The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to a variance from the permitting rule requirements so as to authorize installation of an on-site sewage disposal system ("OSDS") on his property in Columbia County, Florida.
Findings Of Fact The Petitioner owns certain real property in Columbia County, Florida, in a subdivision known as "Three Rivers Estates, Unit 5, Lot 33". The property is at "River Mile 7" of the Santa Fe River, as measured by the Suwannee River Water Management District; and the subdivision was platted and recorded in 1962. The lot in question is 400 feet by 90 feet in dimensions and is located approximately 300 feet from the surface waters of the Santa Fe River. The applicant/Petitioner desires to install an OSDS merely for the purpose of serving his motor home when he vacations on the lot in question, because the Columbia County Ordinance involved requires that a residential-type septic system be installed and operating before a resident can obtain electric power to his lot, even for use with a motor home. The original permit application and the variance were denied because the property lies beneath the ten-year flood elevation for the pertinent river mile of the Santa Fe River, where the property in question is located, and because the site has only 27 inches of soil between the surface grade and a solid limerock stratum which lies under the area. Only 10 inches of that 27 inches of soil is suitable for use as part of an OSDS, being of a sandy quality. The remainder of the soil is of a dense, impervious, gray clay, which is not suitable as a treatment medium for OSDS's. It is undisputed that the property surface grade elevation at the proposed installation site is 22.66 feet above mean sea level ("MSL"). The ten-year flood elevation at the site is 31.0 feet above MSL. Therefore, the installation site is approximately 8.33 feet below the ten-year flood elevation. Thus, the proposed installation site cannot meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, with regard to the definitional standards in that provision, to the effect that the site in question cannot be subject to frequent flooding, as measured by ten-year flood elevations for the site. There was no showing by the Petitioner that installation of an OSDS at the site, given the above- mentioned soil depth and characteristics, the fact that the property in question is below the ten-year flood elevation, would not pose an adverse effect on the public health, the health of the applicant/Petitioner or his guests or invitees, nor that adverse impacts on the ground or surface waters in the vicinity of the site, in terms of pollution contamination, will not be occasioned by installation of an OSDS on the lot in question, in terms of a conventional, beneath-surface-grade-type system. The Petitioner proposes, however, the use of a "mounded system", which involves the installation of fill soil above the present grade level, so that a sufficient depth of appropriate treatment soil (42 inches) will exist between the bottom of the drain-field trenches and the water table, which in the instant case, means the limerock layer which lies just above the water table. The problem with such a mounded system, however, is that pertinent Department rules contained in Section 10D-6.043-.049, Florida Administrative Code, regarding the slope and basal area configuration of such mounded systems, reveal that the subject lot is too narrow to install a mound of sufficient height to raise the OSDS and the bottom surface of its drain-field trenches above the ten-year flood elevation. This is because, even though a lower mound of approximately 3 feet in height could be installed to raise the drain-field trenches the required 42 inches above the water table, the 3-foot mounded system would still be beneath the ten-year flood elevation. A mound approximately 10'2" high above surface grade would be required to raise the OSDS a sufficient amount to get it above the ten-year flood elevation. It might be said that the proposed 3-foot mound, which would give sufficient treatment soil beneath the drain-field trenches, would constitute only a "minor deviation" from the permitting requirements of Rule 10D-6.047, Florida Administrative Code, regarding the ten-year flood elevation parameter. Thus, in the instant situation, it might be an appropriate alternative system justifying the granting of a hardship variance based upon a minor deviation from the permitting rules. However, the Petitioner did not prove that such would amount to a minor deviation. Specifically, the Petitioner did not establish that the use of such a system would pose no threat or adverse impact on the ground or surface waters at the site involved nor to the public health. While the septic tank and drain fields in such a 3-foot-mounded system might work, the likelihood of frequent flooding would render the system unsafe from an environmental standpoint, as delineated in the rules, because it would be subject to frequent flooding. Because of the threat of frequent flooding by such a low-mounded system, it cannot be said to be a minor deviation justifying the granting of a hardship variance. Further, Rule 10D-6.047, Florida Administrative Code, requires that when a mounded system is to be constructed in a "regulatory flood-way", a certified engineer performing appropriate calculations and other-engineering techniques must establish that the installation of the mound in the regulatory flood-way will not raise the level of the "base flood". Evidence of such engineering calculations, which would show that the base flood level will not be altered by installation of any sort of mounded system, has not been offered in this record, however. This further militates against any finding that installation of even a 3-foot mounded system would constitute a minor deviation from the permitting rules contained in Rule 10D-6.047, Florida Administrative Code. There is no dispute that the property and the site in question lies within the regulatory flood-way of the Santa Fe River. Thus, in terms of the proposed variance, there has been proof that use of a 3-foot mound beneath the ten-year flood elevation, or a mound which would raise the OSDS proposed above the ten-year flood elevation, would only be a "minor deviation" from the permitting rules, which are designed to protect public health and the ground or surface waters involved from pollution. In fact, it was not shown how such an alternative system would insure the protection of the ground or surface waters involved from any adverse impact caused by pollution from OSDS effluent nor how such an alternative system would operate and still safeguard the public health and the ground or surface waters involved.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department denying the Petitioner's application for a variance from the permitting statutes and rules at issue. DONE AND ENTERED this 7th day of June, 1991, in Tallahassee, Leon County, Florida. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991. COPIES FURNISHED: Mr. Sam Power Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Michael S. Kochan 9360 Craven Road Unit 1401 Jacksonville, FL 32257 Frances S. Childers, Esq. Department of HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609
Findings Of Fact On May 24, 1994, Respondent, Jeff Dyson, applied for a dredge and fill permit from the Department to place an unspecified volume of fill within an historically-existing drainage ditch which carries water to the St. Johns River. The proposed project would direct the drainage currently flowing through the ditch into a 15-inch culvert, which would be installed on the property identified as Lot 3 of Riverwood Subdivision. Swales and structures associated with the culvert are to be constructed during the project and are considered a part of the proposal. See Department's Exhibit 1. The proposed project would place fill in waters of the State, thereby necessitating the Department's approval of the permit. The proposed project, as stated above, is located on Lot 3 of Riverwood Subdivision. The Petitioner owns Lot 4 of Riverwood Subdivision which is located to the east and downstream of the proposed project. The proposed project is located in Riverwood Subdivision which is already developed and single- family residences have been built on both of the lots adjacent to Lot 3. Respondent, Jeff Dyson, seeks the permit in order to develop Lot 3 and build a house on it. The drainage ditch which would be filled runs west to east across the center of Lot 3 and is between four and six feet wide. The depth of this 4itch increases as it moves west to east, reaching a depth of four feet at the eastern edge of the property, where it adjoins the Petitioner's lot. The proposed project would re-route the storm water runoff, which flows into the drainage ditch, around the single-family residence which Respondent, Jeff Dyson, proposes to build. The storm water runoff would be routed through a buried 15-inch culvert from the point of intersection of the existing ditch on the western boundary of the property to the point of discharge at the intersection of the existing ditch and the eastern boundary of the property. Filling of the drainage ditch previously was permitted by the Department in 1984 as part of the subdivision's development plan which authorized Robert A. Weyand to fill the ditch and construct along the southern boundary of the subdivision a swale which would redirect the then-existing drainage through the swale. The swale was constructed; however, the ditch was never filled. The swale carries the majority of the drainage entering the subdivision under Pine Street down the southern boundary of the subdivision to the St. John's River, Two 24-inch culverts under Riverwood Avenue remain from the drainage system which predates Mr. Weyand's permit. According to Mr. Potter, this old drainage system carries peak loads into the drainage ditch which Respondent, Jeff Dyson, proposes to fill at Lot 3. The 24-inch culverts were installed when the subdivision was developed in 1981; however, one of the culverts is completely blocked and the other is only partially open. Contrary to Mr. Potter's assertions about peak loads, the ditch collects water in light rains, and storm water pools on the southwesterly side of Riverwood Avenue and overflows Riverwood Avenue into the ditch flowing easterly in the direction of the proposed project. Riverwood Avenue, the only street in the subdivision, was designed to direct storm water along its curb and gutter system from west to east. This water adds to the flow over Riverwood Avenue at the point of the culvert where it joins with water running in the old drainage system and flows into the drainage ditch. The project, as designed by Mr. Potter, would not adversely effect the quantity of water east of the project. The project was designed so that there would no increase in the rate of runoff with the construction of the proposed residence. The project should not create any flooding downstream because there would be no alteration to the quantity or direction of the existing flows. Mr. Potter used the Department of Transportation (DOT) rainfall intensity duration frequency curves to determine the rainfall amount from the 1.88 acres on the western end of the subdivision upstream of the project. The DOT rainfall intensity duration frequency curves are widely accepted criteria for determining runoff for residential developments. In computing the amount of drainage flow which the 15- inch culvert would have to handle, Mr. Potter considered (1) the rainfall for a ten-year storm on the 1.88 acres at the westerly end of the subdivision, and (2) the flow under Pine Street through the existing culvert, which constitutes a limit to the potential flow into the drainage system at the southwest corner of the subdivision. The 15-inch culvert designed by Mr. Potter would handle two times the amount of water generated based upon the stated assumptions in a ten-year storm event. The proposed project would not increase these existing flows; however, the quantity of water exceeds the flow from the western portion of the subdivisions computed by Mr. Potter which follows the natural slope of the terrain into the old existing ditch system. The Petitioner introduced a video of the storm water collection and flow in a light rain at the location of the culvert under Riverwood Avenue. This video shows that the existing culverts under Riverwood Avenue will not handle the flow of water in the ditch southwest of Riverwood Avenue; therefore, the storm water backs up and flows over Riverwood Avenue at this point into the ditch east of Riverwood Avenue. Other than the ditch under Pine Street and the runoff from the 1.88 acres at the western end of the subdivision, the only other source of storm water runoff is the runoff on Riverwood Avenue. Mr. Potter observed the video and indicated that the amount of water appeared to exceed his computations. The Petitioner testified regarding the water levels in the ditch underneath his foot bridge over the ditch. During significant storm events, the water level reaches the bottom of the foot bridge. The area underneath the foot bridge exceeds the area of a 15-inch culvert. Water flow during a significant storm is unrestricted downstream of the foot bridge, and is not dammed up. The proposed project will constitute a dam on the existing drainage ditch with a 15-inch outfall. Based upon the video of the storm water runoff generated by a light rain, the Petitioner's observations of storm water runoff in the ditch during a significant storm event, and the design of the storm water runoff on Riverwood Avenue, it can be reasonably anticipated that the proposed project will dam up water to the west of the project to the highest level of the swale in front of the proposed project. Although the proposed project will not adversely effect the quantity of water, the water impounded by the project would cause a significant flooding problem for the upstream property owner. The design of the culvert does not provide for protection against children being pulled into the culvert system. The water impounded by the proposed culvert system would be an attraction to children who would be at risk of being pulled into the culvert. It is particularly dangerous because the ditch is much shallower southwest of Riverwood Avenue, and when flooded, the depth of the ditch northeast of Riverwood Avenue is not apparent. The water quality standards are currently being met at the site of the proposed project. The proposed project, as constructed, is not expected to cause any water quality violations. The permit contains conditions designed to maintain water quality during actual construction. These conditions include General Conditions No. 4 and 5 and Special Conditions 5- 10. Reasonable assurances were provided that water-quality standards will not be violated by the proposed project if built in accordance with the designs submitted. The design of the 15-inch culvert includes a 90 degree change of direction before connecting to the outfall on Lot 4. This 90-degree change in direction will dissipate the energy of the water, reducing the likelihood of scouring or erosion at the outfall point. Although the project is designed to eliminate scouring, the Department has included a condition in the permit, which requires Respondent, Jeff Dyson, to correct scouring, shoaling, or other alterations of the downstream portion of the drainage way. The flooding to the upstream property owner can be minimized by lowering the level of the swale in the front of the project to create an emergency spillway. The applicant has provided reasonable assurance that the water quality will not be adversely effected, and the proposal will not increase the volume of water. The project will not adversely effect the conservation of fish and wildlife, including endangered or threatened species or their habitats. The ditch does not contain any fish or wildlife. The subdivision in which the project is located is almost completely built out. Therefore, there are no endangered or threatened species living in the area. The project will not adversely effect navigation or the flow of waters and will not cause harmful erosion or shoaling. The project will not adversely effect fishing or recreational values or marine productivity. There are no fishing or marine recreational values associated with drainage ditches. The project will be permanent in nature. The project will not adversely effect significant historical or archeological resources. The current function of the ditch is to convey storm water to the St. John's River. This function will be effected as indicated above because the proposed project constitutes a dam with a 15-inch outfall. If the 15-inch culvert is incapable of carrying the storm waters introduced into the ditch west of the proposed project, the storm water impounded by the proposed project will flood the property west of the project to the level of the highest point of the swale in the front of the project. By redesigning this swale to have a maximum elevation of ten feet or less feet, the flooding will be retained within the approximate elevations of the existing ditch. In addition, steps can be taken to minimize the potential hazzard to children caught in the ditch. There are no cumulative impacts associated with this project. Except as noted above, the applicant provided reasonable assurances that the project is not contrary to the public interest, as defined by Section 373.414, Florida Statutes. The Department uses a balancing test, which consists of taking the public-interest criteria and weighing the pros and cons of a specific project. The ultimate question is whether the proposed project is contrary to the public interest. The Department believed that it was not contrary to the public interest. Based upon the evidence presented, the project has two adverse impacts, as indicated in Paragraphs 16 & 27. However, these can be eliminated or minimized to an acceptable level by the modifications recommended.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department approve issuance of the permit with the added conditions that the swale and driveway at the front of the proposed project not exceed an elevation of ten feet and that the culvert be constructed to protect children from being pulled into the intake. DONE and ENTERED this 21st day of November, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Jeff Dyson 395 Corporate Way Orange Park, Florida 32065 Michael S. McGurk 297 Riverwood Drive Orange Park, Florida 32073 Lynette Ciardulli, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Al Potter 905 North Street Jacksonville, Florida 32211 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Respondent's statements as set forth in the First Amended Petition to Determine Validity of Agency Statements Defined as Rules are rules as defined in Section 120.52(15), Florida Statutes, which have not been promulgated as required by Section 120.54(1)(a), Florida Statutes.
