this 10th day of July, 1989, in Tallahassee, Florida. 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 10th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-4644, 87-4645, 87-4647, & 88-1169 Rulings on the District's Proposed Findings of Fact: Adopted in Findings 6, 21. Rejected as unnecessary. Adopted in Finding 6. Adopted in Finding 38. Adopted in Finding 21. Adopted in Finding 11. Adopted in Finding 38. 8-11. Adopted in Finding 20. 12. Adopted in Finding 21. 13-14. Adopted in Finding 22. Adopted in Finding 27. Adopted in Finding 25. 17-19. Adopted in Findings 25, 26. 20-22. Adopted in Findings 26, 28. 23-48. Adopted in Findings 31 through 35. 49-60. Adopted in Findings 28 through 30. 61-64 Adopted in Finding 36. 65-68. Adopted in Finding 37. Rulings on the Authority's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 4, 10. Adopted in Finding 2. 4-6. Adopted in Finding 39. Adopted in Finding 18. Adopted in Findings 21, 22. Adopted in Finding 40. 10-11. Adopted in Finding 3. 12-14. Adopted in Finding 36. Adopted in Findings 6, 38. Adopted in Finding 5. 17-19. Adopted in Findings 6, 21. 20. Adopted in Findings 7, 16. 21-23. Adopted in Finding 41. 24-25. Adopted in Finding 9. 26-27. Adopted in Finding 36. Adopted in Findings 11, 38. Adopted in Finding 10. Adopted in Finding 11. 3132 Adopted in Findings 11, 21. 33. Adopted in Findings 12, 16. 34-36. Adopted in Finding 41. Adopted in Finding 21. Adopted in Finding 24. Adopted in Finding 29. Adopted in Finding 24. 41-42. Adopted in Finding 22. 43-45. Adopted in Finding 25. Adopted in Finding 26. Adopted in Finding 25. Adopted in Finding 26. Adopted in Findings 26, 28. 50-53. Adopted in Finding 20. Adopted in Findings 20, 21. Adopted in Finding 20. Adopted in Finding 37. Rejected as not based on competent substantial evidence. Adopted in Finding 41. Rejected as unnecessary. 60-62. Adopted in Finding 35. 63. Adopted in Finding 36. 64-70. Adopted in Findings 34, 35. 71-76. Adopted in Findings 33 through 35. 77-78. Rejected as unnecessary and irrelevant. 79-80. Adopted in Finding 34. 81-87. Adopted in Finding 32. 88-91. Adopted in Findings 26 through 35. 92-96. Adopted in Findings 29, 30, but otherwise Rejected as unnecessary and cumulative. Adopted in Finding 28. Adopted in Finding 29. 99-100. Adopted in Finding 30. 101-102. Adopted in Finding 37. Rejected as unnecessary and cumulative. Adopted in Finding 37. Rejected in Finding 37. Adopted and Rejected in part in Finding 37 Ruling on Pinellas County's Proposed Finding of Fact: (The County also adopted the Authority's Proposed Findings.) 1. Rejected since the statement proposed by the County is not a finding of fact, but simply a statement on the evidence. Evidence which was not admitted at hearing has not been considered. Rulings on Polk's Proposed Findings of Fact: Adopted in Finding 3. Adopted in Findings 9, 10. Adopted in Finding 21. Rejected in Findings 6, 11, 21. Adopted in Finding 22. Adopted and Rejected in part in Findings 25 through 27. 7-8. Rejected in Findings 25 through 27. Adopted in Finding 25. Adopted in Finding 24. 11-13. Rejected in Findings 24, 29, 30. Adopted in Finding 37. Rejected as argument on the evidence and not a proposed finding of fact. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Douglas M. Wyckoff, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Thomas E. Cone, Jr., Esquire 202 Madison Street Tampa, Florida 33602 John T. Allen, Jr., Esquire Chris Jayson, Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Bram D. E. Canter, Esquire 306 North Monroe Street Tallahassee, Florida 32302 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34699-6899
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue Is Petitioner guilty of violations of Rule 64E-6.022(1)(p), Florida Administrative Code, improper installation or repair of on-site sewage disposal system, and Rule 64E-6.022(1)(l), Florida Administrative Code, gross negligence and incompetence which causes monetary harm to a customer as charged in the Citation for Violation dated April 4, 2000, and if so, what penalty should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Pursuant to Section 381.0065, Florida Statutes, the Department has the authority and jurisdiction to regulate the construction, installation, modification, abandonment or repair of on-site sewage treatment and disposal systems (used interchangeably with "septic tank" or "drainfield" throughout this Recommended Order). Septic tank repairs may be made only by individuals who have qualified with and are licensed by the Department and subject to the standards of ethics and competence established by Department rules. See, Section 489.553(3), Florida Statutes (1999). At all times material to this action, Petitioner has been registered with the Department as a septic tank contractor and serves as Vice President of Sales for Allstate Septic Tank Company (Allstate). Allstate is owned by Jack Dunn (Dunn). Petitioner has been employed by Allstate since 1982. At the time Petitioner commenced her employment with Allstate, the company was