Findings Of Fact As planned, Phase I of Foxwood Lake Estates will consist of 300 mobile homes, which would require treatment of up to 45,000 gallons of sewage per day. The proposed sewage treatment plant would have a capacity of 46,000 gallons per day and would be capable of expansion. It would discharge treated, chlorinated water into a completely clay-lined polishing pond that has been designed for the whole of Foxwood Lake Estates at build-out; capacity of the polishing pond would be three times the capacity necessary for Phase I by itself. From the polishing pond, water is to flow into one or both of two evaporation-percolation ponds, either of which would be big enough for all the sewage expected from Phase I. The sides of these ponds would be lined with clay and a clay plug would constitute the core of the dike on the downslope side of each pond. According to the uncontroverted evidence, effluent leaving the treatment plant for the polishing pond would have been effectively treated by the latest technology and would already have been sufficiently purified to meet the applicable DER water quality requirements. The applicant proposes to dig the triangular polishing pond in the northwest corner of the Foxwood Lake Estates property, some 400 feet east of the western property line. The evaporation-percolation ponds would lie adjacent to the polishing pond along an axis running northwest to southeast. Their bottoms would be at an elevation of 164.5 feet above mean sea level and they are designed to be three feet deep. The evaporation-percolation ponds would lie some 300 feet east of the western property line at their northerly end and some 400 feet east of the western property line at their southerly end. A berm eight feet wide along the northern edge of the northern evaporation-percolation pond would be 50 feet from the northern boundary of the applicant's property. Forrest Sawyer owns the property directly north of the site proposed for the evaporation-percolation ponds. He has a house within 210 feet of the proposed sewage treatment complex, a well by his house, and another well some 300 feet away next to a barn. Two or three acres in the southwest corner of the Sawyer property are downhill from the site proposed for the ponds. This low area, which extends onto the applicant's property, is extremely wet in times of normal rainfall. Together with his brother and his sister, Charles C. Krug owns 40 acres abutting the applicant's property to the west; their father acquired the property in 1926. They have a shallow well some 100 feet from the applicant's western property boundary, and farm part of the hill that slopes downward southwesterly from high ground on the applicant's property. Sweetgum and bayhead trees in the area are also a money crop. Charles C. Krug, whose chief source of income is from his work as an employee of the telephone company, remembers water emerging from this sloping ground in wet weather. Borings were done in two places near the site proposed for the ponds. An augur boring to a depth of six feet did not hit water. The other soil boring revealed that the water table was 8.8 feet below the ground at that point. The topsoil in the vicinity is a fine, dark gray sand about six inches deep. Below the topsoil lies a layer of fine, yellow-tan sand about 30 inches thick. A layer of coarser sand about a foot thick lies underneath the yellow-tan sand. Beginning four or five feet below the surface, the coarser sand becomes clayey and is mixed with traces of cemented sand. Clayey sand with traces of cemented sand is permeable but water percolates more slowly through this mixture than through the soils above it. The applicant caused a percolation test to be performed in the area proposed for the ponds. A PVC pipe six feet long and eight inches in diameter was driven into the ground to the depth proposed for the evaporation-percolation ponds and 50 gallons of water were poured down the pipe. This procedure was repeated on 14 consecutive days except that, after a few days, the pipe took only 36 gallons, which completely drained into the soil overnight. There was some rain during this 14-day period. Extrapolating from the area of the pipe's cross-section, Vincent Pickett, an engineer retained by the applicant, testified that the percolation rate of the soils was on the order of 103 gallons per square foot per day, as compared to the design assumption for the ponds of 1.83 or 1.87 gallons per square foot per day. Water percolating down through the bottoms of the evaporation- percolation ponds would travel in a southwesterly direction until it mixed with the groundwater under the applicant's property. It is unlikely that the ponds would overflow their berms even under hurricane conditions. Under wet conditions, however, the groundwater table may rise so that water crops out of the hillside higher up than normal. The proposed placement of the ponds makes such outcropping more likely, but it is impossible to quantify this enhanced likelihood in the absence of more precise information about, among other things, the configuration of the groundwater table.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant the application on the conditions specified in its notice of intent to issue the same. Respectfully submitted and entered this 17th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Carlton Building Tallahassee, Florida 32301 Telephone: 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1980. COPIES FURNISHED: Andrew R. Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David M. Levin, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the objections of the City of Pembroke Pines and the Green Meadows Civic Association to South Broward Utility, Inc.'s, proposal to extend its water and sewer service area should be sustained.
Findings Of Fact South Broward Utility, Inc. (South Broward), is a corporation engaged in the business of providing water and wastewater service to the public in Broward County, Florida. That business is subject to regulation by the Florida Public Service Commission (PSC). South Broward's water and wastewater treatment facilities are located in the Town of Davie, and it currently provides water and sewer services to residents of that municipality. Included within the area of the Town of Davie currently served by South Broward are the lands bordered on the north by Sterling Road, the south by Sheridan Street, and the west by Dykes Road (S.W. 160th Avenue). On February 4, 11, and 18, 1989, South Broward published a notice of extension in the Florida Lauderdale News/Sun-Sentinel, a daily newspaper of general circulation published in Broward County, Florida, in accordance with Rule 25-30.030(2), Florida Administrative Code. The notice provided that South Broward would file an application with the PSC pursuant to Section 367.061, Florida Statutes, to amend its certificates of public convenience and necessity to allow South Broward to provide water and sewer service to the east half of Section 5, Township 51 South, Range 40 East, Broward County, Florida. Such area may commonly be described as those lands lying immediately west of Dykes Road to S.W. 166th Avenue, and from Stirling Road on the north to Sheridan Street on the south. On February 24, 1989, South Broward mailed a copy of the aforementioned notice to all local, county and state governmental agencies and all other persons required by Section 367.041(4), Florida Statutes, and Rule 25-30.030(2), Florida Administrative Code. Objections to the notice were filed with the PSC by the City of Pembroke Pines (Pembroke Pines) and the Green Meadows Civic Association (Green Meadows). In its objection, Pembroke Pines contended that it had invested over 30 million dollars to expand its municipal water and sewer service west to the Conversation Area from Sheridan Street on the north to Pembroke Road on the south, that this expansion project was anticipated to provide water and sewer service for its existing municipal boundaries as well as the area proposed to be served by South Broward, that it was preparing an annexation report for the proposed area, and that if South Broward's application were approved it would be precluded from servicing its own residents should annexation occur. At hearing, the proof demonstrated that Pembroke Pines had expanded its municipal water and sewer service such that its water and wastewater treatment plants and related facilities have adequate present capacity to meet the current and anticipated future water and wastewater needs in the disputed service area. The Pembroke Pines water lines are currently located on the south side of Sheridan Street, which street forms the southerly boundary of the disputed service area. Its wastewater treatment lines are, however, located approximately one and one-half miles south of Sheridan Street and would require several months and considerable expense to extend them to the disputed service area. Notably, however, no proof was offered that Pembroke Pines had any current intention to annex the disputed service area, or that it had otherwise evidenced any intent to, or taken any action to, provide service to the area. Green Meadows is an association of residents of this area of unincorporated Broward County, some of whom reside within the service area in dispute. The gravamen of Green Meadows' objection is its concern that sewer lines for a centralized sewer system would leak into its member's ground water supply, and that the increase in population density caused by a centralized water and sewer system would adversely affect the area's ecosystem. Neither Green Meadows nor Pembroke Pines contended, however, that the subject extension of service would violate any land use plan, zoning ordinance or other state or local law, and no credible proof was offered that, if built consistent with existent law, the sewer lines would adversely impact the ground water supply or ecosystem. Until recently, all of the lands lying in the disputed service area were located in unincorporated Broward County. However, in September 1988 a parcel of approximately 15 acres which abutted Dykes Road was annexed into the Town of Davie, and in May 1989 a parcel of approximately 80 acres, which abutted the previously annexed parcel on the east, Sterling Road on the north, and S.W. 166th Avenue on the west, was annexed into the Town of Davie. These lands comprise approximately 30 percent of the lands within the disputed service area, and it is the desire of the Town of Davie that water and sewer service to such lands be provided by South Broward. To date, South Broward has entered into a developer's agreement with the owner of the 80-acre parcel to provide such services, and is in the process of executing such an agreement with the owner of the 15-acre parcel. Pembroke Pines does not object to South Broward's expansion into these areas. As to the remaining acreage within the proposed service area, the owners of the vast majority of those lands have expressed a preference for South Broward to provide water and sewer service to their properties, and South Broward has expressed its desire and ability to provide such services. South Broward's water plant has an existing capacity of 500,000 gallons per day (GPD), and has sufficient capacity to address the current need for water service in the proposed area. Upon completion of its current expansion, which is anticipated in October 1989, South Broward's water plant will have a capacity of 1,250,000 GPD, and adequate capacity to address any future demand for water service in the proposed area. South Broward's wastewater treatment plant, with a capacity of 500,000 GPD, currently has sufficient capacity to satisfy the present and future demand for such services in the proposed area. An expansion of that plant is expected to be in service by 1991, which will double the plant's capacity and provide additional capacity. Currently, South Broward has water and sewer lines adequate to serve the proposed area in place, and located under Dykes Road at the eastern edge of the service area. Such lines are adequate to meet all present and anticipated future needs for such service in the area, and the water lines are adequate to provide fire protection to the area. South Broward has the present financial, managerial, operational, and technical ability to provide the present and anticipated needs for water and wastewater service in the proposed area, and the public interest will be best served by the extension of South Broward's water and wastewater systems to that area. Such expansion will not be in competition with or a duplication of any other system in the area.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the objections filed by Pembroke Pines and Green Meadows be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1988. APPENDIX The proposed findings of fact filed by South Broward are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 3. Addressed in paragraph 4. Addressed in paragraph 5. 5-10. Addressed in paragraph 9. 11-14. Addressed in paragraphs 10-13. 15 & 16. Addressed in paragraphs 6 and 7. Addressed in paragraph 13. To the extent pertinent, addressed in paragraph 8. Addressed in paragraph 8. 20 & 21. Addressed in paragraph 13. The proposed findings of fact filed by the PSC are addressed as follows: 1 & 2. Addressed in paragraph 3. Addressed in paragraph 9. Addressed in paragraph 3, and paragraphs 2 and 3 of the conclusions of law. Addressed in paragraph 8. 6-12. Addressed in paragraphs 9-13. Addressed in paragraph 7. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 12. COPIES FURNISHED: Mitchell S. Kraft, Esquire Josias & Goren, P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 32308 Deborah Simone, President Green Meadows Civic Association 5831 S.W. 162nd Avenue Fort Lauderdale, Florida 33331 James L. Ade, Esquire Martin, Ade, Birchfiled & Mickler, P.A. 3000 Independent Square Post Office Box 59 Jacksonville, Florida 32201 Randy Frier, Esquire Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 Mr. Steve Tribble, Director Records and Reporting Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0870 David Swafford, Executive Director Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870 Susan Clark General Counsel Public Service Commission Room 116 101 East Gaines Street Tallahassee, Florida 32399-0870
The Issue The issues are: (1.) Whether Respondents' request for variance from requirements of Rule Chapter 10D-6, Florida Administrative Code, should be granted. (2.) Whether Respondents are guilty of violation of certain provisions of Chapter 381 and Chapter 403, Florida Statutes, and Rule Chapter 10D-6, Rule Chapter 17-550, and Rule Chapter 17-555, Florida Administrative Code, regulating the operation of onsite sewage disposal systems.