Findings Of Fact Petitioner alleges that the following constitute agency statements defined as rules but not properly adopted as rules by the District: The District considers a particular parcel of property to be located within a "floodway" within the District's regulatory jurisdiction for Works of the District (WOD) permitting on the basis of the parcel being located within a floodway established pursuant to a currently-approved Federal Emergency Management Agency (FEMA) Flood Insurance Study (FIS). The District will not accept any alternative floodway boundaries that are inconsistent with those established in the FIS unless FEMA confirms that the alternative boundaries are more accurate than those obtained from the existing FIS, and FEMA approves the alternative boundaries through a formal approval process, such as a Letter of Map Revision that also requires local government concurrence. If the District determines the parcel to be within its regulatory floodway, it will require an Environmental Resource Permit (ERP) application for any development activities within the floodway, other than those entitled to a general permit under Rule 40B-4.3010, Florida Administrative Code. The District will require an ERP for the activities described in paragraph "c" notwithstanding the fact that the Department is evaluating those same activities as part of an ERP application that has been submitted to the Department of Environmental Protection (Department) for the same activity in the same location under the terms of the Operating Agreement.1/ The District will evaluate an application to conduct development activities as described in paragraph "c" based upon the full range of ERP permitting criteria contained in the District's rules, even though the Department is processing an ERP application for the same activities pursuant to the Operating Agreement between the District and the Department. The District's policy is to deny or to object to the issuance of any permit application to conduct commercial mining operations in the WOD composed of the Alapaha River floodway. It is the policy of the District to consider any proposed development activity in a WOD, other than those eligible for a general permit under Rule 40B-4.3010, Florida Administrative Code, to have an adverse impact on the regulatory floodway, and thereby to be unpermittable by the District. The District's policies against allowing development activities in WODs apply even if a professional engineer certifies under Rule 40B-4.3030, Florida Administrative Code, that the activity will not violate the conditions of issuance set forth in the rule. The policies apply because the District will consider the development activities to violate ERP permitting rules applicable to all development activities, not just those within WODs. It is also the District's policy to ask the Department to deny ERP applications for development activities proposed in WODs that require ERPs even though the Department is processing the application pursuant to the Operating Agreement. The District's policy is to deny ERP applications to conduct commercial mining activities in WODs as determined by the FIS, and to recommend to the Department that ERP applications to the Department for such projects be denied, unless the applicant goes through the FEMA amendment process described in paragraph b to remove the area from the FEMA- determined floodway. Each party requests that it be granted costs and attorney's fees pursuant to Section 120.595(4), Florida Statutes. Stipulated Facts Angelo's is a Florida Limited Partnership, whose address is 26400 Sherwood, Warren, Michigan 48091. Respondent is an agency of the State of Florida established under Chapter 373, Florida Statutes, with its address at 9225 County Road 49, Live Oak, Florida 32060. Angelo's owns property in Hamilton County approximately four miles to the east of Interstate 75 and to the north of U.S. Highway 41, immediately to the east of the Alapaha River. Angelo's conducts commercial sand mining operations on a portion of its property pursuant to various agency authorizations, including an ERP issued by the Florida Department of Environmental Protection (Department), Permit No. 158176-001, and a Special Permit issued by Hamilton County, SP 98-3. The ERP was issued by the Department pursuant to its authority under Chapter 373, Part IV, Florida Statutes. Angelo's mining operations constitute a "mining project" as that term is used in Section II.A.1.e of an Operating Agreement Concerning Regulation under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits under Section 403.814, Florida Statutes, between Suwannee River Water Management District and Department of Environmental Protection (Operating Agreement). The Operating Agreement has been adopted as a District rule pursuant to Rule 40B-400.091, Florida Administrative Code. Angelo's has filed with the Department an application to modify its ERP to expand its sand mining operations into an area of its property immediately to the west of its current operations (the "proposed expanded area"). Angelo's application is being processed by the Department at this time. Angelo's ERP modification application is being processed by the Department under the Operating Agreement. The District has asserted permitting jurisdiction over the proposed expanded area because the proposed sand mining activities would occur in what the District asserts to be the floodway of the Alapaha. The District asserts that an ERP would be required from the District so that the District can address the WOD impacts. It is the District's position that the District's review of any ERP application to undertake development activities in a WOD would be based upon all of the ERP criteria, and not just those criteria relating to floodway conveyance referenced in Rule 40B-4.3030, Florida Administrative Code. On or about November 30, 2001, the District published in the Florida Administrative Weekly a notice of its intent to adopt the FEMA Flood Insurance Rate Maps (FIRM) to delineate floodways for the purpose of its works of the district regulatory program. Facts Based on Evidence of Record Background/Events leading up to this dispute The total amount of the subject property owned by Petitioner is approximately 560 acres. The property is generally a rolling terrain. A significant feature is a man-made berm which was placed around the perimeter of the property by a former owner, presumably to keep water off of the land during floods of the Alapaha River. Dennis Price is a self-employed registered professional geologist. At one time, he was employed by the District and at another time, he was employed by Petitioner. For purposes of this proceeding, he was hired by Petitioner as a consultant for certain permitting projects including the project that gave rise to this dispute. Mr. Price met with and corresponded with the District as well as staff from the Department over a period of two years regarding this mining project. In June of 1999, the Department wrote to Mr. Price in response to a meeting. The letter noted that Petitioner intended to expand mining operations. In addition to informing Mr. Price of the Department's permit requirements, the letter referenced the District's permitting requirements: Mr. Still provided us with an aerial photograph showing the SRWMD's regulated floodway in the area of your mine. A copy is enclosed with the floodway line highlighted in orange. A substantial portion of your proposed expansion area will be within this floodway. The SRWMD has adopted the Alapaha River and its floodway as a works of the district. The Department adopted the SRWMD's regulations pertaining to the environmental resource permit; however, this did not include the regulations pertaining to projects within works of the district. If your permit application only includes areas outside of the floodway, a single application will have to be provided to this bureau. If you intend to expand within the floodway, a separate application will also have to be provided to the SRWMD for a works of the district permit. In either situation, the Department's Jacksonville office will review any modifications to your industrial wastewater permit. (emphasis supplied)2/ In response, Mr. Price wrote to the Department in July of 1999 and stated in pertinent part: Dear Mr. Neel, this letter is in response to your June 22, 1999 letter "RE: Permits for Mining Operation". Angelo's currently has a Sand and Limestone General Permit from DEP - General Permit Number FLA011635. That permit is based on a 5 year mining plan that was presented to the DEP on January 11, 1999. The permit, my letter and the 5 year mining plan presented to DEP are enclosed. Another attachment is an aerial photo of the property showing the Regulatory Floodway line and the location of the areas to be mined under that 5 year mining plan. The aerial photograph has superimposed upon it the location of the floodway of the Alapaha River, as determined by FEMA maps. Please note that the 5 year mining plan and the associated storage and processing areas are outside the regulatory floodway. Therefore, no works of the district permit will be needed at this time. See FAC Rule 40B-4.300(1)(a) [sic]. Future mining beyond the five year mine plan will not occur without first applying for and obtaining permits from the appropriate regulatory agency. At the present time we will only mine areas within the 5 year mine plan. We will have an engineer field locate the floodway line on the property to ensure that no mining or associated storage and process activities occur within the floodway. We are requesting that the ERP permitting process remain within the DEP bureau of Mine Reclamation since the DEP has already issued a general permit for this activity and the DEP normally handles ERP's for mining operations. We have determined that the mining area will be less than 100 acres, and based on Rule 40B-4.2020(2)(B) FAC a general permit may be applied for. We will notify you when we have a draft application prepared and would like to meet with you at your earliest convenience after that to discuss the permit application. (emphasis supplied) In response to information which Mr. Price provided to the Department, the Department wrote to Mr. Price in December of 1999 and again addressed concerns about the area of the project in relation to the floodway line: Specific Item: FLOODWAY Information submitted in response to the request for additional information (RAI) dated August 12, 1999, indicates that Angelo's proposed project boundary and activities extend up to and coincide with the Floodway Line. There appears to be no set-back or buffer from the Floodway (or any other) Line. Chapter 40B-4, Florida Administrative Code (F.A.C.), contains the rules for the Suwannee River Water Management Area which were adopted by the Department of Environmental Protection. Section 40B-4.2010(2)(b)(3)(b) provides that a General Permit may be issued for construction, operation, and maintenance of a surfacewater management system servicing a total project area less than 120 acres provided the system will not be located in, cross or connect to a work of the district. Information submitted with this (November 12, 1999) submittal indicates that the proposed activities within the proposed project coincides with, or is so closely located to, the Floodway Line so as to indicate that the proposed activities would be considered to be connected to a work of the district. This is based upon examination of the plan views and [sic] well as cross section information that has been provided. Please provide a discussion, and drawings as may be needed, that addresses all activities along the established Floodway Line. This information should address all aspects of all operations along this line through the completion of reclamation activities. Be sure to address best management practices, and any proposed setbacks in the response to this request. (emphasis in original)3/ Mr. Price described the proposed project as part of the permit application which was submitted to the Department: Describe in general terms the proposed project, system, or activity. Angelo's Aggregate Materials, Ltd. (AAM) owns approximately 341 acres of land. The current mining site, known as the Jasper Pit, is located on a 160 acre parcel of land. Of the 160 acres, only 82.45 acres are available for mining since the remainder of the property falls within the floodway boundary of the Alapaha River. The 160 acre parcel has an existing berm around the entire perimeter of the property constructed in the 1950's by the previous owner. The Alapaha flood study conducted for FEMA did not take into account this berm. AAM is proposing to construct a 20' wide access road between NW 8th Boulevard and the Jasper Pit, encompassing approximately 7.22 acres. This roadway will be constructed within the limits of property owned by AAM. The stormwater management system for the roadway will consist entirely of grassed swales as covered under FDEP's swale exemption. The Jasper Pit is a sand and limestone mining operation. (emphasis supplied) On August 28, 2001, David Still, the District's Director of Resource Management, wrote a letter to the Department in response to a request received by e-mail from the Department for technical assistance. Mr. Still responds to requests for technical assistance from other agencies as a matter of routine and as contemplated by the operating agreement between the Department and the District. The letter reads as follows: The floodway along the Alapaha River was identified and mapped as part of a Federal Emergency Management Association (FEMA) flood study performed by the United States Army Corps of Engineers, subsequently approved by FEMA and adopted as part of the local government (Hamilton County) ordinance. Based on the above, Suwannee River Water Management District (SRWMD) then adopted the floodway as a Work of the District (WOD). There is only one floodway. SRWMD recognizes and accepts the FEMA flood study performed by the U.S. Army Corps of Engineers and local government (Hamilton County) floodway boundary as the best available information to identify the floodway boundary. There is a formal process whereby change can be made to the FEMA boundary with additional or improved information. If FEMA and Hamilton County approve a revised floodway delineation and boundary, so be it, SRWMD will recognize it, however, SRWMD will not unilaterally change a boundary resulting from a detailed federal flood insurance study. We have informed Mr. Thompson and his client of this. We consider the kind of work contemplated by the applicant (at least based on our earliest discussions with them) will cause an adverse impact to the WOD (the floodway) which of course is in conflict with the requirements of 40B-400.103(1)(h) and SRWMD 40B-4, Part III, Florida Administrative Code (F.A.C.). The District will object to the issuance of any permit in direct conflict with District rules. We feel the rule is clear and any conflict with 40B-400.103(1)(h), F.A.C. which the Florida Department of Environmental Protection has adopted by reference requires denial of the Environmental Resource Permit (ERP) application. Any work of this nature within a WOD is subject to the additional permitting requirements of 40B-4, Part III, F.A.C., even if the District needs to implement such requirements with a separate WOD permit. Mr. Still's reference to "the applicant" in the August 28, 2001, letter is to Petitioner. While Mr. Still is not the agency head, his August 28, 2001, letter clearly communicates the District's policy. Given his position in the agency and the manner in which he discussed this issue, the letter describes and communicates the District's policy on what constitutes a floodway and its boundary. Mr. Still does not have final authority to make decisions on permitting within the District, as that authority rests with the governing board. In a letter written on October 10, 2001, in response to a letter from Petitioner's counsel, Mr. Still stated that District staff would recommend to their governing board that Petitioner's proposed activity is an activity within a floodway that is regulated under Chapter 40B-4, Part III, Florida Administrative Code, and that the proposed activity would adversely impact the floodway: "Therefore, as staff, we would recommend our governing board consider this activity adverse to our rules." This letter is case specific to Petitioner. Within a few days of Mr. Still's October 10, 2001, letter, Petitioner filed its Petition to Determine Validity of Agency Statements Defined as Rules. Other facts established by the evidence of record The District uses FEMA FIRM maps as evidence of the location of the floodways in the works of the district. The District communicated this policy in Mr. Still's letter dated August 28, 2001. The District will not unilaterally change the floodway delineation and boundary established by FEMA. In order for an applicant to persuade the District that a proposed activity within the FEMA floodway line is not within the District's floodway, an applicant must apply to FEMA for a map amendment or revision. The District will acknowledge that a proposed activity is not within the floodway of a work of the district only if the applicant is successful in obtaining a map amendment or revision showing that the proposed activity indeed is not within the floodway. The District has applied this policy to another company which applied for a permit. That is, the District required the permit applicant to apply to FEMA for a map revision or amendment as a condition of issuance of a permit because its proposed activity was within the FEMA floodway as established by the FEMA maps. Petitioner has not filed a permit application with the District regarding the proposed mining project. It is Petitioner's position that to do so would be futile.
Findings Of Fact The Parties The Applicant, Trail Ridge Landfill, Inc. (Trail Ridge), is a corporation formed in 1989 for the purpose of developing a landfill project and providing waste disposal capacity for the City of Jacksonville. Trail Ridge Landfill, Inc. is a wholly-owned subsidiary of Waste Management of North America, Inc. Its operating division is involved in the waste collection, recycling and disposal business. Waste Management of North America, Inc. is a wholly-owned subsidiary of Waste Management, Inc., which is involved in all facets of solid waste collection and disposal nationally. The Florida Department of Environmental Regulation (DER) is an agency of the State of Florida charged with the responsibility of regulating solid waste management facilities and with permitting their initial construction and operation. It is charged with reviewing applications for permits for construction of such facilities, for reviewing applications for dredge and fill permits in wetlands or waters of the State and, as pertinent to the project involved in this proceeding, for storm water management and storage of surface water and the regulation thereof through its permitting and enforcement authority contained in Chapters 403 and 373, Florida Statutes, and Titles 40C and 17, Florida Administrative Code. The Petitioners are Coastal Environmental Society, Inc. (CESI), a not- for-profit Florida corporation established for the purpose of protecting natural resources. St. Johns Preservation Association, Inc. (SJPA), also a not-for- profit Florida corporation established for the purpose of protecting the community, including environmental concerns; Baldwin-Maxville Coalition, Inc., also a not-for-profit corporation established to promote the health and welfare of its community, including environmental concerns; William McCranie, a resident of Jacksonville, Florida; Darryl Sperry, a resident and citizen who lives 1 1/4 miles from the proposed landfill site in Baker County. All Petitioners have been established to be substantially affected by the proposed permitting and the projects related thereto and all have met pertinent standing requirements as a matter of fact and law. The Respondents do not contest the standing of the Petitioners. Background and Purpose of the Project The purpose of the proposed landfill facility is to address the solid waste disposal needs of the City of Jacksonville and Duval County (the City). The City currently disposes of solid waste at two landfills. One is on the east side of Jacksonville on Gervin Road, and the other is located in the north area of Jacksonville on Island Road. The presently used, east landfill is an unlined landfill currently operated pursuant to a DER Consent Order, in connection with which closure of that landfill is planned. The north landfill consists of three unlined cells and one lined cell. The City currently has unused landfill capacity at these two landfills which will last approximately one more year, but has also sought approval for expansion of the north landfill which would provide about two more additional years of capacity, if approved. The proposed landfill project, if approved, constructed and operated, would meet these solid waste disposal needs for approximately 20 to 25 years. The project at hand began when the City issued a Request For Proposal for private companies to submit bids to the City for construction of additional landfill capacity somewhere to the northwest of Jacksonville in Duval County. Two companies that met qualifying requirements submitted proposals in response to the request for proposals. Trail Ridge was one of those two qualifying bidders. The City selected the Applicant for contract award and then entered into a contract. The Applicant has an option to purchase the proposed landfill site from Gilman Timber and Land Company (Gilman, Gilman Paper Company). After issuance of the permits to the Applicant, the option would be exercised. Thereafter the property would be immediately conveyed to the City from the Applicant. Thus the site of the proposed facility will ultimately be owned and controlled by the City, although the Applicant will operate the landfill under its contract with the City. Gilman presently uses the 1,288 acre site and several thousand surrounding acres for growing timber, principally pine trees, in a pine plantation-type operation grown for use as pulp wood. Much of the site and surrounding Gilman land is characterized by pine trees grown to an age of 20 years or less and then harvested. A great deal of the site property has recently been cut, chopped, plowed re-bedded and re-planted with pine trees. Although some of the site is characterized by mature timber, much of the timber has been recently planted or is otherwise timber not yet mature enough for harvest. The option agreement provides that Trail Ridge will purchase the property from Gilman for $10,000 per acre. The City will then purchase the 1,288 acres from the Applicant for $2,600 per acre, which the Applicant maintains is the current, fair-market-value for the land as it is currently used as pine plantation