owned by an individual who sold the business to Dunn in 1995. From 1982 to 1995 when Dunn acquired the business, Petitioner worked as Allstate's office manager. Dunn, not Petitioner, has final authority over how Allstate's work is performed and what accommodations, if any, will be made with dissatisfied customers or with regulatory authorities. At all times material to this case, Cheryl and Kelly Sadar (Owners) owned and resided in a home at 1770 SW 30th Place, Ft. Lauderdale. Like the other homes in this neighborhood, Owners' property relied upon an on-site drainage and sewage system. The drainfield at the Owners' property had been replaced in 1988 and had operated without problem until December 1998. In December 1998, Cheryl Sadar called Allstate and asked the Company to "check out" odors coming from the grass lawn on Owners' property. Pursuant to that request, Petitioner and Dunn visited the Owners' property. In January, 1999, Allstate pumped the Owners' septic tank and told Mrs. Sadar that if the pumping did not work, it would be necessary to replace the existing drainfield. Pumping did not work and in March 1999, the Owners authorized Allstate to replace the existing drainfield with a new drainfield system. Petitioner and Dunn differ from the Owners in their testimony regarding what, if any, requirements Allstate sought to impose upon the Owners in order to assure that the drainfield to be installed by Allstate would work properly, and what, if any, limits the Owners placed upon Allstate's ability to exercise professional judgment as to where the drainfield should be installed. For example, Petitioner claims that Owners forbade Allstate the use of the eastern border of Owners' property because they wanted to store a boat there. Department witnesses deny that Owners ever sought to impose such a restriction. The parties also disagree as to the significance of certain restrictions which the parties agree were in fact imposed. For instance, there is no dispute that Owners were unwilling to cut down a favorite oak tree, despite Allstate's recommendation that they do so. But the parties differ in their recollection of what, if anything, was said to Owners about the impact of that decision upon Petitioner's ability to deliver a working drainfield. The factual disputes regarding limitations allegedly placed upon Petitioner by Owners are resolved in favor of the Department. Having considered the demeanor of the witnesses during their testimony, together with all of the facts and circumstances surrounding the dealings of the witnesses, the undersigned concludes that Owners placed no restrictions upon Allstate in the performance of its contract, save the requirement that the favorite oak tree be left standing. In that instance, the undersigned concludes that the Owners testified truthfully that Allstate informed them that the new drainfield may need to be replaced as soon as a decade after its installation if the oak tree remained, and Owners accepted that particular risk. There was undisputed testimony that other homes in the Owners' neighborhood have drainfields adjacent to mature oak trees, and that proximity has never been known to cause a drainfield failure within months of installation. It is not believable that Owners allowed Allstate to install a drainfield with knowledge that Allstate expected the system to fail within months if the oak tree was not removed. Similarly, there was no evidence, save for the testimony of Petitioner and Dunn, that Owners ever owned a boat, or had plans to buy one. Indeed, Gerald Timmons, who replaced the failed Allstate drainfield with a system which was operating without problems through the date of the hearing, testified that Owners made no attempt to restrict the location of the drainfield, and that he in fact installed his system over the eastern border of the property where Petitioner claimed Owners had denied access. By contract dated March 1, 1999 (Composite Exhibit 17, "the contract"). Allstate undertook to provide a new drainfield to Owners for the price of $2,300.00. Pursuant to the contract, Petitioner undertook to provide the Department with information required to secure necessary Department permits. In the permit application, Petitioner misrepresented the condition of the ground below the drainfield as having suitable soil conditions for the proposed work. In fact, the opposite was true. The presence of the pre-existing drainfield rendered the site unsuitable and indeed, doomed to fail. The site evaluation provided by Petitioner represented an adequate amount of sand in the drainfield area and an observed water table depth of 48 inches below the existing grade. Unrebutted expert testimony demonstrates that these representations could not possibly have been true, due to the presence of the pre-existing drainfield which Petitioner failed to excavate prior to installing a new system directly on top of the pre-existing drainfield. Petitioner testified that she personally probed five feet down the center of the area where the Allstate drainfield was to be