Findings Of Fact Respondent V.M.P. Corporation (VMP) operates a lounge known as Stud's Pub in Jacksonville, Florida. Licensed for 75 seats, the lounge actually contains 50-55 seats and employs five people full time. Additionally, 10-15 independent entrepreneurs known as dancers may be present at times. The dancers are not employees of Respondents. Less than 25 people, other than patrons, are present at the facility at any time. Respondent Vincent M. Paul (Paul) owns the facility and the corporation. The lounge is on lots that were platted prior to 1972. Petitioner is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Petitioner pursuant to provisions of Section 381.0065(8)(a), Florida Statutes (1991). The lounge is serviced by a septic tank with a drainfield which is covered by an asphalt parking lot. The portion of the parking lot over the drainfield is bounded to the west by a dirt city street, to the north by other pervious surfaces, to the east by the lounge and to the south by the remainder of the asphalt parking lot. A sign on the premises which advertises the business is protected from automobile traffic by concrete barriers. The septic tank system and drainfield were installed prior to 1972 by a previous owner. Respondent Paul retrofitted the septic tank system after 1972. Respondent Paul was responsible for paving over the drainfield after he purchased the property. Petitioner's representatives inspected the lounge, determined the drainfield to be covered by the asphalt parking lot and requested Respondents to remove the asphalt covering. Respondents requested a variance pursuant to Rule 10D Administrative Code, for the asphalt covered drainfield and other deficiencies of the onsite sewage disposal system. Petitioner's review board recommended denial of the request on the basis that the variance would not constitute a "minor deviation" from rule requirements. Although the term is not defined by Petitioner's rule, Petitioner's usage of this term was the result of the consideration by Petitioner's review board of the application for variance within the context of Section 385.0065(8)(a), Florida Statutes, which authorizes Petitioner to grant variances only where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated. Respondent has no record of failure of the septic tank or drainfield. Water samples from the onsite potable water well filed with Petitioner tested below detectable limits for nitrates and coliforms, the only parameters Petitioner is required to analyze. Respondents' records of water flow or usage from the well into the lounge show daily flow rates of between 320 and 580 gallons, with an average rate of between 450 and 480 gallons. Respondent Paul is responsible for the installation of an unpermitted chlorinator on the water supply system which provided actual flow information. The only onsite water well has no grout sealant. It is the only well of which the parties are aware that lies within 100 feet of the septic system. The potable water well is located approximately 42 feet from the edge of the covered drainfield. The well head does not extend above line surface and there is no concrete pad around the wellhead. The exact depth of the well is unknown, although the well is located upgradient of the drainfield and a nearby junkyard. Denial of the variance would require that Respondents uncover the drainfield since there is no practically available offsite sewage system currently available. Soil in the area of the drainfield is classified as well- draining sand. Due to the impervious surface covering the drainfield, Petitioner's representative was unable, during his inspection, to discern any symptoms of drainfield failure in the form of "blow field should be totally unobstructed to allow aerobic processes to take place in the drainfield which will permit the breakdown of contaminants. A portion of Respondents' 1200 gallon septic tank is located partially under and immediately adjacent to Respondents' facility. A dousing tank which retains liquid waste and operates as part of the septic system is also totally covered by the asphalt pavement. Although there has been no detectable failure of the system, every eight or nine months Respondents have the septic tank and dousing tank pumped out. The tanks never get full.
Recommendation Based on the foregoing, it is hereby Recommended that a final order be entered by Petitioner denying the variance requested by Respondent with exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent property, and, Further Recommended that such final order also assess Respondent Paul an administrative penalty of $500 for each of the four violations contained in the Administrative Complaint which were proven in this proceeding for a total of $2000, and a continuing assessment of $500 per day for each violation for a total of up to $2000 per day after first allowing Respondents a 60 day period within which to correct all four violations. DONE AND ENTERED this 3rd day of May, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1993.
Findings Of Fact B. D. Taylor, Respondent, is the owner of a wastewater treatment facility near Panama City, Florida, which serves a community of some 125-150 mobile homes at Lane Mobile Home Estates. The facility has a 24,000 gallons per day capacity to provide secondary treatment of wastewater with percolating ponds. It was first permitted in 1971 upon construction and has been in continuous operation since that time. In 1980 Respondent employed the services of a consultant to apply for a renewal of its temporary Permit to operate a wastewater treatment facility. This application stated the temporary operating permit (TOP) was needed to give Respondent time to connect to the regional wastewater treatment facility. The schedule contained in the following paragraph was submitted by Respondent at the time needed to accomplish this objective, Following inspection of the facility, a TOP was issued December 5, 1980 (Exhibit 1), and expired January 1, 1983. TOPs are issued to facilities which do not comply with the requirements for Wastewater treatment. Exhibit 1 contained a schedule of compliance to which Respondent was directed to strictly comply to stop the discharge of pollutants from the property on which the facility is located. These conditions are: Date when preliminary engineering to tie into regional will be complete and notification to DER. July 1, 1981; Date when engineering to tie into regional system will be complete and notification to DER - June 1, 1982; Date construction application will be submitted to phase out present facility - March 1, 1982; Date construction will commence - June 1, 1982; Date construction is to be complete and so certified - October 1, 1982; and Date that wastewater effluent disposal system will be certified "in compliance" to permit - January 1, 1903. None of these conditions or schedules has been met by Respondent. The regional wastewater treatment facility was completed in 1982 and Respondent could have connected to this system in the summer of 1982. This wastewater treatment facility is a potential source of pollution. The holding ponds are bordered by a ditch which is connected to Game Farm Greek, which is classified as Class III waters. The size of Game Farm Creek is such that any discharge of pollution to this body of water would reduce its classification below Class III. On several occasions in the past there have been breaks in the berm surrounding the holding ponds which allow the wastewater in the holding ponds to flow into the ditch and into Game Farm Creek. Even without a break in the berm, wastewater from these holding ponds will enter Game Farm Creek either by percolation or overflow of the holding ponds caused by the inability of the soil to absorb the effluent. On January 28, 1983, this facility was inspected and the results of the inspection were discussed with the operators of the facility. The plant was again inspected on February 8 and February 18, 1983. These inspections disclosed solids were not settling out of the wastewater in the settling tanks; inadequate chlorination of the wastewater was being obtained in the chlorination tanks; samples taken from various points in the system, the ditch along side the holding tanks and in Game Farm Creek, disclosed excess fecal coliform counts; and that very poor treatment was being afforded the wastewater received at the plant as evidence by high levels of total Kejhdal nitrogen and ammonia, high levels of phosphates, high biochemical oxygen demand, and low levels of nitrates and nitrites. In July, 1983, in response to a complaint about odors emanating from the plant, the facility was again inspected. This inspector found the aeration tanks anaerobic, effluent had a strong septic odor, the clarifier was cloudy, the chlorine feeder was empty, no chlorine residual in contact tank, final effluent was cloudy, both ponds were covered with duckweed and small pond was discharging in the roadside ditch (Exhibit 14) Expenses to Petitioner resulting from the inspections intended to bring Respondent in compliance with the requirements for wastewater treatment facilities are $280.32 (Exhibit 9)
The Issue Whether the Petitioner is entitled to the issuance of a water vending machine permit for a machine located at Herman's Meat Market, Nokomis, Florida, under the provisions of Section 381.295, Florida Statutes.