for growing pulp wood. These terms and conditions are a part of the City's Request For Proposals. In addition to paying the Applicant $2,600 per acre for the 1,288 acre site, the City will pay the Applicant a fee over the life of the operation of the proposed landfill. The fee, amortized over the 20- year span of the agreement, will make up the difference between the Applicant's $10,000 per acre purchase price paid to Gilman and the City's $2,600 per acre initial purchase price paid to the Applicant. The City will thus ultimately re- pay Trail Ridge the $10,000 per acre for the purchase price for the property. The Applicant corporation will operate the landfill over its entire useful life and then close it. Thus, the Applicant's own figures show the land is valued at $3,348,800. The record does not reflect the reason for the purchase price paid to Gilman being $12,880,000, of which the City will repay $9,000,000 to the Applicant in the form of the operation fee, over and above the initial payment to the Applicant of $3,348,800. In any event, the utilities payment to the Applicant of the $12,880,000 for the land and the operation of the landfill only represents the recompense to the Applicant for the purchase funds expended for it to buy the site from Gilman. Additionally, the Applicant, through its option agreement with Gilman, is required to pay Gilman a $60,000 per month option fee. $15,000 per month of that must be paid during the pendency of the option, with the remainder of the $45,000 monthly fees due upon closing of the purchase. The portion of the operation fee paid by the City over and above the $2,600 per acre initial purchase price, attributable to the land appraisal itself, will be paid by the City on the basis of a certain dollar fee-per-ton of solid waste handled and disposed of in the landfill by the Applicant. Testimony indicates this will be approximately $8.00-$15.09 per ton, although the evidence as to which amount is indefinite. The testimony of Applicant's witness Allen, in any event, references these amounts as applicable to the City's solid waste "stream" handled by Trail Ridge at the proposed facility. Its contact with the City assures the Applicant of a minimum of 569,000 tons of waste per year to which the fee would apply. The City currently generates approximately 750,000 tons of waste per year. There is no evidence of what the construction or other capital costs or operation expenses related to the proposed facility will be over the useful life of the facility for the Applicant or related corporations. Site and Design The proposed site is 1,288 acres in size, located in southwestern Duval County, approximately three miles south of Interstate Highway 10, 1.5 miles west of U.S. Highway 301 and 1.14 miles north of State Road 228. The site is located in a sparsely populated area approximately 4 to 6 miles from the City of Baldwin, 5 miles from the City of Macclenny and 2 miles from the City of Maxville. A substantial portion of the proposed site will be left undisturbed and used as a buffer area to separate it from any surrounding development. There are water supply wells within fairly close proximity to the site. One well is within a mile of the site and three are approximately 1.5 miles southeast of the site. The proposed facility will include both a Class I and Class III solid waste disposal area. The Class I area will be approximately 148 acres in size, and the Class III area, 28 acres. The Class III disposal area will only be used for non- household refuse such as construction debris, tree and shrubbery clippings and the like, which will not generate deleterious substances in liquid or gaseous form, as will the Class I landfill. The remainder of the 1,288 acres will be used for buffer zones, dirt borrow areas, storm water management facilities and ancillary facilities necessary to the day to day operation of the landfill. No part of the Class III disposal area will be located within 200 feet of jurisdictional wetlands, which are the closest bodies of water. The project will be located on "Trail Ridge," which is a relatively elevated geographic feature, extending generally in a north-south direction in western Duval County. Geologically, it is an ancient sand dune. There is a substantial decline in elevation of this portion of the ridge from west to east, which produces surface water drainage patterns in a west to east direction at the site, also accompanied by surface water drainage patterns in a southerly- northerly direction into wetlands which occur on the south and north verge of the site, because the site is a prong or easterly extension of Trail Ridge lying between wetlands which occur on the northerly, southerly and easterly boundaries of the Class I disposal site. The 1,288 acres, including the landfill sites themselves, have been used for silvi-culture practices since 1948 or earlier, and are currently managed primarily as a slash pine plantation grown for pulp wood purposes. The present owner of the site, Gilman Paper Company, plans to continue this use of the site should the landfill project not be approved and constructed. Since 1948, the entire site, including much of the wetlands thereon, have been logged, some portions of it as many as three times. The silvi-culture practices at the site include clear- cutting, chopping, burning, harrowing, tilling and bedding of the soil, and planting of pine trees. The pine trees are grown to be harvested on a 20-year cycle or less. Due to these intensive silvi-cultural practices, the natural conditions of the site have been significantly altered and much natural vegetation, such as bottom-land hardwoods, has been replaced by planted pine trees. The area has been extensively ditched for drainage purposes and logging roads have been constructed throughout the site. The design of the Class I disposal area of the landfill includes three major components: a liner system, which includes a permanent leachate collection and removal system, a cap and closure system and a gas control system. The Class I disposal area is designed to be 140 feet high when the landfill is completed and closed in approximately 20-25 years. It will have typical landfill refuse "lifts," of approximately 8 to 12 feet in height, with a side slope grade of three horizontal feet to one vertical foot of elevation gain. This is the maximum grade steepness allowed by DER rules. The Class III landfill, in which no household garbage, chemicals, oils and greases or other deleterious substances will be deposited, will include only a cap and closure system. In order to carry out Department regulatory requirements designed to contain waste permanently in a well- defined area and to minimize the amount of leachate produced within a landfill, as well as to collect and remove leachate that is produced, the landfill will have, in effect, a double liner system. The liner system is designed to contain the leachate produced when rain water contacts waste in the landfill and to cause that leachate to percolate vertically downward through the landfill, capture it in the liner system, prevent it from contacting groundwater and to remove it and treat it. Leachate from the Class I disposal area will be contained by the liner system and removed by a leachate collection and removal system. The liner system, starting from the bottom and proceeding upward, will consist of a 6 inch thick layer of compacted, subgrade soil. Over that layer, a prefabricated "bentonite" clay-like material will be deposited. Directly over the bentonite layer will be a high density polyethylene liner (the secondary liner) called a "geomembrane." The bentonite material has the characteristic of swelling when contacted by a liquid so that, if the geomembrane leaks, the bentonite will swell and plug the hole in the liner above it. On top of the bentonite layer and the geomembrane layer, is a synthetic drainage material called "geonet." Geonet has a very high transmissivity rate and therefore has great capacity to conduct water within its own plane. Lying immediately above the geonet material is a geotextile filter designed to keep sand out of the pores or interstices of the geonet. Above that geotextile filter is a second geomembrane (the primary liner). Above the second geomembrane is another geonet layer, as well as another geotextile filter layer. Then to protect the entire liner system from damage, two feet of clean sand will be placed above the uppermost geotextile filter layer. The two feet of sand also acts as a drainage layer for the uppermost geonet. The leachate that percolates down through the waste and the sand will contact the geonet and then be carried down slope on top of the geomembrane. This constitutes the leachate collection system. The bottom geonet is called the "leak detection system." This is because, if a hole develops in the primary liner, any leachate coming through the hole will be quickly drained away through the bottom geonet. The bottom geonet thus operates as a backup leachate collection system, since any leachate reaching the bottom geonet will also be discharged into the leachate removal system. If a leak should develop in the secondary liner, the bentonite material would quickly plug the leak, swelling and absorbing that liquid. The Petitioners have stipulated that the Applicant has proposed a liner system and leachate collection system for the Class I disposal area which meets all criteria of Chapter 17-701, Florida Administrative Code, except as to the requirements of Rule 17-701.050(5)(c), (e)3. and 4. and (f)3., Florida Administrative Code. The Applicant demonstrated that the liner system and leachate collection system will meet the criteria of Rule 17- 701.050(5)(c), Florida Administrative Code. The liner system will be installed in accordance with a quality assurance plan. A specific condition already agreed upon will require the Applicant to submit for approval a revised quality control and assurance plan for installing the Class I synthetic liner system, after selection of the liner manufacturer and prior to the liner's installation. The liner system is designed so that it will be protected from puncture by waste materials or landfill operation equipment. In addition to the two feet of sand placed on top of the entire liner system to protect it, when initial waste disposal begins, the first lift of waste across the entire area of the liner system, as it is installed in phases, will be composed of 6-8 feet of "select waste" to protect the liner from puncture. Select waste is waste containing no pipes, roots or other potentially puncturing objects which could penetrate the sand layer to damage the liner system. A quality assurance engineer will be on site full-time supervising the initial placement of the select waste until that phase of the landfill operation is completed. A grant of the permit should be so conditioned. The Applicant has established that the liner system and leachate collection system will meet the criteria of Rule 17-701.050(5)(e), Florida Administrative Code. The leachate depth on top of the primary and secondary liners will not exceed a foot because the geonet has the capacity to quickly remove leachate from the liner. The actual hydraulic head of leachate on the primary liner will be only approximately 1/4 inch. The depth on the secondary liner was shown to be even less. The liner system and leachate collection system will meet the criteria of Rule 17-701.050(5)(e)3. and (f)3., Florida Administrative Code. The design of the collection system, including the geotextile filter, will prevent clogging of the system throughout the active life and closure period of the landfill, primarily by placing a gravel aggregate around the collection pipe so as to prevent debris from entering the system. A pilot line will also be installed in each collection pipe to facilitate access for mechanical cleaning, should it be necessary. In the unlikely event of an obstruction in the system, the leachate would simply bypass that area and continue down-grade to the next downstream leachate collection pipe and be removed from the landfill for treatment by that means. The liner system and leachate collection system will also meet the criteria of Rule 17-701.050(5)(e)4., Florida Administrative Code. The leachate collected will be carried downhill to pipes at the east end of the landfill. The leachate will then be pumped from the pipes into storage tanks. Trucks will then be filled with leachate to be transported to the City's Buckman Regional Wastewater Treatment Plant, owned and operated by the City, for treatment and disposal. Unrefuted evidence shows that this plant has adequate capacity and treatment capability to safely treat and handle the leachate. The truck loading areas will be equipped with berms and other means of protecting the surrounding wetlands, surface and groundwaters from leachate spills during the truck filling process. The Applicant's evidence does not demonstrate, however, that the tanks themselves and the area surrounding them will have protective measures for containing leachate spills. In order to comply with the above rule, the totality of the evidence concerning the leachate collection, disposal system and treatment method demonstrates that the tanks should be accompanied by a surrounding containment system (walls or berms) which will have the capability of containing the entire capacity of a tank should failure of a leachate collection tank or related piping or valving occur. Any grant of the permit should be so conditioned. The Petitioners have stipulated, and the Department agrees, that the Class III disposal area is exempt from the liner system and leachate collection system requirements of the above-cited rule provisions. Covering and Closure System Both the Class I and Class III landfills are designed with a composite soil covering system to minimize the amount of rainfall which can come into contact with the solid waste so as to minimize the creation of leachate. During the day to day landfill operations, a 6 inch initial cover will be applied to enclose each Class I landfill disposal cell on a daily basis, except for the working face itself, where waste is currently being deposited. The working face may be left uncovered, so long as solid waste is scheduled to be placed on it within an 18 hour period. A 6 inch initial cover will also be applied once every week to enclose each Class III landfill disposal cell. Thereafter, an intermediate cover of one foot of compacted earth will be applied on top of the initial cover within seven days of initial completion, if a final cover or additional lift on top of that completed cell is not to be applied within 180 days of cell completion. The initial cover will consist of sandy soil, over which will come the intermediate cover of one foot of compacted earth. The final cover will be applied to those portions of the landfill which have been filled with waste to the extent of designed dimensions at the time those portions have been filled. The final cover, to be placed on the sides of the landfill and ultimately upon the top at the end of its useful life, will be placed on top of the 12 inches of intermediate soil layer and will consist of 12 inches of compacted clay with a permeability of 1 X 10/-7 cm/sec. Next will come a layer of 12 inches of compacted soil and then a final layer of 12 inches of top soil, upon which the Applicant will plant grass for erosion control. Erosion of the cover layers on the side slopes is designed to be minimized by closing areas of the landfill as they are filled, an operational procedure commonly referred to as "close as you go." The final cover layers placed on the landfill outside of the clay cap are designed to allow the establishment of a planted grass cover as soon as possible to minimize erosion of the cover material and the side slopes. In addition, the intermediate cover placed on top of and between each cell, beneath the clay layer surrounding the outside perimeter of the landfill, has a high permeability, thereby acting as a drainage layer to direct rainfall and leachate vertically downward to the leachate collection system, as well as to collect runoff so as to retard erosion. Erosion is also retarded, as is the runoff of storm water/leachate over the side slopes of the landfill, by containing storm water which comes into contact with the working face of the landfill cells. This will be accomplished by minimizing the size of the working face to approximately 42 feet width. This will serve to reduce the potential for storm water to contact waste. Additionally, berms will be constructed around the working faces of each active cell which will cause any runoff or storm water which gets inside the working face of the cell to remain there and to percolate through the land fill to eventually be collected as leachate by the collection system. If enough rain falls on the working face of a cell to cause an overflow of storm water over the berms, additional berms placed on the interior slopes of the landfill will catch the overflow and divert it back through the landfill and the leachate collection system. The Applicant contends that normal maintenance equipment and personnel will be able to maintain the exterior side slopes of the landfill and thus minimize erosion. However, if erosion should become a problem, the Applicant proposes to install interceptor berms constructed on the side slopes, accompanied by various geotextural fabrics or synthetic materials proposed to be imbedded on the side slopes to help anchor the interceptor berms. These berms, however, have been demonstrated by Petitioner's witness, Mr. Peavy, to be inadequate to retard erosion. In fact, they may promote erosion because they would be insufficiently anchored to the side slope (as designed with 3:1 slope) and the downhill slope of the berms themselves is considerably steeper than a 3:1 ratio, which will actually promote erosion. The erosion problem will be discussed in further detail infra, but the proposed "optional" berm system, consisting of two proposed berms down the length of the 450 foot side slope will have to be redesigned in order to serve the purpose of retarding side slope erosion. The cap or cover for the exterior side slopes of the landfill will consist of a relatively impermeable clay layer overlain by a sand layer, as well as a top soil layer. Mr. Lithman, an expert in geotechnical engineering testifying for the Applicant, established that as a result of the side slope stability analysis he conducted of the clay layer for the Class I disposal area, that the clay layer would be stable, with a safety factor of 2.9-3, which is more than adequate for a slope as designed for the Class I disposal area (3:1). Mr. Evander Peavy, testifying for the Petitioners and accepted as an expert witness in the fields of civil engineering, soil mechanics, surface water hydrology and hydraulics, agreed that there was an adequate safety factor in the clay cap layer itself and that no plane of failure would likely occur in that layer. The problem, however, lies in the sand layer immediately predetermined or potential plane of failure will occur at the interface between the sand layer and clay layer. This is where the side slope of the landfill is most likely to fail. Failure means that the weight of the sand and soil layers on the outside of the clay layer would exceed the resisting forces, holding them back on the slope of the landfill, which would result in a deformation, slumping or break in the sand layer. If this slumping or break occurs in the sand layer and is not immediately repaired, rain water can erode the clay layer, which is highly erodible if exposed to rainfall. If not redressed soon, this could result in exposure of the waste of the landfill to rain water with the result that leachate could seep out of the side slopes of the landfill and enter surface waters of the State through the functioning of the storm water system. The most likely layers a civil engineer would analyze to determine the stability of the side slope would be the sand and soil layers above the clay layer because they are the weaker layers in terms of adhesion, shearing and resistance to downward movement under stress. However, Mr. Lithman, Trail Ridge's expert who conducted a side-slope stability analysis, only analyzed failure in the clay layer initially, until he was called on rebuttal to address findings of Mr. Peavy. The DER rule provision that allows 3:1 ratio side slopes for the sides of such landfills only serves as a guideline or maximum steepness criteria for design engineers. It does not relieve an engineer from analyzing slope stability in accord with good engineering practices. Analyzing side slope stability must be done in terms of establishing "safety factors." An acceptable safety factor for a landfill is 1.5 because, if failure occurs, solid waste can quickly be uncovered which can cause leachate contamination to surface waters of the State. A safety factor of 1.5 is the commonly accepted factor for earthen dam design because of the risks posed by failure of such slopes or embankments. Mr. Peavy is extensively experienced in the design of earthen dams and similar earth works, including extensive analysis of slope constituents and design for stability under shear forces and other failure-inducing factors, as well as for resistance to erosive forces. He was engaged in such phases of engineering work for approximately 26 years, during which period he designed and oversaw construction of numerous dams, revetments and other earthen embankments and works of many types. Because of this, and because of the commonly accepted engineering methods and calculations he used in analyzing the stability and integrity of the side slopes of the landfill, involving plane of failure analysis and erosion damage analysis, his testimony is credited over that of the other witnesses testifying on the subject matters involving side slope integrity of the landfill. Because of this, a safety factor was established for the side slopes of the landfill, for the sand and soil layers of 1.5. Safety factors of 1.25 are indeed commonly used for highway embankments, but highway embankments are not designed with predetermined or potential planes of failure, such as is involved at this landfill (as presently designed) between the sand-soil layers and the clay layer. Trail Ridge's expert witness in this area, Mr. Lithman, had testified that a safety factor of 1.25 would be adequate because it was typical of DOT earthen embankments for roadways. Mr. Niehoff testified that a 1.3 safety factor was sufficient. In fact, however, Mr. Peavy, testifying for the Petitioners, calculated the safety factor of the side slopes of the landfill to actually be 0.85, using his initial assumption of a weight for a cubic foot of the sand-soil layer of approximately 100 pounds. Mr. Niehoff testifying for Trail Ridge found no basic fault with Mr. Peavy's analysis of the safety factor and alleged that his analysis was