placed but found no sign of the pre-existing drainfield which was there. This testimony is belied by the more credible the testimony of the Department's experts, who agreed that if Petitioner's account of her probe were accurate, the pre-existing drainfield would necessarily have been discovered. Petitioner's permit application inaccurately represented the amount of available space for the installation of a drainfield as being limited to 375 square feet. In fact, the owners' property would accommodate a 523 square foot drainfield. The separation between the bottom of the Allstate drainfield system and the water table depth required for the competent installation of a drainfield was not met by Petitioner. The parties expended a great deal of time establishing the hard feelings between Owners and Allstate and between Department officials and Allstate, particularly its owner Dunn. Witnesses aligned with both sides testified at length to various incidents of boorish behavior by Allstate employees and by the Owners. Similarly, there appears to be a history of distrust between at least some Department officials and Dunn, which was exacerbated between November 1999 and March 2000, when the efforts by the Department to mediate the dispute between Allstate and Owners were unsuccessful. Unquestionably, relations between Allstate and Owners deteriorated rapidly upon the failure of the drainfield, but the various exchanges of angry words and the Department's unsuccessful effort to persuade Allstate to partially compensate Owners have no relevance to the question of whether Petitioner did or did not commit the violations alleged in the Administrative Complaint, and have not been considered by the undersigned in resolving those issues. In this case, Allstate did not provide Owners with a written guarantee of its work, and there is no legal requirement that it do so. Neither did Allstate provide Owners with any written disclaimers or instructions for using the system or warnings that certain types of activities would cause the system to fail. Allstate company policy permits the installation of drainfield systems even in cases where Allstate believes the system is not likely to work. The Petitioner's installation was completed in March 1999 and Owners paid Allstate the $2,300.00 contract price. Beginning in the fall of 1999, Owners began to experience problems with the Petitioner's drainfield. Owners contacted Allstate, which rejected Owners' request that it take corrective action. Owners also contacted the Department, which made efforts to mediate between Owners and Allstate. The evidence is inconclusive as to why the Department's mediation efforts failed. At one point, Allstate seemed agreeable to making a partial refund to Owners, but later Dunn changed his mind. However, Allstate and Petitioner have always asserted that the failure of the drainfield was entirely the fault of the Owners. Indeed, throughout the history of Allstate's dealings with Owners, throughout the final hearing and in Petitioner's proposed Recommended Order, Petitioner has offered a variety of theories as to why her work failed. One suggestion was that the use of a lawnmower contributed to the drainfield's failure. Petitioner also insisted that Owners used too much water, causing hydraulic overload and precipitating the failure of Petitioner's system. Petitioner asserts that Owners' water usage increased by 8.85 percent from March 1999 when Petitioner's system was installed to November 1999, when the system began to fail. And in its Proposed Recommended Order, Petitioner asks for the first time that the undersigned take judicial notice that on October 19, 1999, Hurricane Irene "swept through the Fort Lauderdale area", leaving substantial rainfall-related damage in its wake; however, no evidence was offered linking the rains of Hurricane Irene to Owners' drainfield failure. The unanimous weight of expert opinion, save that of Allstate's owner Dunn, is that the various theories advanced by Petitioner as reasons for the failure of her work--singly or in combination--are insufficient to explain the sequence of events at the Owners' property as it relates to the problems they experienced with the Allstate drainfield system. By March 2000, it was clear that the Allstate-installed drainfield had failed. Jerry's Septic Tank Service and its owner, Gerald Timmons, were engaged by the Owners to evaluate the situation and make necessary repairs. A repair permit was issued to Jerry's by Department on March 13, 2000, and work was commenced. Almost immediately it became apparent that an old drainfield was located immediately beneath the Petitioner's drainfield. Jerry Timmons immediately called Owners to notify them of this finding. Owners, in turn, called Department official Jay Morgenstern to advise of Timmons' discovery. Allstate was also informed of the discovery of the preexisting drainfield. Petitioner and Dunn each conversed with Jerry Timmons about the pre-existing drainfield adjacent to the Allstate drainfield. At all times after Allstate