Findings Of Fact A water vending machine located at Herman's Meat Market, 227 West Albee Road, Nokomis, Florida, operating from a non-community water supply came to the attention of the Department's water vending machine permitting personnel in Tallahassee on March 9, 1987. At that time, Frank Dowdney, on behalf of Bottled Water Vending of Florida, had made application for issuance of a water vending machine permit at that location. Upon request of the Department in June, 1987, Mr. Dowdney had the well water tested to determine whether the water met community public water supply system standards as required in Chapter 10D-22.004(5) Florida Administrative Code. The water failed to meet the minimum standards as determined by the lab report dated July 22, 1987 of Thornton Laboratories Inc. There were four areas of deficiency, specifically, turbidity, radionuclides, iron, and total dissolved solids (T.D.S.). Mr. Dowdney did not provide any additional test results to the Department and did not receive a permit from the Department for this location. Subsequent to Mr. Dowdney's death in the fall of 1987, the water vending machine location at Herman's Meats was operated by Glacier Water Vending. In the summer of 1988, an agent of Glacier Water had notified departmental permitting personnel that the machine at this location was not in operation. Glacier Water Vending never requested a permit for this location. On September 7, 1988, Mr. McKinney, President of the Petitioner Clean Water Systems, Inc., became the operator of a new water vending machine at the Herman's Meats Location. Mr. McKinney submitted an application for a permit on September 6, 1988, which was denied on November 3, 1988. The reason for denial was that the water source at Herman's Meats had not been shown to be in compliance with community public water system standards. Neither Mr. McKinney nor Clean Water Systems, Inc., though aware of the predecessor operators at this location, had any ownership interest and had not been an employee of either Bottled Water Vending of Florida or Glacier Water Vending. A reverse osmosis system which had been installed on the source line from the well to the water vending machine subsequent to the 1987 testing was removed by Robert Miller of Glacier Water Vending. Mr. McKinney installed a new reverse osmosis system on the source line on September 7, 1988. The source water for a vending machine is the water just prior to entering the machine, which includes the well and any treatment processes between the well and the machine. The source water for Petitioner's vending machine has been processed through chlorination and one reverse osmosis system. This source water must meet minimum standards established for community public water supply systems. There are many different types of reverse osmosis systems. In general, a reverse osmosis system is a purification process intended to improve water quality. The degree of improvement in product water is affected by many factors including, but not limited to, feed water mineral concentration, feed pressure, feed water temperatures and Ph. It cannot be assumed that minimum water quality standards are being met just because a reverse osmosis system has been installed. The Department has no obligation to provide and/or pay for the chemical testing that is a prerequisite to the issuance of this water vending machine permit. Department personnel do perform required bacteriological and nitrate testing on the non-community well at Herman's Meats. There has been a pattern of noncompliance for bacteriological and chlorine residual levels at this location. The Department does not perform water vending machine testing at Herman's Meats and would only do so if there was a complaint. At the time of the hearing, there had been no complaints about the vended water there. The Petitioner has provided no test results from a state certified lab to the Department. The Petitioner has provided to the Department only test results from his own testing efforts which relate only to the total dissolved solids (T.D.S.) category. The test results generated by Mr. McKinney are not adequate for departmental permitting purposes. The only state certified chemical test results available to the Department on this location show that the source water did not meet minimum standards for community public water supply systems in 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for a water vending machine permit be DENIED. DONE AND ENTERED this 3rd day of October, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 3rd day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0668 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Respondent's Findings of Fact Accepted-paragraphs 1-11. Rejected-paragraph 11 is covered in the Preliminary Statement Petitioner's Findings of Fact Accepted-paragraph 7 (in substance) Rejected-paragraph 1 - irrelevant paragraph 2 - against the weight of the evidence or subordinate paragraph 3 - insufficient proof (first subparagraph); uncorroborated hearsay (second subparagraph); subordinate (third, fourth and fifth subparagraphs) paragraph 4 - argumentative and uncorroborated 5,8 (sic) hearsay and 10 paragraph 6 - insufficient proof COPIES FURNISHED: Eugenie G. Rehak, Esquire Health Program Attorney Department of Health and Rehabilitative Services 12381 South Cleveland Avenue Suite 501 Fort Myers, Florida 33907 Lew McKinney, President Clean Water Systems, Inc. 250 Warfield Avenue Venice, Florida 34292 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The parties stipulated, and it is so found, that Petitioner, DER, has jurisdiction over both the issues and the Respondents Dey and KWC. KWC owns and operates a water system which supplies water to both residential and commercial customers in the City of Keystone Heights, Florida. Virginia Key is the President of KWC, a member of the Board of Directors of the corporation, and one of the five stockholders. The other stockholders are her sisters. The five sisters are the daughters of the late G. E Wiggins, and inherited the company from him at his death in 1969. Mr. Wiggins developed the water company in the 1920's and operated it until his death. KWC came under the jurisdiction of the Florida Public Service Commission (PSC) just prior to Mr. Wiggins' death. At that time, pursuant to a PSC requirement, it was assessed and valued at a sum in excess of $250,000.00 by a consultant firm hired for the purpose. As of late November, 1984, KWC served approximately 752 residential customers which, when multiplied by an average 2.5 persons per family factor, results in a total of approximately 1,880 residential inhabitants served by the water system. In addition, the system serves 105 commercial customers. It is impossible to estimate with any reasonable degree of accuracy the number of individuals involved in the commercial service. The system consists of three wells drilled in 1940, 1946, and 1960 to a depth of 350, 450, and 492 feet respectively. Total yield from the three wells is normally 1,350 gallons per minute. The wells are generally well protected against surface water infusion, are normally not subject to inundation, and have had no salt water infiltration problems in the past. At the present time, well number 2, drilled in 1946, with a 350 gpm yield is out of service. The water, when pumped from the ground, is stored in two tanks-one with a 60,000 gallon capacity and the other with a capacity of 800 gallons. Both tanks are steel. Chlorine is added to the water in each storage situation by a hyper-chlori- nation system before the water is sent to the storage tank. The distribution system is made up of 6" and 2" diameter pipe. In March, 1984, two different inspections of the water system, done by, in one case, an environmental specialist and in the other, an Engineer I with DER, revealed several deficiencies in the maintenance and operation of the system all of which constitute violations of DER rules. Specifically, these include (1) failure to provide an auxiliary power source in the event the main pumping capability of the system is lost, (Rule 17-22.106 (3)(a); (2) failure to utilize for the system an operator certi- fied by the state with a Class C license, (Rule 17-22.107(3)(b); (3) failure to maintain a free chlorine residual in the water of at least 0.2 ppm in the system, (Rule 17-22.106(3)(c); (4) failure to maintain a minimum pressure of 20 ppi in the distribution system, (Rule 17-22.106(3)(f); (5) failure to have a gas chlorination facility, (Rule 17-22.106(3)(d); and (6) failure to obtain proper permits to expand the distribution system, (Rule 17-22.108 (1)(b) Rule 17-22, F.A.C., sets up requirements for safe drinking water and was designed to establish guidelines and standards for facilities and water and to bring water into compliance with the Federal Act. Twenty ppi of pressure in the system was adopted as a standard minimum for residual pressure to protect against outside contaminants getting into the water system. Such contaminants could come from ground water, leaks, and water in storage tanks attached to the system such as toilet tanks, being aspirated into the system. Also a certain amount of pressure is required to operate appliances. Normally minimum pressure is found in areas at the edge of the system and in those areas where inadequate chlorination is located. They interact and both pressure and chlorinization are required. Chlorine can be injected into the system generally in two ways: the first is through gas chlori- nation and the second, through hyper-chlorinization as is used in the instant system. The effectiveness of hyper-chlorinization is limited, however, by the size of the system. Basically, hyper- chlorinization is effective when the demand in the system for pressure is no more than 10 ppi. Above this, gas chlorinization is necessary. As late as January 4, 1985, Mr. Dykes went to Keystone Heights to test the system. His tests showed that 11.9 ppi is the average daily flow per 24 hours for the last 12 months. Since this figure is above 10 ppi, in his opinion, a gas chlorinization system would be needed. Chlorine is used to purify water because it has been shown, through long use, to prevent disease. The requirement for a residual chlorine level in water, therefore, is consistent with that concept to insure chlorine is always in the water in sufficient quantity to prevent disease. Respondent's plant has less than the 0.2 residual that is required under the rule. This insufficiency is caused by the inadequate chlorinization system which has insufficient capacity to provide the appropriate amount of chlorine. At the current level, it is providing only approximately 60 percent of the needed chlorine. To correct this deficiency Mr. Dykes recommends installation of a gas chlorinization system. In addition, the pneumatic tank storing the water from the number 3 well does not give sufficient detention time to allow for appropriate reaction of the chlorine contained in the water before the water is released into the distribution system. Another factor relating to the lack of adequate pressure in the system is the fact that, in Mr. Dykes' opinion, too much of the system is made up of 2" diameter water line. A line of this small diameter prevents the maintenance of adequate pressure especially in light of the fact that there are numerous old lines in the system some with corrosion and scale in them which tends to reduce pressure. This latter factor would be prevalent even in the 6" lines. The current plant manager, Mr. Cross, who has been with Respondent for approximately 4 years is, with the exception of one part time employee, the only operations individual associated with the plant. As such, he repairs the meters and the lines, checks the pumps, the chlorinator, and checks and refills the chlorine reservoir on a seven day a week basis. Be learned the operation of the plant from his precedessor, Mr. Johnson, an unlicensed operator who was with the company for 10 years. Mr. Cross has a "D" license which he secured last year after being notified by DER that a license was required. It was necessary for him to get the "D" license before getting the required "C" license. At the present time, he is enrolled to take courses leading toward the "C" license. At the present time, however, he is not, nor is anyone else associated with KWC, holding a license as required. The rule regarding auxiliary power provides that all community systems serving 350 or more persons shall have standby pumping capability or auxiliary power to allow operation of the water treatment unit and pumping capability of approximately one-half the maximum daily system demand. Respondent has admitted that the system is not equipped with an auxiliary power source and it has already been established that more than 350 persons are served by the system. Respondent also admits that subsequent to November 9, 1977, it constructed main water lines for the system which required the obtaining of a permit from either the Petitioner or the county health unit. Respondent admits that it did not obtain or possess a permit to do the additional construction referenced above from either DER or the Clay County Health Department prior to the construction of the water lines referenced. The inspections referenced above, which identified the problems discussed