done with accepted engineering procedures, but only with use of slightly different assumptions. He testified that if he had used the same assumptions as Mr. Peavy, he would have reached the same conclusions. Mr. Peavy also calculated his safety factor again by employing the same equation used by Trail Ridge's expert, Mr. Lithman, and assumed instead that the unit of sand-soil layers was 125 pounds per cubic foot, as did Mr. Lithman. This assumption coupled with the internal angle of friction of 35 degrees used by Mr. Peavy, which was shown to be a conservative assumption, resulted in a calculated safety factor of 1.05, which is still unacceptable, even under Mr. Lithman's analysis, because Mr. Lithman opined that the safety factor should be 1.25. Using Mr. Peavy's equation, but his own assumptions as to angle of friction and weight per cubic foot of the sand-soil layer, Mr. Niehoff, testifying for the Applicant, calculated a safety factor of 1.3. This safety factor also is unacceptable because it is less than the 1.5 safety factor established as proper by Mr. Peavy's testimony and, indeed, if Mr. Lithman's safety factor of 1.25 could be deemed acceptable, the 1.3 figure would result only in a marginal safety factor at best. The major difference between the safety factor calculations of Mr. Peavy and Mr. Niehoff is that Mr. Peavy assumed that the sand-soil layer above the clay layer would be saturated, while Mr. Niehoff assumed that only 19 inches of the 24 inch sand-soil cover layer would be saturated by rainfall. However, Trail Ridge's own experts, Mr. Lithman and Mr. Niehoff, offered conflicting testimony between themselves on the amount of saturation to be expected. Like Mr. Peavy, Mr. Lithman did his analysis on the basis that the sand-soil layers would be saturated completely, contrary to Mr. Niehoff's subsequent testimony that this would not happen beyond a 19 inch depth in the layer. Mr. Niehoff's conclusions that the sand-soil layer would not become saturated or valid only if there is a complete grass cover over the entire side slopes of the landfill. He admitted that if the sand-soil layer became saturated, the safety factor would only be 1.1 or less according to his own calculations. Trail Ridge offered no preponderant evidence to establish that an adequate grass cover could be established so as to prevent saturation of the sand-soil layer during the design 25-year, 24-hour storm event (approximately 8- 9 inches rainfall in 24 hours). The evidence indicates, rather, that establishing and maintaining a grass cover on the side slopes of the landfill will be very difficult to achieve on a uniform, completely grassed basis. This is because of erosion and because of the damage by equipment necessary to repeatedly repair erosion damage and because of the fact that much of the side slopes of the landfill will be, in effect, under construction until the landfill is completely built out and completed at the end of approximately 20 years. Even if the lower several lifts of the landfill, when covered on the "cover as you go" basis can achieve them, more recently deposited, will not have a complete grass cover. Thus, there is a substantial likelihood of saturation of the sand-soil layer, during storm events of the type for which the landfill is designed. Further, the volume of water that would saturate into the sand-soil layer, even if the landfill was completely grassed, will still be sufficient to totally saturate the lower 90 feet of the landfill side slopes above the clay layer in the event of a 25-year, 24-hour storm event. If the sand-soil layers become saturated, sloughing or failure of those layers will occur at the toe of the landfill. If that occurs, then the clay layer, protective cap can be quickly eroded by subsequent rainfall and surface runoff. This will cause the waste within the landfill to be exposed to rainfall, generating leachate which can migrate to the surface of the landfill and thence to the storm water system and ultimately to the surface waters of the State. No provisions have been made in the design to remove water from the sand-soil layers once it reaches the area near the toe of the landfill to prevent sand-soil layer failure. The impermeability of the clay layer would prevent the rainfall from migrating through the clay layer and continuing to the interior bottom of the landfill to be collected properly as leachate because the clay layer properly should be an impermeable barrier to storm water. Thus, a saturated condition of the sand-soil layers would be most likely to cause their sloughing and failure near the toe of the landfill, with resulting damage by erosion or cracking to the clay layer with the effect of allowing leachate to escape to surface waters of the State. Although the Applicant's expert, Mr. Lithman, opined that side slope stability had not been a problem with the 3:1 ratio slopes at the City's Rosemary Hill Landfill, he admittedly was unaware of the height or length of the side slopes of that landfill. The longer the side slopes and the higher the landfill, the more likely it is that the sand-soil layers will become saturated and fail during design storm events or shortly thereafter, especially as the landfill, in its later years is built both longer and higher toward its final configuration. Further, Mr. Lithman and the Applicant's evidence does not reveal the composition of the side slopes of the Rosemary Hill Landfill, in terms of whether or not the clay and sand-soil layers designed in the proposed landfill are present. Due to the height of the proposed landfill, the lengths of its side slopes and the absence of design features such as terraces and benches, failure of the side slopes, especially in the later years of the landfill's life and, indeed, after closure (closed landfills can generate leachate) is likely to occur, based upon the facts established through Mr. Peavy's testimony. The likely side slope failure is a result of the design flaw and is not a problem which can be cured by normal operation and maintenance activities. Indeed those activities may aggravate the problem through their deleterious effect on the establishment of a uniform, complete grass cover. Because of the height of the proposed landfill, the length and slopes of its sides and the lack of design features such as benches or terraces, it is likely to experience significant side slope erosion due to storm water. The volume of rain water that would accumulate and flow down the sides of the landfill will achieve velocities which would destroy even a well established grass cover, especially in the later years of the landfill's life when the sides have reached significant length and height. Storm water would thus gain sufficient velocity to destroy a grass cover and to particularly attack those portions where the grass cover is incomplete, thinned or possessed of an insufficient root mat to hold the soil. Once erosion starts, small rills will form which will soon develop into deeper gullies, ultimately penetrating the sand-soil layer. It can then quickly erode away the resulting exposed clay cap layer, exposing the waste to storm water. Leachate could thus leak from the landfill. Because of the present design of the Class I landfill, the only way to repair erosion damage is to push material from the bottom with heavy machinery, such as bulldozers. These erosion maintenance activities themselves would prevent the establishment of a uniform solid grass cover. The presently operated East Landfill in Duval County exhibits both side slope failure and erosion damage due to rainfall on its 3:1 slopes, including damage to the grass cover. Erosion damage to the slope layers due to erosion maintenance activities of the type which would be necessary to repair damage at the proposed landfill has occurred. Both erosion and side slope failure will ultimately result in exposure of solid waste to rainfall runoff and assure side slope seepage of leachate. The material eroded or sloughed away from the side slopes can obstruct the drainage conveyance system surrounding the landfill, rendering the MSSW/storm water system inoperative. Because of the presently proposed design of the landfill, it would be impossible to effectively correct side slope erosion or failure, due especially to maintenance activities. Even if a uniform grass cover could be established in the last years of landfill operation and after closure, the great length and slope of sides of the landfill by that time would result in erosion even if the grass cover were initially uniform and solid on the entire slope of the landfill. A change in the design of the landfill, however, whereby 15 foot wide benches or terraces would be incorporated into the sides of the landfill every 20 or so vertical feet, would likely prevent the side slope erosion and failure established to be likely by Mr. Peavy. In fact, benches or terraces similar to those found to be required by Mr. Peavy have had to be recently installed at the East Landfill in Duval County in order to resolve side slope erosion and failure problems on those 3:1 slopes. The mere installation of interceptor berms, as depicted in TRL Exhibit 28, would not alleviate side slope failure and erosion problems, but rather would aggravate them and would reduce the safety factor of the side slopes to 0.5. Consequently, in order to grant the permit, it should be conditioned on the landfill being re-designed and constructed so as to incorporate benches or terraces at approximately 20 foot intervals on the slope of the landfill from bottom to top. Although this may potentially reduce the volume of space within the landfill, depending on how it is accomplished, it has been established that, without the use of the bench or terrace system, pollutant leachate cannot be reasonably assured to be prevented from entering State waters and wetlands. Leachate Control Leachate is any water coming in contact with solid waste. The chemical constituents of leachate which are present and will be present in the Duval County solid waste stream, to be disposed of at the proposed landfill, include chlorobenzene, volatile organics of various types, benzene, acetone, phenolic compounds, gasoline constituents, chloroform, methylethylketone, methylene chloride, toluene, xylene, ethylbenzene, total organic carbon, nitrogen, phosphorus and metals such as aluminum, chromium and zinc. Leachate thus contains toxic, hazardous and priority pollutants which will be disposed of in the landfill. The breakdown and degradation of solid waste can also generate additional toxic or hazardous compounds and substances. Leachate can potentially be discharged in a proposed landfill into groundwater and surface waters in a number of ways, including leakage from the bottom of the landfill liner into groundwaters, including into the Class I storm water pond and surface waters of the State through discharge from the groundwater into the storm water pond system. It could also be deposited into the storm water system through spillage of leachate where tanker trucks are loaded, through seepage of leachate through the side slopes of the proposed landfill by damage to the integrity of those side slopes as found above. The Petitioners maintain that side slope seepage of leachate will occur because the permeability of the intermediate cover layers surrounding the cells of the landfill is significantly less than the permeability of solid waste. This will have the result, according to Petitioners, that leachate will migrate horizontally through the intermediate cover layers to the sides of the landfill. Once there it arguably would migrate to the surface of the landfill side slopes through erosion of the outer cover, and fissures in the clay due to drying from exposure to the sun and through erosion. Additionally, the Petitioners maintain that leachate will migrate downward through the peripheral intermediate cover layer under the clay and contact the impermeable clay anchor cap, build up hydraulic head pressure and thus seep out through landfill sides near the toe of the landfill. The Petitioners maintain that Trail Ridge's policy and proposal to punch holes in the intermediate cover layers atop the cells of the landfill to encourage downward migration of leachate and discourage horizontal migration of leachate through the intermediate cover layers will be ineffective because the intermediate cover is more permeable than the solid waste itself so that punching holes in the intermediate cover to allow the leachate to migrate down through solid waste will actually not occur. Additionally the Petitioners contend that the filter system and the storm water pond will not treat the dissolved chemical components of the leachate specified in Petitioner's Exhibit 2 and that these dissolved components will move through the sand filters into waters of the State. Contrary to Petitioner's contentions, however, the Applicant has demonstrated that leachate will not avoid capture by the leachate collection system by seeping horizontally through the cover or cap and out the sides of the landfill, provided that the side slope failure and erosion prevention measures found to be necessary in the above Findings of Fact are instituted in the design, construction and operation of the landfill. The design of the cap and closure system is basically a side slope seepage prevention system, except for the absence of terraces or benches. The intermediate soil cover beneath the clay cap and surrounding each cell of the landfill acts as a drainage medium. It will channel any seepage of leachate from the cells of solid waste through the permeable, intermediate soil cover, generally in a downward direction, both in and between the cells of the landfill throughout its cross-section, as well as downward through the intermediate soil cover lining immediately beneath the clay cap around the periphery of the landfill. This system, if the above design deficiency is corrected, will tend to force the leachate downward into the collection system, as opposed to horizontally out the cover or the sides of the landfill. The reason this system will work in this manner is because the intermediate cover soil is more permeable than the solid waste itself. The permeability of the intermediate cover will promote vertical movement of the leachate because, as the leachate migrates across each cell, it will encounter the vertical, intermediate soil cover layer at the side of each cell and that will promote its moving downward toward the collection system. The water in the landfill will thus follow the path of least resistance, so that the vertical portions of the intermediate cover layers surrounding each cell and surrounding the sides of the landfill beneath the clay cap, coupled with the force of gravity, will provide a preferential path downward toward the leachate collection system. This finding includes consideration of the Petitioners' contention that leachate will migrate downward and contact the impermeable clay anchor cap and build up head pressure so that it will seep out of the sides at the toe of the landfill. The intermediate cover layer underlying the sides of the landfill beneath the clay anchor cap is connected with the leachate collection system underlying the bottom of the landfill. Thus, a continuous conduction of leachate down through the intermediate cover, permeable layer will allow the leachate to seep downward all the way to the leachate collection system rather than pooling behind the impermeable clay anchor cap. This condition will be enhanced by the fact that surrounding each cell is the approximately vertical, permeable intermediate cover layer, throughout the entire cross-section of the landfill, such that much of the leachate will migrate downward in the interior of the landfill. Because of the ready conductance of leachate in a downward direction by the intermediate cover layers, Trail Ridge's policy of punching holes in the intermediate cover layer on the top of each cell in order to seek to prevent side slope seepage of leachate will be ineffective because the intermediate cover is more permeable than the solid waste. Thus, this procedure is unnecessary and, in fact, could become counter-productive to the extent that punching holes in the intermediate cover would allow rain water mixed with leachate to contact more of the solid waste contents of the landfill as it migrates down through the interior of each solid waste cell. This would result in a more highly concentrated form of leachate, which could pose more deleterious threats to ground and surface waters should it escape to ground and surface waters. Therefore, any grant of the permit should be conditioned on a prohibition of the Applicant thus violating the integrity of the intermediate cover layer overlying each cell as the landfill is built up in lifts. Gas Control System The Class I disposal area is designed with a gas control system which will prevent explosions and fires caused by the accumulation of methane gas due to decomposition of the waste in the landfill. The gas control system will prevent damage to the vegetation on the final cover of the closed portions of the landfill or vegetation beyond the perimeter of the property. It will prevent objectionable odors off site. The Petitioners have stipulated that the Applicants' gas control system will be designed in accordance with Rule 17- 701.050(5)(j), Florida Administrative Code. Although the Petitioners presented testimony of various persons who live in close proximity to other landfills, which were at one time operated by Waste Management subsidiary companies, neither the persons who testified of odor problems at those landfills, nor other witnesses presented testimony to show whether any of the landfills utilized a gas control system or one of equivalent design to that proposed for the subject facility. No evidence was presented to support a finding that the proposed landfill facility would produce objectionable odors to any significant degree. The Petitioners have further stipulated that the Class III disposal area is exempt from the gas control system requirements set forth in Rule 17- 701.050(5)(i) and (j) and (6)(i), Florida Administrative Code, and the Department agrees. Hydrogeology and Ground Water Monitoring The Applicant filed as part of its application, and placed in evidence, a hydrogeological survey and groundwater monitoring plan, contained in TRL Exhibit 51. The hydrology of the proposed landfill site may fairly be characterized as complex because it contains many different features such as recharge and discharge areas, varying zones of conductivity, a sand component to the surficial aquifer as well as a rock aquifer component and multi-directional groundwater flows. Additionally, wetland systems occur down-gradient from the higher levels of the surficial aquifer on the north, east and south sides of the proposed Class I disposal area. From the surface grade down to a depth of approximately 100 feet lies the surficial aquifer, which primarily consists of a coarse sand medium. Lying below the sand aquifer is a confining unit (relatively impermeable) identified as the Hawthorn Group, which consists of denser marls, dolomites and silver clays. Beneath the Hawthorn layer, at a depth of approximately 300-400 feet, is the Floridan aquifer, which serves as the principal deep water supply source for this part of Florida. Additionally, immediately above the Hawthorn layer in the deep zone of the surficial aquifer, a "rock aquifer" exists under a portion of the landfill site, generally the eastern-most portion. It was not shown to be continuous throughout the site. The rock aquifer is connected to the sand surficial aquifer lying above it. Zones of varying higher and lower permeability occur at various places within the surficial aquifer. Generally, groundwater at the site flows down-gradient in an easterly direction, caused by rain or surface water recharging the surficial aquifer on the higher portions of Trail Ridge, including the western side of the landfill Class I disposal site. The surficial aquifer then discharges this groundwater to the land surface and the wetlands lying on the eastern side of the site. Additionally, some northward and southward flow of groundwater occurs from recharge areas to the wetlands lying on the northerly and southerly boundaries of the Class I disposal site in the wetlands. The specific condition 19 contained in the Department's Notice of Intent to issue permit and draft permit requires the Applicant to periodically (quarterly) sample monitoring wells to ensure that water quality standards are not exceeded at the boundary of a zone of discharge established by that specific condition and authorized by Rule 17-28.700(4)(a), Florida Administrative Code. A groundwater monitoring plan has been developed by the Applicant, with accompanying hydrogeological survey as mandated by Rule 17-28.700, Florida Administrative Code. The proposed groundwater monitoring system consists of 42 monitoring wells in and around the area of the proposed Class I and Class III landfill sites. The system is designed to monitor upgradient and downgradient flows in wells constructed to sample from the shallow and intermediate zone and from the deep zone (to some extent) on the east boundary of the Class I disposal site. Specific condition number 18 of the Notice of Intent to grant the permit and draft permit, to which the Applicant has agreed, requires that a detailed chemical characterization of a representative sample of leachate be performed, so as to allow for any necessary modifications to the list of chemical substances to be analyzed in water samples drawn from the monitoring wells on a quarterly basis. Although there are up-gradient monitoring wells for the shallow and intermediate portions of the surficial aquifer, there are no upgradient monitoring wells for the deep zone of the surficial aquifer. There are no upgradient monitoring wells on the west side of the landfill in the deep zone. The deep zone of the surficial aquifer is the zone between the intermediate zone and the top of the Hawthorn confining bed. The rock aquifer is present beneath the proposed landfill site and was encountered at well locations B-7, B-8, B-12 and B-14. That rock aquifer is hydrologically connected to and part of the deep zone, which is hydrogeologically connected throughout the site to the uppermost portions of the surficial aquifer lying beneath the landfill. The rock aquifer is a significant source of drinking water in Duval County and the surrounding northeast Florida area and is used as a supply source for domestic and commercial wells within one and one-half miles of the landfill Class I site. "Sinkers" are immiscible liquids contained in landfill leachate that are denser than water. When released from the landfill they would sink to the first low permeability unit in the surficial aquifer. This would be at the bottom of the surficial aquifer at the rock unit. Once they encountered a lower permeability