was notified of the failure of its system, Allstate and Petitioner continued to maintain that the failure was the fault of the Owners, not Allstate, and that the preexisting drainfield either was not there in March 1999 or was not discoverable by Allstate. Morgenstern personally conducted an inspection and verified Timmons' finding that old drainfield material was clearly visible. Thereafter, the Department issued the Citation for Violation. The services provided by Petitioner in March 1999, constitute an improper and incomplete repair and installation. The improper, incomplete services provided by Petitioner in March 1999, resulted in Owners being required to expend $2,800.00 for the services of Jerry's Septic Tank to excavate the pre-existing drainfield, along with the defective Allstate system, and to provide a functioning septic tank system, in addition to the $2,300.00 previously paid to Allstate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Petitioner guilty of the unlawful conduct alleged in the Administrative Complaint and disciplining her therefor by fining her in the total amount of $1,000.00. DONE AND ENTERED this 19th day of October, 2000, in Tallahassee, Florida. FLORENCE SNYDER RIVAS 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 19th day of October, 2000. COPIES FURNISHED: Judith C. Elfont, Esquire Department of Health 2421-A Southwest Sixth Avenue Fort Lauderdale, Florida 33315-2613 William E. Stacey, Jr., Esquire 320 Southeast 9th Street Post Office Box 460053 Fort Lauderdale, Florida 33346 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A-02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption". The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970). Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old. The plugs do not show any signs of any recent dredging in or around the mouths of the canals. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code. Canals which are used for navigation have to be periodically dredged to maintain navigational access. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.
Findings Of Fact Respondent James Tucker seeks a modification of a previously approved permit to extend the depth of the dredging proposed to -8 feet from the previously approved -5 feet. Respondent proposes to maintenance dredge a 35 x 275 foot canal aid entrance channel into Santa Rosa Sound to a maximum depth of -8 feet; to permanently moor the USS Showboat, a motorless concrete ship to piling driven in the canal; to place riprap around the ship with a 3 foot drainage pipe leading through the riprap on both sides of the vessel to allow drainage to pass the vessel and enter Santa Rosa Sound; and thereby to create a holding pond between U.S. 98 and the vessel. Tucker owns the property containing the canal located immediately west of Petitioner's property. The canal serves as a drainage conduit for several acres in the vicinity of and including U.S. 98 Highway and drainage enters the canal by a 3 foot culvert under U.S. 98. The canal is largely full of sediment and is anaerobic. Although fish are caught in the Sound off the church's and Respondent's property, there are no grass beds that would be disturbed by the proposed dredging. Witnesses who testified to the existence of grass beds had not actually entered the water to verify the existence of such beds. While there are numerous other sources of pollution entering Santa Rosa Sound, including the City's discharge of sewage effluent, the discharge through the canal here under consideration is significant. By dredging the canal, mooring the vessel therein, and installing riprap around the vessel, a holding pond will be created between the vessel and the end of the canal which abuts U.S. 98. While the volume of this holding pond is not as large as would be required to adequately accommodate the drainage area served, the proposed holding pond will improve existing conditions. The 3 foot conduits to be installed in the riprap will provide drainage from the settling pond to Santa Rosa Sound, which drainage should contain less pollutants entering Santa Rosa Sound than now enter. The proposed project would improve the water quality of Santa Rosa Sound. The dredging at the entrance of the canal of state owned lands will cause no appreciable biological damage to the bottom and the dredged area will be allowed to return to its normal depth after the vessel is moored, i.e. there will be no maintenance dredging to maintain this -8 foot depth. Respondent Tucker will install silt screens and maintain turbidity limits within those prescribed by DER during dredging. Tucker has also consented to a condition to be placed in the permit that he be required to maintain the settling pond by future dredging when necessary. Although the City Council of Ft. Walton Beach voted to deny any request to relocate the USS Showboat to any place in Ft. Walton Beach, Exhibit 8 indicates that the property containing the canal is zoned C-2 and relocating the vessel to this site would be in conformity with the City's zoning laws.