herein, were accomplished by employees of Petitioner, DER, at a stipulated cost of $898.10. Respondent contends, and there is no evidence to the contrary, that there have been no complaints of contaminated water and that the monthly water samples which Mr. Cross forwards to the Clay County Health Department have been satisfactory. Mr. Cross also indicates that a September, 1983 DER analysis of water samples taken from the system was satisfactory. However, bacteriological analysis reports on water collected from Respondent's system on July 11 and 27, 1983, reflect unsatisfactory levels of either coliform or non-coliform bacteria in the water requiring resubmission of test samples. Respondent also contends that no one has ever gotten sick or died from the water furnished by the system and there is, in fact, no evidence to show this is not true. Even though so far as is known, no one has ever been made sick from the water in the system, in Mr. Dykes' opinion, the risk is there. As a result of the defects identified in this system, insufficient chlorine is going into the system to meet reasonable health standards. Though this does not mean that the water is now bad, it does mean that at any time, given a leak or the infusion of some contaminant, the water could become bad quickly, and the standard established by rule is preventive, designed to insure that even in the case of contamination, the water will remain safe and potable. Respondent does not deny that it is and has been in violation of the rules as set out by the Petitioner. It claims, however, that it does not have sufficient funds available to comply with the rules as promulgated by DER. Respondent has recently filed a request for variance under Section 403.854, Florida Statutes, setting forth as the basis for its request that it does not have the present financial ability to comply with any of the suggested or recommended corrective actions to bring its operation into compliance with the rules. Mr. Protheroe, the consulting engineer who testified for Respondent has not evaluated the system personally. His familiarity with it is a result of his perusal of the records of the company and the Petitioner. Based on his limited familiarity with the system, he cannot say with any certainty if it can be brought into compliance with, for example, the 20 ppi requirement. There are too many unknowns. If, however, the central system was found to be in, reasonably good shape, in his opinion, it would take in excess of $100,000.00 to bring it within pressure standards. To do so would require replacement of the 2" lines, looping the lines, and cleaning and replacing some central system lines as well. In his opinion, it would take three months to do a complete and competent analysis of the system's repair needs. Once that was done, he feels it would take an additional three months to bring the plant into compliance with DER requirements. Other repairs, such as those to the lines outside the plant, would take longer because some are located in the downtown area and have interfaced with other utilities. This could take from three to four months if the money were available to start immediately. Here, however, it has been shown that it is not. Consequently, to do the study and then, if possible, procure the funds required, could take well in excess of six months or so. Mr. Protheroe contends, and there is little if any evidence to indicate to the contrary, that to replace the current system with a new one entirely as it is currently constituted would cost at least $250,000.00. However, in his opinion, no one would ever put in a new system similar to the one currently there. He cannot say how much it would cost to buy the system and make the necessary corrections to it to rectify the deficiencies. His familiarity with the system is not sufficiently complete to do this. He cannot say exactly how much the system is worth in its current state, but he is satisfied that it is worth more than $65,000.00. In that regard, Mrs. Dey indicated that in her opinion, the fair market value of the system is currently at $250,000.00. At the present time, there are current outstanding loans in excess of $9,000.00 at 16 percent interest. This current loan basis has been reduced from a higher figure. In 1977, the company borrowed $15,000.00 at 9 percent. In 1981, it borrowed $5,000.00 more at 18 percent. In 1982, the loans were consolidated at an increased rate of 16 percent and the officers have been advised by their current creditors that they cannot borrow any more money for the system in its current state. They would sell the system if a reasonable price could be realized. However, any inquiries on prospective purchases have been chilled by a low rate base assigned by the PSC. In that regard, the City of Keystone Heights offered to purchase the system for $59,000.00. This offer was declined as being unreasonable. Nonetheless, in light of the low rate base assigned by the PSC in its order issued on December 21, 1981 of slightly over $53,000.00 the offer by the city of $59,000.00 is not completely out of line. A certified public accountant, in KWC's December 31, 1983 financial report assigned a valuation of approximately $62,000.00, again a figure only slightly higher than that offered by the city, but substantially less than the $175,000.00 price asked of the city by Respondent Dey and her sisters. Mrs. Dey indicated that to the best of her knowledge the PSC denied rate increases for the purposes of improvements. In the presentation before the commission, respondents relied exclusively on the services of their attorney and accountant. Evidence from Mr. Lowe, of the PSC, however, indicates that KWC has never requested a rate increase to finance any of the improvements called for here. In the PSC order referred to above, Respondent was awarded a 12.25 percent rate of return on its rate base. This figure was an amalgam of a more than 13 percent rate on equity and a lesser figure for cost of doing business, including debt. At the time of that hearing, however, the debt cost was based on a 9 percent interest figure. The 16 percent interest figure came afterwards and no hearing has been requested based on the higher interest rate and it is so found.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is, therefore: RECOMMENDED that Respondents Virginia W. Day and the Keystone Water Company be ordered to comply with the Orders for Corrective Action previously filed herein to bring the water system in question in compliance with the Florida Safe Water Drinking Act without delay or suffer the penalties for non- compliance called for by statute and, in addition, pay costs of investigation in the amount of $898.16. RECOMMENDED in Tallahassee, Florida this 19th day of February, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1987. COPIES FURNISHED: Debra A. Swim, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John E Norris, Esquire 10 North Columbia Street Lake City, Florida 32055 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues are whether Respondent's facility is a public water system subject to regulation by the Department of Environmental Regulation (DER) pursuant to Chapter 17-22, Florida Administrative Code, or whether it is exempt from those regulations by virtue of Rule 17-22.102 if the facility is subject to regulation by DER, whether Respondent should take the corrective actions set forth in the Notice of Violation and Orders for Corrective Action and should pay DER's expenses incurred in the pursuit of this case. DER presented the testimony of Cliff McKeown, a potable water engineer, and Linda Frohock, planning manager for the Department of Community Affairs (DCA). DER had Exhibits 1-4 admitted into evidence. Respondent, Lex Thompson, presented his own testimony and that of Hugh Kelly. The parties have submitted Proposed Findings of Fact and Conclusions of Law. They have been considered and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
Findings Of Fact DER is the Florida administrative agency which has the authority to administer and enforce the provisions of the Florida Safe Water Drinking Act, and the rules and regulations promulgated thereunder. (See Prehearing Stipulation). Respondent is a natural person and citizen of the State of Florida. Respondent owns and is responsible for the construction of a potable water distribution main extension ("the facility") which serves a subdivision known as High Bluff Acres-near the community of Midway in Gadsden County, Florida. (See Prehearing Stipulation). On February 1, 1980, Respondent was issued construction permit number DS20-27385 for the facility. The construction permit described the facility as a potable water distribution main extension to the Talquin Electric Company's Midway water- system. The project was to be constructed with approximately 940 linear feet of four inch PVC valves and appurtenances. Specific condition number 15 of the permit restricted operation of the extension until department approval was issued. This approval would be granted upon receipt of certification by the engineer of record as to construction in accordance with the approved plans and specifications and receipt of two satisfactory bacteriological analyses. DER has not received this information and had not issued an approval for use of the facility. The construction permit expired on September 1, 1981. (See Prehearing Stipulation). Respondent modified the facility by constructing it with 550 feet of one inch to one and one-half inch PVC water mains. (See Prehearing Stipulation). DER conducted an inspection of the facility on February 23, 1982. The facility was found to be in use without final DER approval. By letter dated February 26, 1982, DER notified Respondent of his non-compliance with Chapter 17-22, Florida Administrative Code, and requested Respondent to submit specified compliance items. (See Prehearing Stipulation). In October of 1982, DER personnel contacted Respondent . by telephone. Respondent agreed to obtain a permit renewal and modify the unauthorized water line as soon as funds in the form of rent were released by the Department of Community Affairs (DCA). On November 1, 1982, DCA notified DER that payments were being made. (See Prehearing Stipulation). On June 8, 1983, DER notified Respondent of his non- compliance with Chapter 17-22, Florida Administrative Code, and requested a reply on actions to be taken to correct the deficiency. By letters dated October 18, 1984, and December 17, 1984, DER notified Respondent that the facility was not approved for use. Respondent was further requested to inform DER as to the status of the facility. DER received no response to these requests. (See Prehearing Stipulation). The facility was not constructed in accordance with DER-approved plans, and DER has issued no written approval or consent for alterations to the system. (See Prehearing Stipulation). Respondent placed the facility in service without submitting a certification of completion and a copy of satisfactory bacteriological results to DER for approval and clearance. (See Prehearing Stipulation). The facility is not designed to provide maximum hourly system demand without development of distribution pressure lower than 20 psi. (See Prehearing Stipulation). DER has incurred costs and expenses in the pursuit of this case in the amount of $453.50. (See Prehearing Stipulation). Respondent's facility consists of distribution and storage facilities only and does not have any collection or treatment facilities. It obtains all its water from and is not owned or operated by the Talquin Electric System. Further, Respondent is not a carrier which conveys passengers in interstate commerce. (See Prehearing Stipulation) The public water distribution system constructed by Respondent is connected to twenty dwelling units in twelve structures. The High Bluff Acres subdivision is a government- subsidized, but privately-owned, low-income housing development, wherein DCA, acting on behalf of the U.S. Department of Housing and Urban Development (HUD), subsidizes the payment of rent for the housing. Respondent entered into several agreements on behalf of Salter, Stephens and Thompson, with the DCA to rehabilitate existing structures at High Bluff Acres and thus qualify for the Section 8 Moderate Rehabilitation Housing Assistance Program (HAP) established by HUD. The purpose for entering into the HAP contracts is to provide low cost housing to low income persons. These agreements were entered into over a period of several months during 1981 and 1982. Upon satisfactory completion of the rehabilitation pursuant to the agreements, Respondent entered into a HAP contract for each structure in High Bluff Acres, for a total of twelve structures (20 dwelling units). The HAP contract establishes the contract rent that can be allowed for each individual dwelling unit in a structure (the contract covers one structure). The contract rent is calculated according to a formula established by HUD for such purposes, and includes monetary allowances for utilities or other services which are provided by the owner. It does allow the lessor to recover his capital expenses in rehabilitating an individual housing unit. DER Exhibits 3 and 4 are two of the twelve HAP contracts entered into by the Department of Community Affairs and Respondent, Lex Thompson. Each of these contracts has an Exhibit B which is entitled "statement of services, maintenance and , utilities to be provided by owner." These exhibits show that Respondent has agreed to provide water to the units under the HAP contract. Contract rents paid to Respondent as authorized agent for the partnership include an allocation of money to reimburse Respondent for providing water to the tenants in the dwelling units. However, subsequent to Thompson's and DCA's entering into the contracts for payment of these rental subsidies, Respondent notified DCA that he had incurred additional capital expenses. Since his rental payments were already at the maximum allowable rate, however, Respondent did not seek to modify the aforementioned contracts because the amendment would not result in any greater payment of monies to him. At no time has Respondent amended the terms of the HAP contracts with respect to provision of water to the tenants at High Bluff Acres. He is still receiving the reimbursement for provision of water to tenants. The general partnership which had been receiving contract rents for the dwelling units was dissolved in May, 1985, and the contracts for each structure were assigned to various individuals. Respondent, individually, owns one structure and his wife owns another. DER has received no potable water quality or quantity complaints regarding the High Bluff Acres subdivision. Moreover, the potable water system existing in the High Bluff Acres subdivision does not constitute a present threat to the public health, safety, and welfare.