unit or strata, sinkers would then move in a more lateral direction downgradient in undetermined directions. The silty clay layer depicted on Figure 9 of TRL Exhibit 51 would intercept those sinkers and cause them to tend to move in a direction toward the silty clay layer intercepted by well B-1. At that point the sinkers would then have a tendency to move in a north or south direction on top of the confining zone. The direction those sinkers would move, following a gradient, cannot be determined at present from the groundwater monitoring plan because no deep wells are proposed in either of those areas which could detect sinkers. The groundwater monitoring plan is thus not adequate for the deep zone or to detect pollutants that could migrate off site in the rock aquifer because there are no monitoring wells in the deep zone on the west, north and south sides of the Class I landfill area. Monitoring for sinker compounds in the deep zones is thus insufficient and water supply wells nearby in the deep zone would be at risk because there is no way to detect pollutants between those water supply wells and the source of the pollutants at the landfill. The groundwater monitoring plan is inadequate because there is insufficient information to determine the direction of water flow in the deep zone. Sufficient upgradient monitoring wells in the deep zone are necessary in order to determine the direction of water flow in the deep zone which will in turn indicate where additional deep zone monitoring wells should be located to detect contaminants migrating off site. Leachates also contain contaminant constituents or compounds called "floaters." Floaters are immiscible liquids which are lighter or less dense than water. They tend to float on top of the groundwater table. The hydrologic information depicted with the application and the Applicant's evidence is not sufficient to determine where floaters might migrate. The shallow monitoring wells referenced in TRL Exhibit 42 would not adequately detect floaters at or near the water table surface. Due to the lower lying stream or wetland systems on the north and south side of the Class I landfill on Trail Ridge, groundwater flows in the vicinity of those areas are likely moving northward and southward to some extent. Thus, TRL Exhibit 51, and particularly Figure 14 of that exhibit, is insufficient to support a determination of where monitoring wells should be located because it does not include the impact of the stream or wetland systems on the north and south sides of the landfill. Groundwater contours bend into the stream areas on the north and south sides of the landfill which would indicate groundwater flow to the south and the north instead of just from west to east. The general shape of these contour lines would resemble the contour lines depicted in Figure 16 of TRL Exhibit 51. These contour lines bend back to the east and the west on the north and south sides of the Class I landfill. Since there is groundwater flow to the north and to the south from the Class I landfill, intermediate and deep monitoring wells in addition to shallow wells, should be located along the west, north and south sides of the landfill. Because they are not in the groundwater monitoring plan thus far, the plan is inadequate. A grant of the permits should be conditioned on such additional wells being installed and made a part of the monitoring program, in accordance with the above findings. A zone of discharge for the proposed landfill has been established pursuant to Rule 17-28.700(4)(a)2., Florida Administrative Code, which is intended to extend vertically from the base of the surficial aquifer and horizontally 100 feet beyond the footprint of the landfill or to the compliance groundwater monitoring wells, whichever is less. (See pages 611- 618 of the transcript.) Therefore, even if the groundwater monitoring wells are closer than 100 feet to the footprint of the landfill, they are to be used for monitoring for compliance with applicable water quality standards, including the primary and secondary drinking water standards for G-II groundwater, as contained in Rules 17-550.310 and 17-550.320, Florida Administrative Code. The Applicant has agreed to this location of the wells, their spatial relationship to the footprint of the landfill, to the zone of discharge and to their use for compliance purposes. Storm Water and Surface Water Management System The Applicant proposes as part of its permit application a storm water discharge and surface water management system. The application for permitting for that system was submitted to the DER which reviewed it using the Water Management District's permitting criteria set forth in Chapters 40C-4 and 40C- 42, Florida Administrative Code. Pursuant to its independent permitting authority set forth in Section 373.413, Florida Statutes, the DER noticed its intent to issue the MSSW permit to the Applicant, based upon its opinion that the project will comply with applicable rules. The proposed storm water discharge/surface water management system (MSSW system) will utilize roadside swales, perimeter ditches, catch basins, culverts, detention ponds and pump stations to manage storm water in compliance with Chapters 17-25, 40C-4 and 40C-42, Florida Administrative Code. The solid waste disposal areas will operate as watersheds, routing storm water in to the MSSW system. The retention areas have been designed to handle the retention treatment requirements of a 25-year, 24-hour "design storm" runoff, resulting from approximately eight to nine inches of rainfall. The system is comprised of three independent parts; the Class I landfill system, the Class III landfill system and the separate roadway surface water management system. The Class I system will use temporary berms to intercept storm water runoff from the cap cover system of the landfill, on top of the solid waste disposal area. These top berms will divert the storm water runoff to regularly spaced pipes which will convey the storm water into the perimeter swale located at the foot of the landfill side slopes. The runoff will then be diverted through a culvert into a concrete-lined perimeter ditch which will convey it to the pond. The top berms of the landfill also operate as erosion control features, capturing and channelling some storm water runoff away from the side slopes of the landfill, thereby assisting in erosion control. The Class I retention pond covers an area of approximately ten acres and will contain approximately 43 million gallons of water at design water levels. The peak flow of storm water runoff from a design 25-year, 24-hour storm can be accumulated and released at predetermined rates. The runoff from the first one inch of rainfall in a 72 hour period is retained and stored in the pond. No discharge will be allowed to the pond's outfall system, rather all the outfall from the runoff from the first inch of rainfall will be routed through the sand filter system prior to discharge. When storm water runoff enters the pond, it will mix with the water already in the pond and become part of the total water column. When a rainfall event then produces greater than one inch of rainfall, some water will have to be discharged from the pond by passing it through the sand filter and then discharging through the outfall structure. The water discharged is water which was already resident in the pond before the rainfall event, mixed with the current rainfall runoff from that hypothetical rainfall event. The volume of the pond is so large that storm water runoff will constitute a very small fraction of the actual water volume in the pond at any given time. On the average, it will take 33 days for a given molecule of storm water runoff to travel through the pond, the sand filter and then be discharged through the outfall system. the sand filter system operates on a water level trigger device involving floats in wet wells attached to electrical switching mechanisms. When a certain water elevation in the wet wells, reflective of the elevation in the pond, is reached, the pumps automatically start and pump water into the filter chambers, causing the water to flow over a filtering sand. The filter will be maintained periodically by lowering of the water level to permit removal and replacement of the top six inches of sand in the filter. The Class III storm water pond is similar in design to the Class I pond except that it will not use a top berm. Rather, a perimeter swale will function similarly to the Class I landfill top berm, intercepting storm water runoff from the top and side slopes of the Class III landfill. The Class III storm water pond is equipped with the same type of filtration and pumping system as the Class I pond. The Class III system is designed also to retain the first inch of storm water runoff from a "design storm" rainfall in a 72 hour period. All of that runoff from the first inch of rainfall will likewise be routed through sand filtering prior to discharge. The roadway storm water system utilizes grassed roadside swales to act as a retention structure to filter the storm water runoff. The runoff retained in the swales will be conveyed by pipe to a smaller detention and dispersion pond located between the Class I and Class III disposal areas and built with the same design constraints as the Class I pond. The roadway system will not use a pumping system to operate, but rather discharge will occur through natural action of gravity through the dispersion pond. The filtered storm water runoff from the Class I and Class III disposal areas will be discharged into adjacent wetlands after it leaves the ponds. The discharge will be performed by a wetland irrigation system. The irrigation system will discharge the filtered storm water through conveyance pipes to the wetland boundaries. There a series of perforated pipes will extend outward from the conveyance pipes themselves and serve as a means of gradually releasing the filtered storm water into the wet land area as a means of wetland replenishment and mitigation. Concerning the issue of surface water quality, it has been established that the sand filtering systems on the Class I and Class III storm water ponds are capable of providing 100 percent of the treatment required by State water quality standards when considered in conjunction with the treatment capability of the ponds themselves as natural lake systems. The individual sand filters each provide twice the capacity for treatment necessary which equates to a safety factor of 2. With both filters operating, there is a combined safety factor of 4. Although the Class I and Class III retention ponds are designed with filtration systems, the primary pollution removal system will be the ponds themselves operating as natural lakes. Once storm water enters the ponds, the average residence time is adequate to allow the biological processes of uptake and assimilation to function to remove the bulk of the pollutants, including those derived from any spillage of leachate into the storm water management system and ultimately deposited into the ponds. The volatile organic compounds which can occur in the leachate can largely be removed simply by the process of evaporation, due to the adequate retention time of any leachate- containing storm water which reaches the ponds. It has been established that, due to the storm water pond's natural treatment mechanisms, especially the long retention time, the size and volume of the ponds, as well as the vegetated sides of the ponds, that, considering also the operation of the filter system, the water discharging from the Class I and Class III storm water treatment facility will have very low concentrations of total nitrogen, phosphorous, biochemical oxygen demand (BOD), suspended solids and heavy metals. The Applicant's expert witness on water quality and water chemistry, Dr. Harper, also assumed that the Class I retention pond would have some leachate migration into the pond through groundwater influx. Worst case scenarios were used to estimate this possible influx and the results established a maximum deposition of 2.46 gallons of leachate into the pond over a 65 day period. This amount would be diluted by a factor of 14 million solely by new storm water runoff and rain normally expected under average rainfall conditions during such a 65 day period, without even considering the considerable dilution by the existing water volume of approximately 43 million gallons already in the pond in such a period. Dr. Harper's testimony is accepted. It is unlikely that any runoff can enter the retention pond on one day and then exit within one day's time through the outfall overflow device. Even assuming that runoff occurs in excess of the designed one inch, that runoff would dilute with the large volume of water already present in the storm water pond. Thus, the new storm water would be mixed, diluted and subject to natural biological processes and the process of evaporation (of volatile organic compounds), operative in the pond before it can be released through the outfall structure. The runoff will enter the pond at the west end and discharge through the opposite or east end of the pond. The majority of water caused to be discharged through the outfall because of a larger-than-design storm event runoff would thus actually be water already present in the pond as opposed to incoming runoff from the recent rain event being deposited in the west end of the pond where the storm water system discharges from the Class I disposal area. Even a rainfall event producing twice the designed-for volume would produce no effect on the water quality of the discharge. Further, along with the filter systems and the natural processes of biological uptake, assimilation as well as evaporation in the natural lake system which would operate in the pond, the side slopes of both ponds will be vegetated so as to further assist in uptake and removal of any pollutants present in the runoff, further mitigating any potential for water quality impacts. It has been established that the surface water management system is designed to segregate surface water from leachate by minimizing the size of the landfill working face and reducing the potential for storm water to contact waste and become leachate. Further, a berm will be constructed around each working face which will encompass the entire active cell of the landfill, causing any runoff water entering the working face to remain there and percolate through the landfill to the leachate collection system, rather than entering the storm water system. If a severe rainfall event could cause leachate to overflow those berms, the design includes additional berms on the interior slopes of the landfill to catch that overflow and divert it back through the leachate collection system. The berms are relocated as the working face of the landfill changes, so they will continue to fulfill these functions on an ongoing basis. In terms of a worst case event, the Applicant has also established that the estimated impact of runoff from approximately one acre of exposed solid waste entering the retention pond would still cause no water quality impacts. Further assurance of leachate segregation from surface waters is provided in a spillage control plan which would be activated in the event of leachate spillage from a tanker truck. In connection with this, any grant of the permit should be conditioned upon an adequate berm system surrounding the tank truck leachate filling device in order to contain any such spill to prevent the leachate from entering the storm water retention facilities and surface waters. Such a system should also be characterized by (and the permit conditioned upon) retention berms or other forms of containment being placed around each leachate storage tank, designed to retain the full capacity of such a leachate storage tank in the event of a catastrophic tank valve, piping or other failure. It has been demonstrated, moreover, that if the leachate-storm water separation and control system were to fail in some way so that leachate directly entered the retention pond, the volume of leachate entering the pond would have to exceed approximately 150,000 gallons to cause any water quality violation in the storm water retention pond, even assuming the high concentration of contaminants in the leachate envisioned in the opinion of Dr. Robert Livingston, the Petitioners' aquatic ecologist and toxicologist. He raised concerns that pollution of the head water systems of the St. Johns and St. Mary's Rivers might result from the operation of the project. The Applicant has rebutted the concerns expressed by Dr. Livingston and Dr. Parks and established reasonable assurances that toxins and contaminants occurring in leachate will not deposit in surface waters of the State in any significant or rule-violative amounts for the reasons expressed in the above Findings of Fact. Draw-Down Effects The Petitioners contend that there will be a draw-down of groundwater levels in surrounding wetlands caused by these storm water ponds and associated pumping, in violation of the Water Management District's rules and policy embodied in MSSW Handbook Section 10.6.3. This section presumes an adverse impact on wetlands will result if the system causes the groundwater table to be lowered more than five feet lower than the average dry season low water table. The Petitioners' expert in this area, Dr. Motz, estimated that a measurable draw-down of groundwater of one to two feet in the wetlands water table would extend outward as far as maybe 1,000 feet in all directions from each of the storm water ponds. Dr. Motz used a large error convergence factor in his calculations, however, and also used a model for a confined aquifer, which was not shown to exist at the subject site. He did not use a model which should be appropriate for unconfined or semiconfined aquifers which the evidence reveals is the more appropriate hydrogeology which would be employed in groundwater modeling for the subject site. Dr. Motz' use of a large error convergence factor can potentially result in an answer which is far from the actual appropriate draw-down figure. Numerical models are approximations of reality and the smaller the error convergence factor, then the closer to the real number of the cone of depression, or draw-down level, the model will give. Consequently, the use of an analytical groundwater, cone of depression model was shown by the Applicants' witnesses to give a more accurate result, especially in view of the large error convergence factor employed by Dr. Motz in his numerical model. It was not shown that Dr. Motz had actually "calibrated" the groundwater model he employed. The Applicants' hydrogeology expert, Don Miller, used three analytical and two empirical methods to determine radius of influence or draw-down from the storm water ponds and calibrated the models he used. Validating the data or calibrating the model is a way of making sure the model actually represents the situation intended. Calibration is performed in this instance by inputting some data and then seeing if the model itself could accurately predict the remainder of the data of interest. Using these various methods, Dr. Miller arrived at a range of radius of influence likely to occur from the Class I storm water pond of 167 feet to 184 feet at the western end of the pond and approximately 40 feet at the eastern end. The maximum radius of influence for the Class III storm water pond was shown to be approximately 160 feet at the western end and 0 at the northeastern corner. The other hydrogeology expert for the Applicant, Dr. Leve, performed a separate analytical analysis of draw-down using the Southwest Florida Water Management District's "KOCH" model to produce a projected radius of influence of approximately 167 feet, which is comparable to the projections of Dr. Miller. In conjunction with this, it was shown that Dr. Motz' use of a small value for groundwater infiltration and the large error convergence factor served to increase his predicted radius of influence in an inaccurate way. Dr. Motz also used a higher value for transmissivity or hydraulic conductivity ("K"). The Applicant's experts relied on the average of the actual permeability test results obtained for the site. A different figure for transmissivity or hydraulic conductivity results from Dr. Motz taking into account two test wells in which hydraulic conductivity could not be measured because the well water level rose too quickly to obtain a measurement. Consequently, he predicted or assumed that that factor might affect the hydraulic conductivity at the site by a whole order of magnitude, which resulted in his 1,000 foot prediction for draw-down cone of influence. The problem here is that the evidence does not demonstrate clearly that this much- greater hydraulic conductivity factor with regard to these two wells, which was an isolated incident compared to all other wells tested, is not some mechanical or human error in the installation or evaluation of the wells. Further, even if one predicts the hydraulic conductivity of the unmeasured, apparently highly conductive wells at the geometric mean of all the hydraulic conductivity measurements for the water table zone (except for the marl zone) at 3.0 X 10 cm/sec or three times greater than the value used by the Applicant, it would result in a cone of influence of 265 feet instead of 184 feet. If one also assumed a value for the two ignored wells, as data points, by assuming that they had a hydraulic conductivity value of 3.5 x 10/-3 cm/sec, the highest reported well conductivity value, and then employed that in the empirical formula used by Donald Miller, it would still not greatly exceed the 265 foot cone of depression number. No evidence was adduced to demonstrate that a cone of depression of that magnitude would have any adverse affect on the wetlands, especially in view of the recharging of the wetlands through the storm water pumping and irrigation system. In summary, the totality of the evidence in the Applicant's case, especially on rebuttal, demonstrates that Dr. Motz' methodology significantly overestimated the radius of influence for draw-down at both storm water ponds. The parties agree that the maximum draw-down of 16 feet would occur within the Class I storm water pond, where a "seepage face" would be formed where the pond would cut into the water table through earth borrowing activities. The maximum draw-down inside the Class III storm water pond, where a seepage face would be formed by the excavation into the water table to construct the pond, will be 14 feet. The lowered groundwater within the storm water ponds is due in part to the natural sloping land surface of that area and the concurrent natural slope of the water level before the ponds are even excavated. The slope of draw-down will decrease rapidly, that is, much of the 14 foot or 16 foot apparent draw-down amount will be the result of the relatively sheer seepage face formed by the pond