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein order the following corrective actions: That within 45 days, Respondent shall hire an engineer registered in Florida to design a new distribution system for High Bluff Acres or modifications to the existing system, and submit a completed application to the Department for a permit to construct or modify the system. That within 60 days of issuance of the permit, Respondent shall have the distribution system installed, tested(including pressure testing, bacterial testing, disinfectant-testing) and shall have the engineer sign and seal the plans indicating to the Department that the system conforms with the approved plans, and both DER and American Water Works Association standards. It is further RECOMMENDED that Respondent be ordered to pay the Department's costs and expenses in the amount of $453.50, and that same be paid to the Department by cashier's check within 30days. DONE and ORDERED this 4th day of November, 1985, in Tallahassee, Florida. DIANE K. KIESL1NG Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1985 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 13). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 15). Proposed Finding of Fact 4 is adopted in substance (See Finding of Fact 17). Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 18). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 19). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 22). Proposed Finding of Fact 8 is adopted in substance (See Finding of Fact 21). Rulings on Respondents Proposed Findings of Fact: Proposed Finding of Fact 1 is adopted in substance (See Finding of Fact 1). Proposed Finding of Fact 2 is adopted in substance (See Finding of Fact 2). Proposed Finding of Fact 3 is adopted in substance (See Finding of Fact 3). Proposed Finding of Fact 4, first sentence, is adopted in substance (See Finding of Fact 4). The second sentence is rejected as being unsupported by the evidence and irrelevant. Proposed Finding of Fact 5 is adopted in substance (See Finding of Fact 5). Proposed Finding of Fact 6 is adopted in substance (See Finding of Fact 6). Proposed Finding of Fact 7 is adopted in substance (See Finding of Fact 7). Proposed Finding of Fact 8, first sentence, is adopted in substance (See Finding of Fact 8). The remainder of Proposed Finding of Fact 8 is rejected as irrelevant. Proposed Finding of Fact 9 is adopted in substance (See Finding of Fact 12). Proposed Finding of Fact 10 is adopted in substance (See Finding of Fact 14). Proposed Finding of Fact 11 is adopted in substance (See Finding of Facts 19 and 20). Proposed Finding of Fact 12 is rejected as unsupported by the evidence, irrelevant and conclusory. Proposed Finding of Fact 13 is adopted in substance (See Finding of Fact 23), except that it is rejected as it relates to a potential threat because that portion is unsupported by the competent, credible evidence. COPIES FURNISHED: Clare E. Gray, Esquire Daniel H. Thompson, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 William L. Hyde, Esquire 300 East Park Avenue Post Office Drawer 11300 Tallahassee, Florida 32302 Victoria Tschinkel Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue This is a procurement protest. The ultimate issue is whether the Respondent’s award of the "Agreement for the Construction and Operation of a Seawater Desalination Plant and Water Purchase Agreement" ("WPA") to Intervenor, S & W Water, LLC ("S&W") on July 19, 1999, is contrary to Tampa Bay Water's (TBW’s) governing statutes, its rules or policies, or the proposal specifications, or is clearly erroneous, contrary to competition, arbitrary, or capricious. Additional issues presented for decision are: (1) whether Petitioner has standing to maintain this protest; and (2) whether, by participating in the procurement process, Petitioner has waived or is estopped from claiming irregularities arising out of that process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that TBW enter a Final Order denying Petitioner's Formal Protest. Jurisdiction is reserved for consideration of S&W's request for a determination of improper purpose under Section 120.595(1), Florida Statutes, if such request is made by motion within 10 days from the issuance of this Recommended Order. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1999. COPIES FURNISHED: Charles W. Pittman, Esquire 400 North Tampa Street Suite 1040 Tampa, Florida 33602 Richard A. Harrison, Esquire John W. Wilcox, Esquire Allen, Dell, Frank & Trinkle, P.A. Post Office Box 2111 Barnett Plaza, Suite 1240 101 E. Kennedy Boulevard Tampa, Florida 33601-2111 Donald D. Conn, General Counsel Tampa Bay Water 2535 Landmark Drive Suite 211 Clearwater, Florida 33761-3950 John H. Rains, III, Esquire Annis, Mitchell, Cockey, Edwards & Roehn, P.A. Post Office Box 3433 One Tampa City Center, Suite 2100 Tampa, Florida 33601
The Issue The ultimate issue to be resolved in this proceeding is whether the Department should issue a permit allowing the construction of a wastewater treatment and disposal system as requested in the modified application filed by Thomas E. Wasdin. The applicant and the Department contend that reasonable assurances have been given that the proposed facility will not result in violations of any of the Department's rules or regulations. The Petitioner contends that the proposed facility is located too near to existing shallow water drinking wells and that the facility otherwise fails to comport with the Department's rules and regulations.
Findings Of Fact Petitioner is the president of Beach Woods of Brevard County, Inc. The corporation is the developer of "Beach Woods," a 376-unit planned unit development located in Melbourne Beach, Brevard County, Florida. One hundred eighty of the units have already been developed. Existing regional sewage treatment facilities operated by Brevard County are not adequate to accommodate the total number of units that the applicant proposes to develop. It appears that 24 more hookups are all that the existing facilities will tolerate. Beyond that number, a sewer moratorium is in effect, and unless the applicant can make some other arrangement for disposing of sewage, the development cannot be completed. The county has approved the planned unit development. In order to meet sewage treatment needs of the proposed development, the applicant is proposing to construct a "package sewage treatment plant" to accommodate waste that exceeds quantities that can be handled by existing regional facilities. Once the regional facilities are upgraded so that the development's sewage treatment needs can be accommodated, the applicant proposes to disassemble the package plant and utilize the regional facilities. The proposed plant would be a 50,000 gallons per day contact stabilization sewage treatment plant. Initially, it would be operated as a 5,000 to 15,000 gallons per day aeration plant. Once loads reach 18,000 gallons per day, it would become a contact stabilization plant. The Present collection and transmission system for sewage that exists at Beach Woods includes an 8-Inch collection station from which sewage flows to an existing lift station that pumps effluent via 6-inch pipes to the regional plant. When the proposed plant is completed, a computerized system would be set up to send effluent to the new plants when the limits that the regional plant can accommodate are met. Once the regional plant is upgraded to sufficient capacity, the bypass to the proposed plant would be eliminated, and all units would then be connected to the original collection system. The proposed treatment plant is based upon proven technology that has been in existence for more than 50 years. The plant should operate reliably, and proper consideration has been given to odor, noise, lighting, and aerosol drift. In close proximity to the plant, it is likely that there would occasionally be a "earthy smell" that would be noticeable, but not objectionable. Outside of the immediate proximity, no odor would be noticeable. Large fans would be operated in connection with the plant, and some noise would result. It does not, however, appear that the noise would be excessive or bothersome, even in the immediate vicinity of the plant. The plant would be lighted by street lights and would not result in any more excessive lights than normal street lights. The plant is not of the sort that aerosol drift is a likely problem. Adequate considerations have been given to providing emergency power to the plant in the event of a power outage. The plant could sit for at least 20 hours without power before any emergency would exist. If there was a power outage in excess of that period, emergency power sources are available. Consideration has been given to the 100-year flood plain. The plant has been placed at an elevation that keeps it outside of the 100-year flood plain. The land application system proposed by the applicant would utilize drain fields that would be alternately rested. Groundwater flows from the area of the proposed drain fields are in a southwesterly direction toward the Indian River. The Indian River in the location of the proposed facility is a "Class III surface water." Groundwater in the area of the proposed facility might be classified as either "G-I" or "G-II." Reasonable assurance has been given that the proposed sewage treatment plant would not operate in such a manner as to degrade surface or ground waters to the extent that any of the Department's specific water quality parameters set out in Chapter 17, Florida Administrative Code, would be violated. The proposed sewage treatment plant comports with local requirements and has been approved by Brevard County. The Allans Subdivision is a residential development that is located directly to the north of the Beach Woods development. Petitioner utilizes a shallow water well as a source of drinking water. The proposed land application site of the sewage treatment plant is located within 500 feet of the Petitioner's well. There are at least two other shallow water wells that serve as drinking water sources located within 500 feet of the proposed land application site. The applicant indicated a willingness to move the proposed facility so that no part of it would be located within 500 feet of the shallow drinking water wells. The evidence establishes that the plant could be moved to accomplish that. No specific plan, however was presented. Potential factual issues could exist respecting appropriate buffer zones for any relocation of the facility, even a minor relocation. The applicant is proposing to develop areas within 100 feet of the proposed facility. The applicant does not, however, propose to locate any public eating, drinking, or bathing facilities within 100 feet of the proposed plant or land application area. No map was presented during the course of proceedings before the Department of Environmental Regulation that preceded the formal administrative hearing or during the hearing itself to establish present and anticipated land uses within one mile of the boundaries of the proposed facility. The facility of such a size that it could not inhibit any conceivable present or proposed future land uses except within 500 feet of the proposed facility. Evidence was offered at the hearing from which it could be concluded that the Department has, in the past, issued permits for sewage treatment plants located within 500 feet of existing shallow drinking water wells. The testimony was that this has occurred despite a requirement in the Department's rules that there be a 500-foot buffer zone between any such plant and a shallow drinking water supply. No specific evidence was presented as to why the Department has allowed such a breach of its rules or why it should be allowed in this proceeding.