excavation. At the top of that seepage face, the groundwater cone of depression will flatten out considerably and very rapidly so that, as the slope of the draw-down decreases rapidly in the immediate vicinity of the pond, the groundwater outside the ponds themselves will actually be lowered less than five feet. The groundwater levels used in the application were based upon seasonal high water level for the site, rather than "average dry season low" water levels, as referenced in Section 10.6.3 of the Water Management District's Applicant's handbook. Therefore, the projected draw-downs are very conservative and would overestimate the actual draw-down for dry season low water table groundwater levels. Consequently, the weight of the evidence supports the Applicant's predictions on the effects of draw-down. The evidence demonstrates that draw-down from the storm water ponds associated with both landfills will have either no impact or minimal impact on wetland species, either transitional or submerged, in the surrounding wetlands. Silvi-culture activities on the site have considerably altered the area and lowered the natural water table through the construction of drainage structures by the timber company in the past. In general, the wetland jurisdictional lines from the storm water ponds are based on United States Army Corps of Engineers (Corps) wetland criteria and thus do not contain species generally considered to be wetland species for purposes of DER dredge and fill or Water Management District MSSW jurisdictional purposes. Many species used by the Corps in determining jurisdiction, such as slash pine, can grow both in uplands or wetlands. The edges of the areas delineated as jurisdictional wetlands are dominated by transitional and upland plant species such as slash pine, gallberry, palmetto, grapevine and huckleberry, which can tolerate dry conditions. It is only as one's investigation proceeds waterward or toward the center of the delineated wetlands, (in which area the land surface slopes down- gradient at the same area where the draw-down cone of influence rapidly diminishes to an insignificant level), that the plant species change to those species adapted to regular and periodic inundation for purposes of the State agencies' wetlands jurisdiction. The draw-down maximum for any wetland location using the maximum projected radius from Dr. Miller's efforts of 184 feet, (17 feet beyond the projection based upon the Water Management District's model), is on the southwest edge of the Class I pond. Maximum draw-down there will be 24' inches at the wetland boundary line, that is, the Corps jurisdictional boundary line where the dominant plant species are transitional or upland plants such as slash pine, gallberry and bay trees. Pine trees at this point exhibit tall and vigorous growth which indicates that the water table, before installation of the ponds, is already well below the surface, otherwise these upland trees would lack sufficient oxygen to grow if water levels were closer to the surface. The potential draw-down here would thus have little effect on this vegetation. There will be essentially no draw-down effect further down-gradient beyond the DER Water Management District jurisdictional boundary, where the pines are already of diminished stature because of water existing close to the land's surface and where DER wetland jurisdictionally-listed plants predominate. The draw-down at the wetland boundary line on the southeastern part of the Class I pond will be 9 2/3 inches. Wetland species which could be affected are found 50-60 feet beyond that radius of influence at this point. The radius of influence on the northern side of the Class I pond will not cross any wetland boundary until it widens at the northwestern corner. The maximum draw-down at the wet land line near the northwestern corner of the pond would be approximately 15 1/2 inches. Here again the predominant plant species are the upland species of slash pine and gallberry and thus the draw-down will have little effect on those species for reasons mentioned above. On the western edge of the Class III pond is an isolated wetland for purposes of the Water Management District MSSW and Corps jurisdiction only. The edge of that wetland is dominated by slash pine and gallberry. The estimated draw-down on the boundary line of that land in the area dominated by slash pine and gallberry is six inches. There will be no draw-down from that Class III borrow pond area in any wetland dominated by transitional or submerged species. In addition to the above considerations and factual findings concerning the effect of the draw-down, the Applicant is proposing an irrigation systems as delineated above, which will deliver water to the wetlands to mitigate and replenish any minimal impacts of groundwater draw-down. The irrigation system will increase the degree and duration of saturation of the soils at the wetlands' boundary. This will mitigate any minimal effect of draw- down and may actually have the effect of enhancing the health and quality of the wetlands over time, from the wetlands' boundary waterward. In order that the irrigation system will pose the maximum benefit and most closely imitate the natural systems, the irrigation system will be designed for flexible operation. A wetlands ecologist will review the wetlands quarterly and adjust the irrigation system as necessary, as to location and operational regime, in order to properly maintain the health, including water levels and hydro-periods in the wetlands. The Applicant has agreed that the grant of the permit be conditioned to allow for this ongoing quarterly investigation and adjustment. Dr. Motz indicated in his testimony his belief that, to a large extent, the water pumped to the wetlands through the irrigation system would simply immediately migrate to the groundwater and immediately back to the storm water pond, through the effects of the draw-down, and not serve the purpose of replenishing the wetlands. He admitted, however, that he did not know whether the proposed irrigation system would work or not. The Applicant's expert witness in this regard, Dr. Leve, established that the irrigation system would effectively distribute water into the wetlands and saturate the surface due to the "mound effect" of water at the irrigation systems' discharge point at the wetland boundary. He used a standard, generally-accepted "mounding model" to predict the effects of the mounding for the irrigation system. Mounding is a hydrogeological phenomenon whereby water will mound up and create a zone of saturation in the soil at the point of discharge to the ground surface. Mr. Leve ran that model for a cross-section of each of the storm water pumps. He also ran the model for two different values of groundwater inputs into the ponds. A figure of 28,800 gallons of groundwater infiltration into the pond per day, as predicted by the Applicant's expert witnesses, and the 100,000 gallon per day groundwater input predicted by Dr. Motz was used. For both cross- section locations examined by Dr. Leve, the discharge of 28,000 gallons per day at the wetland boundary would raise groundwater levels by approximately three inches. The discharge of 100,000 gallons per day at the same locations through the irrigation system would increase water levels by approximately nine inches. These calculations ware based upon the discharge of the groundwater inputs into the storm water pond only. Discharge additionally of the inputs from storm water runoff from the surface of the landfill into the pond and then through the irrigation system would also be delivered into the wetlands as warranted. Additionally, a berm system will prevent surface water runoff from entering the north dirt borrow area. A berm will be constructed at the eastern boundary of the north borrow area to maintain an interior water elevation of 125 feet or one foot above the natural ground, whichever is higher. Water levels will thus be maintained at the north borrow area so that there will be no lowering or de-watering of the groundwater table. Additionally, storm water will be diverted by berms along the west end of both the Class I and Class III landfills upgradient and into the wetlands, so that the adjoining wetlands receive significant surface water recharge that previously did not flow into those wetlands. Mitigation A mitigation plan was proposed for purposes of both the dredge and fill permit application and, in the solid waste landfill application, for the MSSW permitting. It was incorporated into the draft dredge and fill permit and draft landfill permit incorporated in the Department's Notice of Intent to issue. The mitigation plan and other measures will offset the impacts from filling and other activities caused by the project in both the dredge and fill and MSSW jurisdictional wetlands on the site. The proposed mitigation measures include the creation of 4.76 acres of new wetlands; the irrigation of the wetlands surrounding the Class I and Class III storm water ponds, as delineated above, and the diversion of surface water around the landfills into the wetlands to aid in their recharge. A high quality, forested wetland will be created utilizing the reliable method of mulching and, an extensive hardwood planting program which will include red maple, sweetgum, cypress and tupelo trees. The created wetland will contain deep water and transitional zones. The area will be monitored to insure 80 percent survival of the trees planted and routine maintenance will be performed. Approval of this mitigation plan and any issuance of the permits should include the requirement that rapid replanting be done to replace any dead trees and such approval should also be conditioned on the use of the largest trees possible to be planted, by appropriate tree planting equipment, so that the beneficial uptake and filtering functions, as well as wildlife habitat functions of such hardwood wetlands can begin operating as a mitigatory factor as soon as possible. The created wetland area will replace lost wetlands with a wetland type of higher quality and potentially higher habitat function, depending upon the maturity of the trees planted (see above condition). The wetland replacement ratio attendant to the creation of this wetland area is proposed to be 2.8:1 and the permit should be conditioned on at least that ratio being observed in the mitigation wetland installation plan. Although there was some testimony critical of the wetland creation proposal because it would alter 4.76 acres of uplands which might be of significance to the wildlife in the area, in fact the site of the mitigation area is currently pine plantation which has been greatly altered from its natural state. It does not currently provide high quality upland wildlife habitat. Additionally, only 30-40 percent of the uplands on the entire tract will be altered by the entire project construction proposed. This leaves a majority of the uplands presently on the site in their current condition to the extent that it serves as wildlife habitat at the present time. A conversion of the subject area into a high quality hardwood forest wetland, which would remain bordered by upland on one side in any event, will not have any significant impact on the present value of the mitigation areas as habitat. Wetlands Assessment and Impacts Through the use of consultant personnel skilled in the fields of surveying, biology and botany, the Applicant established jurisdictional lines demarcating the boundaries of DER jurisdiction for dredge and fill permitting purposes and MSSW permitting purposes in the field and adduced evidence of those boundaries at the hearing. The jurisdictional lines established were conservative in the sense that they reflect the jurisdictional standards of the U.S. Army Corps of Engineers, which is generally landward of the lines which would be established by the plant communities characteristic of DER dredge and fill and Water Management District MSSW jurisdiction. The locations of the flags as placed by the biology-botany consultant were then professionally surveyed and plotted by a trained surveyor such that the jurisdictional line was signed and sealed as a "specific purpose of survey." Further, a biologist met with the surveyors weekly to review the plotted line to ensure accuracy. That survey was submitted to the Department in connection with the applications herein. The Department supports that jurisdictional determination in this proceeding. The Department's own jurisdictional determination staff members were on the sites of the jurisdictional determinations for approximately eight days. The location of the wetland jurisdictional line for purposes of MSSW permitting has not been challenged by Petitioners, and no evidence regarding MSSW jurisdiction has been presented by Petitioners in this proceeding. The wetlands jurisdictional survey prepared by the Petitioners, however, showed "new" DER jurisdictional wetlands which would represent, if accepted, an alteration of the DER jurisdictional wetland boundary. Additionally, the challenge to the DER. jurisdictional determination is restricted by the Petitioners to the area around the Class I landfill footprint and its associated storm water pond. No evidence has been presented regarding the jurisdictional determination for the remainder of the site and project, including the access road. Witness Don Garlic has a degree in marine biology with additional coursework and training in the field of botany, including field training in wetland species. He visited the site for seven days for the purpose of critiquing the dredge and fill DER jurisdictional line established by the Applicant and offered as proof by the Applicant in this proceeding. In the 2-3 mile segment of the jurisdictional line around the Class I landfill and associated storm water pond, Mr. Garlick opined that there were three gaps 18-20 feet wide where he did not agree with the dredge and fill jurisdictional line determination. These areas represented by the gaps, if the gaps were determined to be jurisdictional, would add rather long, linear features of putative wetlands to the jurisdictional wetlands already encompassed by the proposed Class I portion of the project. They would add approximately 1/2 acre of additional DER jurisdictional wetlands impacted by the project. The Petitioners, however, did not establish the duration of water flow at any of the areas in which dredge and fill jurisdiction was contested. Mr. Garlick stated that water was flowing each of the seven days he was on the site, from March 28 to May 8, 1991, but stated that it was raining when he was there on April 23. He did not review rainfall data to determine whether it had rained prior to any of his visits. Likewise, he was not shown to have reviewed any groundwater data or to have performed any tests to ascertain groundwater levels in relation to claiming jurisdiction over the disputed Areas A, B, C and D depicted on Petitioners' Exhibit 8. This site has not experienced a prolonged drought. For the period 1988 through the hearing, only the latter portion of 1990 reflected a significant lack of rainfall based on rainfall data obtained from the National Oceanic and Atmospheric Administration Office (NOAA) at the U.S. Navy's nearby Cecil Field, as well as the Jacksonville International Airport. Nineteen eighty-eight, in fact, had above-average rainfall of 61 inches. The Class I landfill area was originally "flagged" in September and early October 1989. July, August and September 1989 were months of above average rainfall. September 1989 had 14 inches of rain, twice the normal rainfall. Nineteen ninety had slightly less than half of its average rainfall for the year, although it started out with normal rainfall and became dry in the fall months. There has since been twice the normal rainfall for the few months of 1991 prior to the hearing. A drought of the type and duration experienced in the latter part of 1990 would have had no significant effect on the plants at the sites in question (sites A, B, C and D). They are perennial plants that remain year-round and therefore are adapted to drought and flood conditions. (T-2047) 1/ The Applicant's jurisdictional determination based upon dominant plant species, established by its consultant in evidence was based upon perennial plant species. Therefore, the hydrological conditions on the site were normal ones when these areas were originally reviewed in 1989 and the jurisdictional delineations established and the conditions found at the site shortly prior to the hearing in March through early May 1991 by Mr. Garlick were unusually wet conditions and do not reflect the normal conditions prevailing at the site. Mr. Byron Peacock was accepted as an expert in wetlands ecology and botany with a B.S. degree in each of those disciplines, with emphasis on Florida wetland species, especially with regard to Florida fresh water wetlands. Mr. Peacock is quite familiar with the site, having been to the site "dozens of times" since September 1989, almost every month for a 21-month period. Mr. Godley, another of Applicant's expert witnesses, also visited the areas put into contention by Mr. Garlick in his testimony for purposes of testifying in rebuttal and also concluded that these areas were not jurisdictional for purposes of the DER's dredge and fill jurisdiction. Mr. Mike Eaton of DER visited at least one of the areas or sites in contention and was of the same opinion. Mr. Garlick had relied on flowing water being present and the plants present to determine that Area A, a ditch along Hells Bay Road, was a jurisdictional wetland area. The areas on both sides are upland. Mr. Garlick testified that there were breaks in the vegetation in Area A and that the vegetation was sufficient to establish a connection. Area A does not contain sufficient water to support a dominance of listed wetland species under either the "a or b tests," as provided in Rule 17-301.400(1)(a) and (b), Florida Administrative Code. There is upland vegetation growing all the way across the ditch on both sides at its connecting point and point of discharge to dredge and fill wetlands. If the ditch held water it would be wettest at this point of discharge into the jurisdictional wetlands, but the ditch does not contain water on a regular and periodic basis, as established by the testimony of Mr. Peacock. Therefore, the water observed in the ditch by Mr. Garlick would have been surface water runoff from the recent high rainfall. Concerning Area B in the Class I storm water pond footprint, Mr. Garlick indicated that he relied on herbaceous wetland plants as a basis for his finding of that as a jurisdictional area. He used the "b test" vegetation method of at least 80 percent transitional plants, less than 10 percent submerged or upland species, as well as the presence of "other indicators" of regular and periodic inundation for that Area B for purposes of the rule cited last above. Area B is a logging road and lies between upland stands of planted pines. It has been used as a road within the past year and there are "rutted- out" or gouged areas in the road caused by vehicular traffic which have puddled water, but between the puddles are areas dominated by upland vegetation. There is also a clear vegetative break in jurisdiction at the point where Area B connects to the jurisdictional line at Area B's southern end. The vegetation at that connecting point is a mixture of red. root, a transitional plant and many upland species, the dominant one being amphicarpum muhlenbergianum, which looks similar to red root in the field. Mr. Garlick testified that red root was the predominant plant in Area B. Mr. Garlick may have mistaken amphicarpum muhlenberqianum for red root. He was not familiar with that upland species and did not know if it was found at the site. A review of photographs from the 1950s, 1960s, 1970s and 1980s showed that Area B had historically always been uplands. The evidence shows that this area holds water only in limited areas following rainfall and that there is no hydrological, "a or b test" vegetative connection between these areas and jurisdictional waters of the State. Area C, located on the west side of the present West Fiftone Road, also contains part of an old road bed, as well as a ditch. Area C was determined to be within MSSW jurisdiction by the Applicant, but was also claimed as a dredge and fill jurisdictional area by Mr. Garlick for the Petitioner. Mr. Garlick indicated in his testimony that plants in Area C were mixed transitional and submerged species, but were sufficient to make out the area as within DER jurisdiction, based upon those plants. He also testified that different parts of Area C met the "a test" or the "b test." The ditch on the eastern side of Area C is dominated by upland vegetation, including amphicarpum grass, slash pine and goldenrod. The slash pines growing in the ditch, as shown by a photograph in evidence, were several years old. This ditch was dry on all of Mr. Peacock's visits to the site except recently during heavy rains. The remainder of Area C is characterized by a canopy of slash pines, a subcanopy of titi shrub of an upland type, with less than ten percent of the vegetation being characterized by bay and tupelos. There is a ground cover over most of that area consisting of upland species such as chokeberry, gallberry and reindeer moss. This area was determined to be jurisdictional for MSSW purposes because of a wet area in the middle containing fetter bush and sweet gallberry, which are both transitional species for jurisdictional purposes. The entire Area C was delineated as MSSW in the permit application, even though it may not all be jurisdictional, simply for ease of delineation and survey. The MSSW wetland areas within Area C, however, have no vegetative or hydrologic connection to the dredge and fill jurisdictional wetlands. Area C thus does not contain sufficient water or vegetation under either the A or B test connected with other jurisdictional areas to be considered jurisdictional for purposes of the DER's dredge and fill jurisdiction. Area D consists of a rutted trail-road used on a regular basis by persons visiting the tract. There is an upland pine plantation on either side of the roadway. Mr. Garlick contended there was a "flow way" in Area D, but that the vegetation was spotty or sporadic. During the past 21 months, Area D was dry every time Mr. Peacock was on the site, except recently after prolonged, heavy rains. At the eastern end of Area D near its connection to Area C, there is a patch of upland amphicarpum grass, growing all the way across the ditch and road. There is also the presence of beak rush, an upland plant which looks similar to submerged rush. There is insufficient water or wetland vegetation under either the a or b test to establish that this Area D is jurisdictional. The evidence thus did not support the Petitioner's contention that additional dredge and fill wetlands would be impacted