Findings Of Fact By various purchases during the period 1967-1969, Petitioner acquired over 14,000 acres of land in the eastern sector of central Florida. About 12,000 acres of the land lie in Volusia County and the remainder in the northern part of Brevard County. Petitioner registered various public offering statements for resale of this land with the Florida Land Sales Board. In 1967, pursuant to an act of the State Legislature, the Circuit Court of the Seventh Judicial Circuit of Florida entered judgment creating and incorporating the South County Drainage District which included Petitioner's land in Volusia County. Later attempts by judicial action to extend the Drainage District boundary lines to include Petitioner's land in Brevard County were unsuccessful. A 1967 agreement between Petitioner and the Drainage District provided that a drainage plan would be implemented by the District with funds for construction being advanced by Petitioner. This plan consisted of dead-end graded roads and a system of ditches and canals that were to be constructed and maintained by the Drainage District, with purchasers of the property to be assessed for the cost of the facilities. In 1972, Volusia County adopted a home rule charter which abolished the South County Drainage District and transferred its powers and functions to the county. In 1973, an agreement was entered into between Petitioner and Volusia County providing for the transfer to the county of the functions, responsibilities, and obligations of the Drainage District, and assigning to Petitioner the right to petition the State for approval of the drainage plan. Under the agreement, a Special Improvement District was created by the County (testimony of Trella, Maise1, Exhibits 1, 2, 25, 26, 27). The land acquired by Petitioner had been designated as Cape Atlantic Estates and was divided into tracts or lots in a grid system which was a series of rectangular squares with intersecting roads. Initially, the tracts were two and 1/2 acres each and eventually they were halved and sold in one and 1/4 acre plots. A typical offering statement provided that the "predeveloped tracts" were subject to road and drainage rights-of- way, and that purchasers, after paying their contracts in full, would receive free and clear title to the property. It was further stated that physical access would be obtained over rough graded dirt roads to be completed by December 31, 1973, and that when drainage facilities were completed the land would be dry. It was specifically pointed out that it was not a "homesite" offering nor was it part of a recorded plat, but offered as part of a section, township and range. However, the statement also noted that facilities such as elementary schools, churches, and fire, and police protection were available in neighboring communities. It also indicated that there was no water supply, sewage, public utilities, or public transportation to the property. Sales commenced in 1967 and, by the middle of 1971, approximately 98 percent of the tracts had been sold, primarily to out-of-state purchasers. The bulk of the sales were made by telephone contacts initiated by Petitioner's salesmen. Some 5,000 purchasers bought tracts in the development on contracts which were of eleven to twelve years in duration. The property in question is described as coastal low lands that consist of essentially level terraces. The surface drainage of the land is poorly-developed and inefficient. The terraces begin at the Atlantic Ocean on the east and progress westward to a maximum altitude of about 29 feet in the project area. The Atlantic coastal ridge functions as a divide between the St. Johns river and the coastal drainage basin called Turnbull Hammock. West of the ridge, surface drainage generally is toward the St. Johns river, and east of the ridge drainage is into Turnbull, Hammock which leads to Turnbull Creek and thence to the Indian River. The region has large swamp and marshland areas and sandy surface soils which are intermittently underlain by hardpan at shallow depths which impedes rainfall infiltration. Much of the area is covered with ponds during the wet season creating swampy conditions. The climate supports heavy growth of native pine and scrub oak trees in the sandy soils. Cypress trees prevail in the wet bottomlands. Turnbull Hammock occupies the eastern quarter of the tract and is flat and heavily-wooded. It serves as a catchment for surface runoff from the lands immediately to the west and also for lands outside and north of the project. The Turnbull Hammock natural drainage basin involves about 48 square miles. Highway 1- 95 - traverses the center of the area in a north-south direction. The land is in a primitive state and is mostly unused with the exception of minor cattle grazing areas. Subsurface water leaving the Cape Atlantic Estates to the east surfaces in the Turnbull Hammock and drains to the south into the Indian River. On the west side, the tendency of the water is to move west and surface in cypress sloughs, eventually reaching Buck Lake, an area to the southwest. During flood conditions, when surface waters are high, the western subsurface water could make its way in time to the St. Johns River. The original drainage plan was aimed at decreasing the retention of surface water and using controlled measures to improve runoff in order to prevent flooding and soil erosion. Some nine percent of the property has standing water or ponding and, although in many of the sand ridges, this is not a serious problem because the rainfall quickly dissipates into the soil, in those areas were the soil is heavily interspersed with hardpan, there is slow percolation. Some 26 percent of the land area floods during rain showers. The plan was to remove the standing surface water by a network of canals, ditches and swales and, to achieve these goals, regulating devices were to be installed at two major discharge points of the system. The plan incorporated a main canal located just west of 1-95 which would drain the western Volusia County portion of the project area through an existing 9' X 12' double box culvert under 1-95 into a north outfall canal and ultimately into Turnbull Hammock. The remaining portion of the western section, some 2300 acres in Brevard County, was planned to be drained to the south whereby water would exit the property through a 142 acre storage reservoir that was considered to have sufficient capacity to retain the water during a 50 year flood condition and yet not exceed the existing natural discharge rate. Since Turnbull Hammock is considerably lower than the western side of the property, a self regulating control gate was considered necessary to maintain the water level of the canal in Volusia County at a level of 21 feet mean sea level. In the Brevard County portion, the main canal water level was designed to be kept at an elevation of 20 feet mean sea level by a fixed control structure at the reservoir discharge. It was planned that water would be collected from the area by lateral swales and ditches which would flow into the main canal (testimony of Trelia, Garcia; Exhibits 2,3,4 & 15). The main canal for the project was constructed in 1970. This canal generally parallels the west side of 1-95 in the project area and is approximately 14 1/2 miles in length, some 90 to 100 feet wide and five to six feet in depth. It had been estimated that all the improvements for the project would be completed by December 31, 1973. In early 1971, the Drainage District was in the design stages for the next phase when it learned that Volusia County had adopted the home rule charter that abolished, the South County Drainage District. At this point, work on the project stopped and nothing further was done toward completion of the improvements to the land. In the middle of 1972, after negotiations with Volusia County, Petitioner became aware that various state agencies, same of which had come into being since the original purchase of the land, might have some responsibility in connection with the project. The Department of Pollution control, Department of Natural Resources, the Game and Fresh Water Fish Commission, and the Trustees of the Internal Improvement Trust Fund were contacted to see if they had any requirements as to the proposed improvements. The Department of Pollution control was the only agency which expressed an interest or concern in the matter. Petitioner also ceased sales in the middle of ;1972 after discussions with the Florida Land Sales Division, because of the uncertainty of the situation at that time. During the remainder of 1972, Petitioner's representatives had various discussions with officials of the Department of Pollution Control at Tallahassee, but was advised that nothing definitive could be accomplished on the drainage plan pending a resolution of the status of the South County Drainage District which was in litigation at the time. Around October, 1972, as a result of discussions with various county officials and the Department of Pollution Control, Petitioner decided that an environmental impact study would be, beneficial and therefore retained the services of Brevard Engineering Company of Cape Canaveral, Florida, to make such an environmental assessment of Cape Atlantic Estates. This report was completed in February, 1973, and transmitted to the Department of Pollution Control in April. Although there were numerous conversations with Tallahassee representatives of the Department of Pollution Control during the remainder of the year, it was not until early 1974 that petitioner was advised it should start discussing the matter with the Department's central regional office in Orlando. A meeting was held at Orlando between Petitioner's representatives and officials of the regional office in March, 1974 at which time the details of the project were reviewed. Mr. Woods, the regional engineer for the Orlando office at that time, indicated that he wished to study the matter further because he was not familiar with the environmental study which had been received from their Tallahassee office. There followed a field trip to the project area where Mr. Garcia, the project engineer,, and two members of the Orlando regional office of the Department, Mr. Hulbert and Mr. Medley, looked over the area. In April, 1974, there was another meeting with Mr. Woods at which time he indicated that the project would be approached by the Department as a potential pollution source at any points where the waters went outside the property boundaries. This was followed up by a letter from Mr. Woods received by Petitioner in June, 1974, which stated that in view of the primary interest of his office to protect and preserve water quality as to the project, it was recommended that strong consideration be given to modifying the drainage plan to allow for reduction in the following areas: Draining of swamps, marshes, and wet lands which is in general detrimental to water quality by the removal of natural filtration and assimilative systems from the service of treatment of stormwater runoff. Introduction of canals and artificial waterways degrade water quality by virtue of their stagnating effect and general magnification of adverse effects in (1) above by lowering the ground water table. Transporting of water across natural barriers and separate watersheds is generally detrimental to water quality by virtue of a net change of flow patterns and characteristics by reducing or increasing the normal waterbudget in the area. Mr. Woods also pointed out in his letter that, although it was recognized the gridiron pattern of the project made maximum utilization of the available land his office felt that a significant reduction in adverse effects as indicated could be achieved by utilizing the natural systems as much as possible, and that this would require maximum utilization of the existing wetlands, provisions for on-site retention if and where practical, and selective planting to provide for natural filtration and nutrient assimilation. He further indicated that it would be necessary to obtain a water quality certification from his Department, that Petitioner must show