by the project. The areas claimed by the Petitioners as additional jurisdictional wetlands did not contain sufficient water to be determined jurisdictional, pursuant to DER Rule 17-301, Florida Administrative Code. These areas held water only at certain times of the year in direct response to heavy or frequent rainfall and were normally influenced, that is, fed, by surface water rather than groundwater. Likewise, these areas did not contain sufficient plant species in the canopy, subcanopy or ground cover to be considered jurisdictional pursuant to vegetation indices and procedures delineated in Rule 17- 301.400(1)(a) or (b), Florida Administrative Code. Mr. Mike Eaton of DER testified and established a 1990 DER policy embodied in a memorandum admitted into evidence explaining how the Department employs the above-cited rule for purposes of using hydric soils in making dredge and fill jurisdictional determinations. Both Mr. Eaton and the DER policy in evidence established that hydric soils are not used by the Department except as an indicator of regular and periodic inundation once "b test" vegetation has been determined to be present for purposes of the above rule. Mr. Garlick testified that he used hydric soils as a "back up" to jurisdictional determinations based upon hydrology and plants. He did not identify any area where his jurisdictional determination was based on soils alone. The Department policy memorandum in evidence emphasizes the importance, in jurisdictional determinations with hydric soils as an aid, of not merely determining whether the soil in question is hydric, but also of investigating the specific characteristics of the soil profile, which the Department maintains must be performed by a soils scientist. Mr. Carlisle, a soil scientist, visited the site and took samples of the areas indicated by Mr. Garlick. These locations were located in an approximate fashion by Mr. Garlick on Petitioner's Exhibit 8 at the hearing. Thirty-four of the 35 samples taken were determined to be hydiric by Dr. Carlisle. There are, however, breaks of up to approximately 525 feet between the hydric soils test findings in Areas A, B and D and yet the distance between one hydric and non-hydric soil test finding was shown to be approximately 50 feet. No soil samples were taken by Dr. Carlisle in Area C. These samples are found to provide an insufficient basis for determining the presence of hydric soils throughout Areas A-D. Additionally, Areas A-D did not contain areas of "b test" vegetation contiguous to other jurisdictional areas. Therefore, even if hydric soils had been present throughout these areas, these soils standing alone, without supporting "b test" vegetation, are insufficient to establish jurisdiction in the areas maintained to be so by Mr. Garlick. General Wetland Impacts This project will impact wetlands subject to the DER jurisdiction and which are jurisdictional for MSSW purposes under Chapter 40C-4, Florida Administrative Code, the rules of the St. Johns River Water Management District. Thus, a dredge and fill permit is required pursuant to Section 403.91 et seq., Florida Statutes, and DER Rule 17-312, Florida Administrative Code. Areas subject to DER dredge and fill jurisdiction and MSSW permitting jurisdiction are considered pursuant to DER Rules 17- 301 and 40C-4, Florida Administrative Code. The 1,288 acre site contains approximately 550 acres of wetland, much of which contains planted pines as well as some naturally occurring pines, as well as hardwood swamp, cypress and gum swamp, seepage slope, ditches and swales. Virtually all of the wetlands have been adversely affected in some way by the forestry practices which have occurred and are still occurring on the site. Most of the sloughs and natural flow-ways have been channelized. Ditching has drained the adjacent wetlands and significantly altered the hydrology of the entire wetland system on the site. The wetland known as Hells Bay Swamp, immediately east of the landfills, is currently being clear cut by the Gilman Paper Company. The 550 acres of wetlands are jurisdictional for either dredge and fill or MSSW purposes or both. Some 3.17 acres of MSSW wetlands will be impacted by project construction; 1.61 acres of these are also dredge and fill wetlands. The 1.61 acres of the impacted dredge and fill and MSSW wetlands consist of roadside ditches along the Hells Bay Road and a road on the north side of the Class I landfill. These roads are currently subject to logging traffic, which decreases the usage of the roadways and ditches by wildlife. Consequently, the master of species present and using these ditches is limited. In addition to the 1.61 acres of ditches, the impacted MSSW wetlands also include 0.16 acres of wetland ditches along the entrance road in proximity to dredge and fill wetlands, a 0.80 acre isolated cypress head wetland located within the footprint of the Class I landfill and a 0.60 acre wetland located along West Fiftone Road extending into the south border of the Class I landfill footprint. The 0.80 acre cypress head has already been impacted by a logging road or fire break, and ditches have been constructed through the interior of it. The larger cypresses have been logged, and the remaining vegetation is sparse, rendering it of little quality as habitat for fish and wildlife. The 0.60 acre wetland extending into the south border of the Class I landfill is an old road bed with evidence of ruts from vehicular traffic depicted on photographs in evidence. This area has a slash pine canopy and is dominated by titi shrubs, with a few black gum and traditional wetland plant species such as fetter bush and gallberry in disconnected areas. It is a low quality wetland of scant value as habitat for fish or wildlife. Prior to and during construction, as a condition on a grant of the permits, all wetlands on the site will be protected from erosion, siltation, scouring or excessive deposition of turbidity, de-watering or other construction and operationally-related impacts by the installation and use of siltation barriers placed at wetland boundaries. Because of the significant possibility of the impacts mentioned above, especially siltation and turbidity, to the wetlands during the construction phase of the facilities and attendant to ultimate operation of the landfill itself, grant of the permit should be conditioned on acceptance of monthly inspections by DER enforcement personnel once construction has begun. Wildlife and Archaeological Resource Impacts Wildlife surveys were conducted by expert witness Isaac Rhodes Robinson and members of his staff, as well as by Biological Research Associates, Inc. in the months preceding the hearing. Mr. Robinson and the biologists on his staff spent approximately 1,000 man hours surveying the site, and Mr. Robinson, accepted as an expert in wildlife ecology and wetland ecology, testified on behalf of the Applicant in this proceeding. Assessments of the site were performed by reviewing relevant literature as well as conducting field surveys for both upland and wetland species. No evidence was found of any threatened or endangered species on the site. Mr. Robinson and his staff conducted surveys in 1990 and in early 1991 and biologists from Mr. Robinson's staff were present on the site at various times from September 1989 through the time of the hearing. Surveys performed by Mr. Robinson and his personnel were conducted in accordance with Florida Game and Fresh Water Fish Commission (FGFWFC) guidelines and exceeded that agency's guidelines by surveying 100 percent of the upland areas. No testimony of any witness in this proceeding indicated any physical evidence of use of the site by any endangered or threatened species. Wildlife surveys revealed a shall colony of gopher tortoises, listed as a species of special concern by the FGFWFC in a marginal habitat zone on the extreme western boundary of the Class I disposal area. The colony consists of less than ten individuals and there will not be a significant impact to the tortoises because the individuals will be trapped and relocated to a more suitable habitat on another area of he Applicant's tract, which will be undisturbed by the landfill or its operations, or else to a suitable habitat area off-site, as directed by the FGFWFC. Jay Stephen Godley was accepted as an expert in wildlife ecology and wetlands ecology. He directed an independent assessment of the site and project's impacts. The assessment included reviewing permitting documents, aerial photographs and literature pertaining to wildlife use of the site, as well as over 90 man hours spent at the site. He confirmed that the small population of gopher tortoises was the only significant species on the site and that the project would not significantly impact any listed wildlife species. Extensive trapping and investigation of gopher tortoise and armadillo burrows reveal no evidence of listed "commensal" species, or those species commonly found in association with gopher tortoises, such as Florida mice, gopher frogs, Florida pine snakes, or Eastern indigo snakes. In additions the isolated cypress head in the Class I landfill footprint was sampled for gopher frog tadpoles, and none were found. Florida pine snakes prefer scrub or sand hill habitats, neither of which are found on the site. Pine flatwoods environments, without the presence of either sand hill or scrub habitat, like this site, are not good indigo snake habitat. No indigo snakes' shed skins or other evidence of indigo snake frequency were observed on the site. Indigo snakes are large black snakes which are active during daylight hours and easy to observe in the course of extensive surveys such as those that were conducted for purposes of this project. Considering the amount of time spent by the various biologists on the site, it is quite likely that indigo snakes would have been observed if they frequented this site. The project will have no significant impact on wading birds. All wetlands were surveyed for listed bird species for a minimum of five days using FGFWFC guidelines. No wading birds were observed on the site during the 21 month period of review by Mr. Robinson's firm. The existence of the wood stork, bald eagle or Florida sand hill crane was not established on this site and is considered unlikely by the expert witnesses, whose opinions are accepted. No eagle nests were observed and, since the tree cover provides very limited extent of open water, the site is less than satisfactory as habitat for the little blue heron, snowy egret and Louisiana heron. The only wading bird observed by the Petitioner's expert witness on wildlife issues was a little blue heron observed in a wetland area east of the site, which is off the site being purchased by the Applicant and which was recently clear-cut by the Gilman Paper Company. The project will have no significant adverse impact on the Florida black bear's habitat. The black bear is a threatened species, but black bears do not use the site. No evidence was presented that black bears have ever been present on or in the immediate vicinity of the site. No witness, including Mr. Goodowns, an employee of Gilman Paper Company who has frequently visited and worked on this site over many years, has ever observed a black bear or any sign of a black bear present on the site. Bee hives have been kept at the site since at least 1969 and, although these are very attractive to black bears, they have never been known to have disturbed the hives, nor has it ever been necessary for bee keepers to erect electric fences or other devices to protect the hives from bears. The site presently is not far isolated from human activity, which fact deters the use of it as a habitat or an occasional travel way for black bears. It is located in an area completely enclosed by I-10, State Roads 228 and U.S. Highway 301, all heavily traveled public highways, as well as in close proximity to the town of Maxville, approximately two miles away, and Macclenny, approximately five miles away. Highways with high traffic volumes are significant barriers to movements of black bears, rendering it even less likely that black bears have or will frequent the site. The only evidence of potential black bear presence anywhere near the site presented by the Petitioners was the site's position near the Osceola Black Bear Range, as interpreted from one published article, as well as indication of three bear road kills from six to 15 miles away from the site, and supposed black bear movements recorded by the FGFWFC, all represented on a hand-drawn map, only admitted a corroborative hearsay pursuant to Section 120.58, Florida Statutes. The map exhibit contained the expert's own redrawing of his interpretation of the extent of the Osceola Black Bear Range from the article he referenced, which itself was not offered into evidence. Bear movements depicted on the map really consisted of those of a bear apprehended by the FGFWF and released in the area. The map did not show any roads, therefore making location and distances to the reported road kills speculative at best. Because black bears do not use this site and because of its encirclement by significant human activity, the site is not significant as a bear dispersal corridor or travelway between the Osceola Forest bear population and the Ocala Forest population. No direct evidence by radio-telemetry data or otherwise was offered to show that black bears actually move between the Osceola and Ocala Forest populations, nor particularly that they move through the area in the immediate vicinity of the project site. Construction of the landfill would not prevent the movement or foraging of black bears through the site. Neither fencing nor presence of traffic on the landfill access roads only during daylight hours would prevent such movement. It is also unlikely that bears would likely be hit by traffic on the roads because the noisy trucks which will use the road would provide ample warning to bear's of any danger from traffic so they would avoid it. If the landfill were constructed on this site, less than one-half of 5/100 of one percent of the 3,800 square- mile area of the Osceola Black Bear Range, referenced by the Petitioners' expert witness, would be impacted. The site itself does not provide high quality black bear' foraging or denning habitat. Even the Petitioners' expert characterized it as "good" or "better than average" habitat. All but 3.17 acres of the area to be impacted by the project is upland, consisting primarily of pine flatwoods. Authoritative studies show that flatwoods are not heavily utilized by bears, which spend 70 percent of their time in swamp or wetland habitat. The 550 acres of wetlands, including approximately 280 acres of swamps, which will be left undisturbed on the site, will provide habitat and travel corridors for the black bears should any ever frequent the site. Additionally, the 4.76 acres of hardwood wetlands to be created as mitigation, would add high quality wetland habitat for black bears. Therefore, due to the extremely small area involved, the unlikelihood of use by black bears and the mitigation proposed, the landfill will have virtually no impact on black bear habitat, travelways or populations. The evidence thus established that the project will not have an adverse impact on endangered or threatened species or their habitats. Because the site has been under extensive commercial forest management and harvest operations for over forty years, the density of plant and animal life has been reduced, thus making the site as a whole, low quality wildlife habitat.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation approving Trail Ridge Landfill, Inc.'s applications for the above-referenced permits for the proposed solid waste management facility, including a solid waste management facility permit, a storm water/management and storage of surface waters permit and a dredge and fill permit, provided those mandatory conditions specified in the Notices of Intent to issue such permits, as well as those conditions found to be necessary in the above Findings of Fact and Conclusions of Law are made mandatory conditions of permitting and subsequent facility operations. DONE AND ENTERED this 20th day of September, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September 1991.
The Issue The issue to be determined in these consolidated cases is whether proposed Florida Administrative Code Rule 62-42.300 is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties agree and the Administrative Law Judge has determined that there exists no genuine issue as to any material fact. In the December 4, 2014 SERC addendum, the Department described the changes to the proposed rule as follows: The Notice of Change filed on November 7, 2014 does not change the proposed minimum flows or the recovery strategy included in the proposed rules. The Notice of Change merely adds the existing technical information that the Administrative Law Judge found missing in the original rule text, which results in the proposed rule being found by the Judge to be vague. Specifically, these changes include: Adding the period of record used to establish the baseline flows in the Lower Santa Fe and Ichetucknee Rivers and subsequently used to develop the proposed minimum flows, and, Adding the method used for filling the data gaps in the baseline flow record for the Ichetucknee River. The Final Order in Still-I determined that the proposed minimum flows were vague because they did not include a period of record (of water flow data) to be used with the flow duration frequencies. Flow duration frequencies are percentages of time that a particular amount of flow (in cubic feet per second) is equaled or exceeded, which can vary depending on the period of record that is used. The proposed rule now describes the period of record that was used to derive the minimum flows. Petitioners contend that the rule is still vague because the rule does not identify the period of record that will be used in the future to determine whether the minimum flows are being achieved. Petitioners expressed concern that Suwannee River Water Management District might use a scientifically unsound period of record to determine that the MFL waterbodies are no longer “in recovery.” Neither the Department nor Suwannee River Water Management District identified in Still-I or in this proceeding the period of record that will be used to determine whether the minimum flows have been achieved. However, the Recovery Strategy for the MFL waterbodies is in its first phase. The rule contemplates that the MFL waterbodies will remain in recovery at least until completion of the North Florida Southeast Georgia Regional Groundwater Flow Model in 2019 and the MFLs and the Recovery Plan are re-evaluated with the model as part of phase See proposed Fla. Admin. Code R. 62-42.300(1)(d). This interpretation was confirmed by the Department and the District at the hearing on the motions for summary final order. The Supplemental Regulatory Measures (which are unchanged) do not require applicants for consumptive use permits to determine or show how a proposed withdrawal of water will affect the flow duration frequencies set forth in the rule. The period of record to be used in determining whether the minimum flows are achieved is not used in the permitting process.
Findings Of Fact The Petitioner Kirchhoff owns property bounded by the St. Johns River, and by U.S. Highway 17 and 92 in Seminole County, Florida. A legal description of the property is set out on a plat of survey which was received in evidence as Petitioners Exhibit 3. The state has recently constructed a boat ramp in close proximity to the property. The Petitioner Glover proposed to Kirchhoff that the land be developed as a fish camp. Petitioners were successful in getting the land zoned in order to allow for construction of a fish camp. A one quarter acre plot within the land owned by Kirchhoff was designated by the Petitioners as the site for their proposed fish camp. Much of this one quarter acre is low and wet, and a landfill is essential to Petitioners' plans. Petitioners' landfill and construction plans are described in the original application which Petitioners submitted to the Respondent. The application, and attached drawings show an approximately 100' x 100' landfill. The location of the landfill is marked with a red pencil on the aerial photograph map which was received in evidence as Petitioners' Exhibit 1. The major portion of the landfill would be used for parking purposes, and a 30' x 60' building would be constructed 20' from the waterward edge of the fill. The fill would cover a portion of the flood plain of the St. Johns River and would average 4 to 6 feet in depth. The flood plain along the bank of the St. Johns River in the area of the Petitioners' proposed landfill is approximately 1800 feet wide. U. S. Highway 17 - 92 has cut off approximately 1400 feet of the flood plain from the river itself. The portion of the flood plain immediately adjacent to the river, which is bounded by the highway and the river, is dominated by phragmites reeds, willows and cypress. The uplands of the proposed project is limited to the filled roadbed of highway 17-92. The landfill would merge with the highway roadbed, and would primarily cover wetlands within the St. Johns River flood plain. Such wetlands as the Petitioners proposed to fill provide a habitat and breeding grounds for many varieties of fish, shrimp, and anthropods. During the early stages of their lives many varieties of fish including bluegills, bream, sunfish, bass, and catfish live in such an area in order to hide from larger creatures. The wetland vegetation provides an essential part of the food chain for aquatic wildlife in the St. Johns River. The marsh vegetation also provides filtration from upland runoff. Runoff from the highway is filtered to a great extent by the marsh vegetation before it is received in the St. Johns River. The filling of such a marsh area would have an adverse impact upon the quality of water in the St. Johns River because of loss of the filtering effect of marshland vegetation. Furthermore, the construction of a commercial fishing camp would add additional runoff. The filtration effect provided by the landfill itself could not compensate for the loss of filtration from the marshland vegetation. The project proposed by the Petitioners encompasses only one fourth acre of the St. Johns River flood plain. The loss in wildlife habitat, and in filtration provided by wetland vegetation from this single project may be negligible, and not subject to accurate measurement. It is clear, however, that the project would provide an adverse affect, albeit slight, and that any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
The Issue The issue for consideration is whether the City of Sarasota should be issued a permit by the Department of Environmental Regulation for the construction of a dry line sewer system through the Petitioner's neighborhood.