the facilities would be properly constructed and operated, and would be required to produce evidence that either the county or the drainage district was in a position to assume responsibility as the permittee (testimony of Trella, Garcia; Exhibit 10). After receipt of the letter from Mr. Woods, Petitioner engaged the firm of Frederic R. Harris, Inc., consulting engineers, of Ft. Lauderdale, Florida, to prepare a definite project report on drainage that would provide modifications of the drainage plan in order to comply with the objections posed in the Woods letter. This report as prepared by John W. Blue, professional engineer and, although dated September 1974, was available in final form in August at which time a meeting was held between Petitioner's representatives and the successor regional engineer in Orlando, Mr. Thomas Hunnicutt. The meeting was held on August 6, and in attendance were Mr. Gene Medley and Mr. James Hulbert of the regional staff. At this meeting, Mr. Hunnicutt was acquainted with the project and the letter from Mr. Woods, and given the "Harris" report for consideration. This report reflected Petitioner's attempts to satisfy the objections of the department by incorporating the following features in the plan: Specifications to prevent the conveyance of oils, chemicals, silt or other pollutants into the drainage waters during project construction. Planting grass on the erodible earth surfaces exposed during construction. Preservation of about 200 acres of natural hammock ponding sites. Designation of about 75 acres of natural overflow retention areas for filtration of roadside ditch runoff. Construction of about 70 acres of artificial overflow retention areas for filtration of lateral and runoff. Provision for about 209 acres of natural water spreading areas at canal and outfall terminals. Avoidance of direct connections between drainage canals and watercourses or estuaries. Utilization of about 127 acres of dug ponds and existing borrow pits for regulation of runoff peaks. Overexcavation of canals and laterals to make permanent ponds. Whereas the report of the Brevard Engineering Company had been based on a 50 year flood condition, the Harris Report was based primarily upon 10 and 25 year flood conditions. There was a misunderstanding as to Mr. Hunnicutt's comments to Petitioner at this meeting. Petitioner claims Hunnicutt had then stated that the project was in good order and that they should proceed to file their application for a permit. On the other hand, Hunnicutt testified that his remarks were predicated on the fact that since Petitioner had indicated it had made all of the modifications in the project that could he done (by virtue -of the grid system that could not be modified) , he therefore felt there was no point in further discussion. He also was of the opinion that there was sufficient information available at that time to permit consideration of an application by the Department. The Petitioner was provided blank copies of a form entitled Application To Construct/Operate Pollution Sources" (Exhibit 5), and, although Mr. Hunnicutt then acknowledged that this form did not apply too well to the endeavor under consideration he told Petitioner that they should go ahead and file the forms, at Tallahassee, attaching all supporting evidence. The application was filed in the joint names of Volusia County and Atlantic International Investment Corporation and signed by the president of the corporation. It was dated September 9, 1974, and submitted and delivered to the Respondent in Tallahassee on September 10, 1974, with a copy being given to the Orlando regional office. Other than receiving a letter dated October 25, 1974, from the Department of Natural Resources indicating that a water quality certification would not be required for the project, Petitioner heard nothing further from the Respondent until it received a letter from Mr. Hunnicutt denying the permit, dated November 6; 1974. This letter said that the regional staff had reviewed the application and based thereon, plus reviews and comments from Brevard and Volusia County Environmental Control, the permit was recommended to be denied because the applicant had not given the Department "reasonable assurance that the results of this project will be in accord with applicable laws, rules and regulations" and that the project "will have significant adverse effects on water quality as well as the aquatic resources in the area. It further stated that pursuant to Chapter 403.087, Florida Statutes, and Chapter 17- 4.07, Florida Administrative Code, the permit was denied and that Petitioner had a right to request a hearing as provided under Chapter 17-4.15, Florida Administrative Code. Petitioner filed its petition for review of the denial of the permit under the aforesaid Chapter 17-4.15, Florida Administrative Code on November 15, 1974 (Exhibits 4, 5, 6, 10, 11, 16; testimony of Mr. Garcia, Mr. Hunnicutt). In processing the application, Mr. Hunnicutt assigned it to Mr. Medley of his office for review. Medley proceeded to contact local agencies including the Volusia County and Brevard County Environmental Sections; Volusia County Public Works Department, St. Johns Water Management District, the Volusia County Environmental Task Force, and the Florida Audubon Society. He testified that all were opposed to the project for various reasons. Aside from the materials attached as exhibits to the application by Petitioner, which consisted of the Brevard Engineering Report, the Harris Report and plans and specifications and chemical test results taken by Department representatives from sample waters ,of the main canal the additional written materials before the Department prior to the, denial of the permit consisted of a letter from Mr. Kinloch, Pollution Control Coordinator of Brevard County, dated October 31, 1974; a letter from the Volusia County Environmental Task Force (a private group of about 25 professional persons who are concerned environmentalists) dated November 4, 1974; and a statement from Cherie Down a biologist with the Brevard County Health Department, dated September 6, 1973 (Exhibits 17,19 and 24). A letter from Gregory Camp, Environmental Control Officer of Volusia County, dated November 5, 1974, was not received in Respondent's Orlando Office until November 7, and therefore was rejected as an exhibit (Exhibit 18 for identification). In addition, Mr. Camp's conclusions were said by the Assistant County Attorney for Volusia County as not being authorized by the County Commission (testimony of Mr. Stuart). About a week before issuance of the denial letter, a meeting had been held at the Orlando Regional Office attended by its chief, Mr. Senkevich, Mr. Hunnicutt, Mr. Hulbert and Mr. Medley. The purpose of the meeting was to arrive at a decision concerning Petitioner's application. The procedure at the region was for the staff to decide the issue involved and then to assign an engineer in charge -- in this case, Mr. Hunnicutt -- to sign the decision letter to the applicant. No minutes of this meeting were made and the decision was a collective one by Mr. Hunnicutt, Mr. Hulbert, and Mr. Medley. They expressed their common opinion at the meeting that the permit application should be denied primarily because of considerations of water quality. Mr. Senkevich testified that he had the authority to overturn, the recommendation of the staff, but since his staff had unanimously concurred in the denial, he felt that their decision was correct. He is a civil engineer and primarily an administrator, but is not familiar with chemistry, biology, or hydrology. At the time, he erroneously believed that hydrological tests had been made by his staff as to the project and was of the incorrect, view that waters of one classification must flow into receiving waters of the same classification. He conceded at the hearing that he had only briefly studied the plan prior to the meeting and indicated that he had been concerned that the project area eventually would be developed with homes that would require septic tanks and cause a considerable problem with the degradation of water in the canals. He therefore was concerned that the canals would not maintain the requirements for Class III waters. He was unfamiliar with the aspect of danger to aquatic resources other than he felt that the main concern had been regarding trees in the area. He recognized that permits could be issued with specified conditions reasonably necessary for the prevention of pollution and that this could have been done, with respect to Petitioner's project. However, he felt that if this were done, it would usually be hard to enforce and so it was easier to insure that the project conformed to requirements at the time of construction rather than attaching conditions to the permit. He believed that if some of the project area which had not been sold could have been utilized for retention of some of the storm water runoff to provide for percolation or water storage, and if certain low areas could have been utilized for something other than lots, this possibly would have cured the objections of the staff. He did not feel that the changes which had been made by the Harris Report were sufficient to overcome the staff's objections to the project. He acknowledged that water tests in the main canal made by the Department since it had been built and prior to November, 1974, had shown an improvement in the canal water quality. He also acknowledged that none of the five criteria for control of storm water runoff set forth by the Department of Pollution Control in an April 1974 memorandum to regional offices (Exhibit 13) were violated by the proposed project (testimony of Hunnicutt, Senkevich). Mr. Medley, a biologist of the department and the project officer for review of Petitioner's application testified that he was mainly concerned because the project was designed in such a way as to eliminate wetland areas that treat and filter stormwater runoff prior to entry into the Hammock area and provide a place for wildlife to propagate. He felt that water and wildlife quality would diminish by reason of the accelerated flow of water caused by the canal system. This would take place by creating an unstable habitat in which there would be less of a variety of organisms by virtue of polluted waters entering the area. Such a condition would reduce the diversity and quality of species of organisms. He also felt that if water was diverted from one basin to another, it would have an adverse effect on biota because of the change in flow. He further believed that the failure of the applicant to address the question of future development of the project area was significant because once development occurs, canals get storm runoff from surrounding areas, become stagnant and high in nutrients. The state is then obliged to insure water quality and has been unable to do so in other projects of a like nature. He also was concerned because the reports attached to the application contained inaccuracies and it was difficult to determine what was reliable and what was unreliable information. His testimony showed that he, too, was under the erroneous impression that a member of the Department had assessed the hydrological aspects of the project when the Department was processing the application, and acknowledged that it would be difficult to determine if water would be degraded until the actual construction had been completed. However, he expressed his opinion that there is presently insufficient technology to create any canal system that would provide water quality to meet state regulations and it was his belief that wetlands should stay as they are in the interest of water quality. At the hearing, he was unable to describe the proposed canal systems for the project or the proposed vegetative filter area at the end of the canal (testimony of Medley) Mr. Hulbert, another Department bilogist, testified it was unrealistic to think that the project would not eventually be developed with hones. His concerns basically were similar to those of Medley concerning canal water quality in the future and as to inconsistencies in reports submitted by the applicant. He felt that the basic problem was the project grid design with canals following such design rather than natural drainage contours, but that modifications could have been made in the design to satisfy the Department's objections if additional buffer zones had been created along and adjacent to the proposed canals. However, he would not have recommended a permit under any circumstances because of the objections of Brevard County and Volusia County. It was his position that in such a situation the Department should deny the permit and then let the matter be determined by a Hearing Officer. He conceded that he had not examined data submitted by either county and that there was, in fact, no data submitted from Volusia County (testimony of Hulbert). Mr. Hunnicutt, the regional engineer, who is an environmental engineer, testified it was the concensus of all at the meeting that everything they had seen pointed to the fact that project drainage couldn't provide water quality sufficient to meet state requirements. His most objectionable aspect of the project was the drainage pattern and the fact that the canals had to be rather deep and did not follow natural contours, because deep canals below the water table would have standing water and no vegetation as would a more shallow drainage system. He felt that the areas of vegetative growth added by the Petitioner in the Harris Report were not large enough and would not be too effective in removing pollutants by the fast flow rate. He also was concerned about inconsistencies in the applicant's exhibits and saw no point in obtaining more test results on peripheral issues because the Petitioner was "locked in" to a deep canal concept. He, too, was under the mistaken notion that the project had been considered by a hydrologist of the department. Although he felt there were changes that could have been made which would warrant issuance of the permit, there was no point in telling the Petitioner about these because its representatives had said they couldn't make any more changes due to the existing grid system. He also agreed with Hulbert that if local agencies objected as they had in this case, the Department would deny the application but that when such objections were received, they were generally in accord with the existing view of the departmental staff. He testified that the question of the impact of the project on shellfish harvesting in the Indian River was not a serious consideration in his mind insofar as denial of the permit was concerned. He acknowledged that a permit could be issued with conditions, but the problem then became whether the applicant could maintain control effectively to enforce the conditions (testimony of Mr. Hunnicutt). A number of expert witnesses of various disciplines were called by the parties to, testify concerning the various ramifications of the proposed construction by the Petitioner. The following findings of fact are made with respect to specific material aspects of the case: The construction of homes on the tracts at Cape Atlantic Estates in any appreciable volume or any extensive use of the land in the next ten years is highly unlikely. This is due to time required for construction of the drainage facilities, and to the fact that most of the land contracts will not be paid out until the 1980's since owners of the tracts will not secure possession of their land until they have completed payment therefor. The land is not suitable for the installation of septic tanks because of the shallow soil and building permits will not be issued because of the dead-end roads in the project and the absence of paved roads ajoining the property (Exhibit 2, testimony of Trella, Maisel, Blue and Ford). It is impossible to state precisely what the impact of construction of the canal system, roads, ditches, retention ponds and control devices envisioned in the drainage plan will have on the water quality of the canals, Turnbull Hammock, Turnbull Creek, and the Indian River. Drainage of the land area by the construction will produce changes in the environment, but also will make the land accessible to owners, and to some extent may benefit the owners of nearby parcels by draining surface waters and lessening salt water intrusion. One owner of adjoining land objects to any changes in its present natural state (testimony of Blue, Hudson, Stock, Medley, Hunt, Kuperberg, White, De Wees, Fogel & Davenport) Draining and developing the project area will change the surface water flow characteristics by reducing the amount of time water is concentrated or retained in the natural area. This will undoubtedly increase the peak flows and volume of water generated from the area as compared with natural discharge. However, this increase will not exceed the capability of Turnbull Hammock to accept these flows, and increased quantities of waters in the Hammock probably would be beneficial by improving its soil conditions. The increase in peak flows and runoff volumes attributable to the project will not exceed 16 percent of the present ten year storm runoff into the Indian River. In terms of groundwater, recharge in the Cape Atlantic Area occurs only on the Atlantic Coastal ridge. A lowered water table, the result of improving drainage, will decrease the fresh water lead thereby reducing recharge. However, the water table will be lowered only one or two feet and if it is maintained with control structures at these levels as contemplated, improving drainage will not have a serious effect on the quality or quantity of the non-artesian water in the shallow aquifer in the area. The water from approximately 80 percent of the land area will flow into Turnbull Hammock and, in the southwest section of the project area, the water will be held in retention ponds and eventually released in a natural flow. Some water will go to the west toward the St. Johns River basin but it is impossible to tell how much flow this will be. The project will have no significant effect on Lake Harney and it is too far removed from the St. Johns River to have any great impact on its conditions. The drainage of the middle area of the project is ill-defined and water can flow either east or west, depending on how much rain has fallen. In the flat area to the north, water can run in both directions. Passage of water through the designed holding areas vegetation, and then reoxogenation in the canals and spreading systems to Turnbull Hammock will improve surface water quality at the site by creating motion. The roadside swales which bring water to the middle lateral canals will lower the ground water table several feet and this may well improve the water system because presently it is ponded and evaporates or filtrates into the atmosphere. Evidence of some salt water intrusion at the lower end of the Hammock area is evidenced by decayed cypress trees which are not salt water tolerant. Additional fresh water in the Hammock would improve this condition (testimony of McElroy, Blue, Clark, Hudson, McClouth; Exhibit 22). Although the waters in the main canal may not always have met all of the regulatory criteria for Class III waters under Department regulations, its quality has improved over the past several years, particularly with respect to the presence of dissolved oxygen. This is in keeping with the opinion of the experts who agreed that construction produces a temporary. adverse effect on water quality, but the waters soon stabilize and vegetation thereafter appears. When the canal system is completed and connected, a natural flow of water will occur to wash out minerals and other harmful substances, and increase the amounts of dissolved oxygen in the water. It is therefore considered unrealistic to use the test reports obtained from water samples in the present dead-end main canal because they cannot be considered representative of the quality of the water that will be present when the drainage system is in operation. Although it cannot be determined what the exact quality of the canal waters will be when in full operation, there are certain projected consequences which reasonably may be considered likely to occur. After construction of the drainage facilities, the flow of water Bill accelerate and this, in turn, can diminish the quality of animal and plant life to some degree in the Hammock area by reducing the diversity of species. The Hammock is normally anaerobic and nutrients are assimilated there to produce trees, low-lying vegetation, and animal life. Although an increased flow of fresh water will be beneficial to dominant trees, low-lying vegetation might suffer somewhat with a consequent impact on the organisms that feed upon them. However, this is a temporary condition during heavy rain and the degree of change in organisms depends on the frequency of flow and how long the water stays in the Hammock area. Added fresh water in the Hammock will reduce salt water intrusion with consequent beneficial effects. The Hammock can receive a flow of at least two times as much water as is now present during rainfall without adverse effects on the environment as long as urban development has not occurred to produce pollutants in the form of chemicals, tars, oils, and other wastes. Although several expert witnesses foresee eutrophication of the water in the main canal during stagnant periods of the dry season and then flushing of undesirable materials and nutrients accumulated by the eutrophic process into the Hammock during the wet season, the designed holding structures with shallow margins to encourage vegetation and the increased use of natural areas at the north outfall of the project area will filter and reduce substantially the amount of any undesirable material entering the Hammock. Canal systems with standing water are sometimes prone to eventually becoming clogged with aquatic plant life, such as water hyacinths and hydrilla. This, in turn, requires periodic destruction of the plants, usually by chemicals, in order to permit waterflow to continue. Though this possibly may be expected in the main, canal at some point in the future, the planned vegetative filtering system should control excessive entry of the chemical and other pollutants into the Hammock. During the period 1970-74, there was no growth of such plants in the dead-end main canal and no indication that it had become eutrophic (testimony of Blue, Morris, Clark, Hudson, Medley, Hulbert, Down, Stock, Ross). Although the area where Turnbull Creek enters the Indian River is designated as Class II waters, oysters or other shellfish are not present to any extent in the designated area. The designated shellfish harvesting area is in the Indian River south of the Brevard County line. The Indian River is moderately high in salinity and a wedge of this water goes into Turnbull Creek and then to the Hammock. The mixing zone of water is at the entrance of Turnbull which flows into the Indian River. Beyond this mixing zone where fresh water meets salt water, if shellfish exist, the limited amount of fresh water entering the river would have no significant effect upon their growth. Oysters need between ten to 30 parts per thousand salinity in the water for best growth and if the project water flowed into the Indian River the salinity would remain the same approximately 20 to 30 parts per thousand. In fact, a decrease in salinity in the water to some extent favors growth of oysters. However, increased rainfall and runoff can increase bacterial counts in shellfish and decrease the incidence of shellfish predators (testimony of Clark, Kinloch, Down). No significant diversion of waters from the Cape Atlantic Estates areas from natural drainage basins can be established other than some diversion in the eastern portion of the project area. Other than that the flow of ground water cannot be determined with accuracy and, in any event, the project would have little effect on surrounding lakes in the St. Johns River basin. Diversion would seldom occur except when there is a major storm because unless rainfall exceeds one or two inches an hour, it normally will be absorbed by the sandy soil (testimony of Blue, McClough, Hudson).