Findings Of Fact At all times pertinent to the matters in issue herein the Petitioners, Becky Close, et al., were residents of the area in issue which is located both within and outside the boundaries of the City of Sarasota and in portions of Sarasota County contiguous thereto. The City of Sarasota, (City), is a municipality in Sarasota County which has applied to the Department of Environmental Regulation, (Department), for a permit to construct a sewage collection/transmission system in Sarasota County which Petitioners fear will adversely impact the safe, quiet enjoyment of their property. The Department is the state agency responsible for the permitting of sewage transmission, collection, treatment and disposal in this state. The City currently owns and operates a domestic wastewater collection, transmission, treatment and disposal system, including a wastewater treatment plant, which serves approximately 96% of the City's residents and which is authorized by a Construction Permit and Amended Consent Order issued by the Department. On or about November 30, 1990 the City applied to the Department for a permit to construct an additional collection and transmission system for wastewater. This permit, if issued, would provide for the City to construct several system extensions at various locations throughout the city and includes the construction of seven lift/pump stations and fourteen "tie-in" locations at which the existing system will be extended to the unserved areas. Upon completion, the system will serve approximately 99% of the City's residents. Accompanying the application was a set of engineering plans and specifications for the proposed project which had been signed and sealed by the City's engineers. Sometime after the application was filed, the Department requested additional information relating, inter alia, to the design of the lift stations in regard to flood conditions. On January 8, 1991, the City provided the requested information which was based in part on a flood insurance map prepared by the Federal Emergency Management Agency, (FEMA). Thereafter, by Notice dated March 26, 1991, the Department indicated its intention to grant the permit application. The proposed permit specifically notes that it is for the construction of the line only and before it can be placed in service, the City must secure separate approval. Specifically, the permit conditions state: 2. This permit does not authorize the connection of these collection systems to the City of Sarasota WWTP [Wastewater Treatment Plant]. The permit shall not be construed to infer any assurance that the necessary authorization for connection shall be granted. Any such authorization shall be granted only when adequate treatment in accordance with rules, regulation, and issued permits of the Department is available for any flows transported by the systems. * * * 5. Upon completion of the system and prior to use, the permittee ... shall submit to this Department a written request ... to obtain Department approval to place the system into service, .... In addition to the terms of those specific conditions relating to the limited approval effect of this permit, the General Conditions provide: 3. ... This permit is not a waiver of or approval of any other Department permit that may be required for other aspects of the total project which are not addressed in this permit. It is clear from the language of the permit that as proposed, it does not include authorization to place the covered work into service or, for that matter, to even connect it to the existing plant. The Petitioners live within an eight block area through which one of the proposed extensions, with its lift stations, will run. Many have lived in the area for decades and have experienced periodic flooding which, for the most part, results from the inability of the drainage flow to adequately handle the large amounts of rainwater which come with storms that routinely hit the area. In addition, increased paving as a part of commercial and residential development in the area has resulted in a reduction of absorption which has contributed to the flooding. The flooding which occurs usually recedes within a couple of hours and leaves a residue. Many of the residents oppose the projected permit because they fear that if the system fails during a flood period, sewage would be ejected from the system, would mix with the flood waters, and spread across the area. When the waters receded, the residue would include waste as well. William Hartman, a resident of the areas for 35 years, who is not an expert in any pertinent field, prepared a map of the area and the watershed which drains it. In doing so, he didn't consult with anyone nor can he state the total acreage or the number of impervious or pervious areas. He does not know how much rainfall there is in either a 100 year or a 25 year storm and he cannot say if any of the photographs of flooding introduced by the Petitioners depicted a 100 year storm, the last of which occurred in 1968. Nonetheless, he is still concerned. Mr. Hartman tried to make this information available to City officials before the design of the system was started but they did not seem to be much interested in it. He also tried to present the information to the City Commission before the project was voted on, but, again, it was rejected. Another resident, Mr. Williams, built a home in the area several years ago, but before he could do so, he was required to bring in fill to build up an area on which to build. Whenever it rains, the water runs off his land and onto his neighbors' and floods their houses. Since his house is built up, he does not suffer water damage, but when it floods, he has trouble getting into and out of his property. Ms. Hartman, another neighbor, was caught outdoors in the 1971 flood which brought water up to her chest. In her opinion, if sewage were released into this kind of water, it would be revolting. The evidence of periodic flooding is also supported by Mr. Lawson, the mail carrier in the area for 10 years, whose vehicle has stalled in the high water, and Mr. Riddlemoser, a resident, who has, on occasion, been unable to drive into the area due to high water. The manager of the County's Stormwater Management Division confirms there is a flooding problem in the area. Several alternatives have been proposed to deal with it. One is emergency evacuation of the residents and another is channel modification to drain the water away. Additional development in the area can be expected and any such development is required to be designed to minimize impact downstream. Nonetheless, some additional problems might be expected. The County plans to study all the reports and come up with proposed solutions to the flooding problem. Though he cannot judge whether the Corps of Engineers' report or the FEMA report has the better flood information, he would use the Corps' figures. The County's utilities plans examiner, Mr. Cole, has visited the area and attended a residents' meeting about the flooding problem. His study of the problem generates two questions. The first is what caused the flooding, and the second is that given the existence of flooding, why allow the system to be built there? He determined that the problem is caused by the fact that the City's ditches are not cleaned out and the County's are. The solution to that is to clean the ditches. Mr. Cole reviewed the application and consulted with the Department about it. Based on the information he received, he recommended the permit be issued since the plans for the design of the system are within the guidelines established by the County Code. Therefore, the County has no objection to the line being constructed. Turning to the project proposed, those portions of the system extension which will relate to the eight block area inhabited by the Petitioners are identified in the permit application as tie in extension areas C and D, and include lift stations 75 and 76, neither of which will serve any residents outside the eight block area in question. Station 75 is to be placed to the east of Central Avenue near 42nd Street and Station 76 is to be placed east of Central Avenue near 38th Street. Petitioners are concerned that in the event of flooding as a result of heavy rains or for some other reason, the sewage line as designed is incapable of protecting them against a back-up of sewage and escape of that sewage into the flood waters in the area. Evidence presented by the City indicates that at the present time, the City's existing system wastewater treatment and disposal plant capacity is 13 million gallons per day, (MGD), and average existing wastewater flow received there is only 6.467 mgd. Even with the increase in flow created by the extension of the system to existing homes, the plant is well equipped to handle the additional flow as well as that additional flow anticipated as a result of future wastewater flow when the areas to be served by the extension are fully built up. It is clear then, that the available capacity of the plant is more than sufficient to properly treat and dispose of any additional waste water flows created when and if the proposed sewer extension is approved and placed into service even after accounting for increased residential building in the area. From a technical standpoint, the proposed system must be designed and constructed according to the technical standards contained in Water Pollution Control Federation's Manual of Practice No. 9, Design and Construction of Sanitary and Storm Sewers. The evidence of record clearly indicates that the proposal here, as evidenced by the plans and specifications drawn therefor, is in compliance with those technical standards and criteria. Further, the technical standards and criteria established by the Great Lakes/Upper Mississippi River Board of State Sanitary Engineers' 1987 edition of Recommended Standard Sewage Works, also applies. The evidence of record indicates that the proposed system is in compliance with those standards as well. There is some concern as to whether privately owned property will be used for the construction of this project and the evidence indicates that this project extension for the eight block area in question will be located only on public rights of way, land owned by the City, or easements granted to the City. The evidence also demonstrates that the extension here is designed to insure the safety of the surrounding area as it pertains to runoff and other possible pollutants. In fact, the system is designed to preclude the deliberate introduction of stormwater runoff or certain other pollution such as condensate from air conditioning systems, closed system cooling water, and other sources of waste water. Specifically, both lift stations are designed to be equipped with standard receptacles for connecting portable power generating equipment to provide lift pumping capability in the event that commercial power to the area is interrupted. Both stations are also designed to discharge through the smallest possible pipes, (less than 6" in diameter), and both are designed to be equipped with risers and appropriate coupling devices at the discharge pipe so that portable pumps may be connected in the event that becomes necessary. The stations in question are designed so as to be protected from lightning and abnormal voltage surges through the affixation of lightning arresters and surge capacitors. They are designed to be equipped with phase protection and will incorporate a stand-by pumping capability to be utilized with off line power generation so that they will continue to operate even in the event of a shutdown of commercial power. The stations are equipped with locking components and barriers designed to discourage the intrusion into the station by unauthorized people or by animals, and are enclosed and designed so as to eliminate, as much as possible, any odor which might be offensive or harmful to the residents in the area. In addition, the stations are designed so as to minimize noise through the incorporation of submersible pumps. What is more, recognizing the fact that the locations of the stations have a high water table, the stations were designed so as to remain in place even when empty. In that regard, the bottom slab is designed to be broader than the overlying body of the station so that the weight of the dirt above the slab will hold the station in place. Taken together, then, the evidence indicates, and it is so found, that the proposed system extension has been designed consistent with sound engineering practices so that it will accomplish its purpose in an environmentally sound manner. A primary concern of the residents is that the City has failed to account for flooding conditions which occur in the eight block area. In support of their concerns, Petitioners introduced several photographs purporting to show flooding into evidence, yet the photographs were not specifically identified as to which flood and under what conditions the scenes represented thereon took place. The City presented expert testimony based on varying sources of information including FEMA and the Corps of Engineers. Both are sources that engineers would rely upon to determine flood elevations in the course of designing a sewer system. This evidence indicates that both lift stations would not be located in those areas depicted in the flooding photographs presented by the Petitioners. By way of background, floods are categorized in year configurations. For example, a "25 year flood", is one in which the water level is likely to occur at least once over a 25 year period. By the same token, a "100 year flood" is one in which the water level is likely to occur at least once over a 100 year period. A 25 year or 100 year flood incorporates conditions caused by "flash flooding", a term used to depict a very rapidly occurring flood which arises without warning. Use of the two flood elevation maps, that by FEMA and that by the Corps of Engineers, creates a discrepancy, however. The FEMA map indicates the stations are not located within either the 25 or 100 year flood zones. On the other hand, the Corps of Engineers reconnaissance report indicates they are. The Corps of Engineers report indicates that the 25 year flood elevation at station 75 is approximately 15.2 feet above sea level, and the 100 year elevation at that site is approximately 15.9 feet above sea level. The Mobilife engineering report, which describes actual water levels at particular locations in the eight block area during the 1962 flood, recognized as a 100 year flood, (and which considers stations 75 and 76 to be within the 100 year flood zone), shows the 100 year flood water at station 75 reached approximately 16.2 feet, the same as at station 76. Regardless of which flood level is considered accurate, however, the City's evidence shows that the electrical components in both stations, those components sensitive to water, are contained within a control panel which is sealed for protection from the weather. Further, it must be noted that the bottom of the electrical control panel is at an elevation of 18.3 feet at station 75 and at 17.7 feet at station 76. Consequently, whether one uses the FEMA/COE figures for water level or the Mobilife figures for a 100 year flood, the fact remains that the sensitive electrical components would be well above high water in either case. It is clear, then, that the design of both lift stations sufficiently addresses the potential for damage or interruption of operation because of flooding. The system is designed so that those components sensitive to flooding will be placed above the expected high water marks, and the mechanical components are designed for submerged use and are not generally affected by flood conditions. The lift stations are designed so that they will be protected from damage by wind or water and should remain fully accessible and operational during either a 25 or a 100 year flood. This evidence presented by the City was neither contradicted or rebutted by any evidence submitted by Petitioners. Even if, however, there should be a flood elevation higher than those predicted by either FEMA or the Corps or Engineers, it would be relatively easy and inexpensive, to raise the control panels even higher at those lift stations to correct any problem that might arise. There are, in addition, safeguards designed into the system which will alert the population to problems occurring in the pump function. Visual alarms are installed which will alert passersby or staff from the utility to the fact that the pumps are not operating properly. In addition, the design of both stations incorporates a reserve capacity which is sufficient to provide the City with sufficient time to correct any failures, electrical or mechanical, which might occur before damage can take place. Specifically, the design at station 75 will provide additional capacity of approximately 24 hours at maximum build-out before a back-up can be expected to occur. At station 76, this reserve capacity will permit 2.26 days of additional operation before a problem takes place and this also assumes maximum build-out. Under those circumstances, if a failure should occur at either station, there would be ample time for the City to utilize temporary electrical or pumping activities to prevent a back-up from occurring. The City contends that if flood conditions were to occur at either station that were not corrected and which resulted in the unlikely backup of sewage, the impact of such backup on residents in the area would be minimal. Its rationalization is based on the supposition that if flood conditions causing such a back-up were to occur, they would result in the Petitioners evacuating the area, and therefore, they would not be impacted. This would relate, of course, only to the impact on personal safety, but not to potential impacts such as loss of property or secondary safety consideration. This argument, which is not significant, is not considered pertinent and is rejected. Were a failure to occur at lift station 75 that resulted in sewage back-up, that back-up would occur at the lowest point in the system, the manhole at 40th Street. If a similar failure resulted in a backup in system 76, the back-up would be at 39th Street. In either case, the City claims, the back-up would not reach customers' homes. This argument, too, though not rebutted by the Petitioners, appears not to consider all the potential impacts such as odor, appearance, and the like which, while not necessarily accompanied by sewage entering the home, is, nonetheless, adverse in impact if located in the immediate area of those homes. Other factors are also pertinent to a study of the safety and propriety of the project include the fact that the system extension is designed in such a fashion as to adequately address the forces of water movement. It is also noted that the system does not include any intersection with force mains; it does not include any stub-outs on existing force mains since it is designed to accommodate the service area at full build-out. The City does not anticipate that the system will involve any sewage pipes intersections with water mains, but if such mains are encountered, the project plans contain instructions to the contractor to afford appropriate protection. The program does not envision any intersection between sewer lines, storm mains or water mains, and the project has been designed so that manhole settling and pipe settling should be minimized. In the event there is settling, however, the project proposes the use of flexible pipe and pipe connectors to minimize any damage that might result therefrom. In that regard, the project calls for the use of flexible, water-tight, wall-to-pipe joints which would compensate for any remaining differential or stress. Normal operation and maintenance will be enhanced by the use of standard size manholes in the system. Since the proposed system is not designed to cross any waterways or canals subject to maintenance dredging, there should be no damage by virtue of those activities. In addition, there is little likelihood that any part of the system could be damaged by boat anchors or by interface with underwater sewage lines. Taken together, the system appears to be well designed and compatible with accepted engineering standards. All foreseeable contingencies appear to have been provided for and the risk of back-up and resultant damage to the property or safety of residents in the area has been minimized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered issuing Permit No. CS 58-189732, for the dry line construction of an expansion to the City's existing domestic wastewater collection/transmission system, as outlined in the Department's Notice of Intent dated March 27, 1991. RECOMMENDED in Tallahassee, Florida this 26th day of September, 1991. ARNOLD H. POLLOCK 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 26th day of September, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-2470 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONERS: None submitted FOR THE CITY: 1.- 3. Accepted and incorporated herein. 4.- 10. Accepted and incorporated herein. 11. Not a proper Finding of Fact. 12.- 14. Accepted and incorporated herein. 15.- 16. Accepted and incorporated herein. 17.- 20. Accepted and incorporated herein. 21.- 28. Accepted and incorporated herein. 29.- 34. Accepted and incorporated herein. 35.- 37. Accepted and incorporated herein. 38.- 43. Accepted and incorporated herein. 44. Accepted and incorporated herein. 45.- 50. Accepted and incorporated herein. 51.- 55. Accepted and incorporated herein. 56. Accepted and incorporated herein. 57. Accepted and incorporated herein. 58. Not a Finding of Fact but a comment on the evidence. 59.- 65. Accepted and incorporated herein. 66.- 69. Accepted and incorporated herein. 70.- 73. Accepted and incorporated herein. 74.- 79. Accepted and incorporated herein. 80.- 87. Accepted and incorporated herein. 88.- 89. Accepted and incorporated herein. 90.- 95. Accepted and incorporated herein. 96. Rejected as not a appropriate Finding of Fact. 97.- 99. Accepted and incorporated herein. 100.-114. Accepted and incorporated herein. 115.-118. Accepted. 119. Not a Finding of Fact but a comment on the evidence. 120.-123. Accepted. 124. Just a comment on the evidence. 125. Accepted. 126.-128. Merely a comment on the evidence. 129. Accepted. 130 -131. Merely a comment on the evidence. 132.-133. Accepted and incorporated herein. 134.-136. Accepted. FOR THE DEPARTMENT: 1.- 6. Accepted and incorporated herein. 7.- 11. Accepted and incorporated herein. 12.- 19. Accepted and incorporated herein. 20.- 25. Accepted and incorporated herein. 26.- 36. Accepted and incorporated herein. 37. Accepted and incorporated herein. 38.- 42. Accepted and incorporated herein. 43.- 49. Accepted and incorporated herein. 50.- 54. Accepted and incorporated herein. COPIES FURNISHED: Becky Close 1380 42nd Street Sarasota, Florida 34234 William Hartman 1325 41st Street Sarasota, Florida 34234 Robert Rhoades 1335 40th Street Sarasota, Florida 34234 David M. Caldevilla, Esquire de la Parte & Gilbert, P.A. P.O. Box 172537 Tampa, Florida 33672-0537 W. Douglas Beason, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant fact are found: On May 3, 1989, Cersosimo submitted an application for a Management of Surface Water Permit to the District. Subsequent to the submission of this application, the Polk County Board of County Commissioner (Commissioners) added an additional requirement to Cersosimo's Planned Unit Development (PUD) that there was to be a pre- development/post-development match for basin runoff in the event of a twenty- four hour one hundred (100) year storm event, i.e. following completion of this project (post-development) it will handle the same outflow or flow of storm water for the twenty four-hour one hundred-year storm event as in a pre- development situation. Based on the Commissioners' requirement, the design of the PUD was amended to provide for the required storage capabilities. On July 26, 1990, Cersosimo submitted to the District, its amended application, Management of Surface Water Permit No. 405733.01 incorporating the changes necessitated due to the Commissioners' additional requirement as to storm water runoff. On August 24, 1990, Ramon E. Monreal, P.E., of the Polk County Engineering Division, noted in a letter of that same date referring to Cersosimo's modification of Retention Pond No. 300 for the project in question that "this revision appears to meet the PUD condition by the Board of County Commissioners for drainage and compliance with the Surface Water Management Ordinance". The application of July 26, 1990, amends the original application by superceding and replacing that application. In connection with the application for permit, soil borings were taken at the site location for the retention ponds in order to establish the elevation of the seasonal high water level (SHWL) for that site. The borings indicated an elevation for the SHWL of 110 feet to 112 feet above mean sea level (AMSL). The District conservationally established the elevation for the SHWL of this particular site as 112 feet AMSL. The floor elevation of the lowest retention pond was established at 114.00 feet AMSL. The elevation of the surface of Lake Mabel for the ten year flood warning Level is 114.50 feet AMSL as established by Rule 40D-8.624(1)(z), Florida Administrative Code. District policy requires the floor elevation of a dry retention pond to be a minimum of one foot above the established elevation of the SHWL of that particular site. Even though the surface elevation of Lake Mabel for the Ten Year Flood Warning Level was established as 114.50 feet AMSL, there is insufficient evidence to show that there was lateral migration of water from the lake's edge to the site of the soil borings such that it was evidenced by a demarcation in the soil profile. To the contrary, the evidence shows that there were demarcations in the soil profile to establish an elevation for the SHWL for this site of 110 feet to 112 feet AMSL. The designed weir crest in the lower retention pond, Pond No. 300, has an approximate elevation of 118.50 feet AMSL which prevents water from coming over the top into the pond in the event Lake Mabel reaches the ten year flood level warning elevation of 114.50 feet AMSL. The distance from the present water edge of Lake Mabel to the bottom of Pond No. 300 would be approximately 600 feet, laterally and if the lake reached the ten year flood level warning elevation of 114.50 feet AMSL, the lake's water edge would be approximately 100 feet laterally from the bottom of Pond No. 300. There was sufficient evidence to show that even if the surface elevation of Lake Mabel reached the ten year flood level warning of 114.50 feet AMSL and the SHWL (ground water level) reached 112 feet AMSL, the retention ponds as presently proposed with a floor elevation of 114.00 feet AMSL would still percolate sufficiently, even though the percolation may be diminished from what it would be under present conditions, so that there would still be a pre- development/post-development match for basin runoff. Cersosimo can give reasonable assurances that the surface water management system as presently proposed will not diminish the capabilities of Lake Mabel to fluctuate through the full range established for it in Chapter 40D-8, Florida Administrative Code. Among others, the following specific conditions in pertinent part will be placed on the permit, if granted: . . . The applicant shall visually monitor the ponds on a monthly basis to ensure that the ponds are dry within 36 hours from the end of the last rainfall event. Should the ponds fail to percolate the required water quality volume per District criteria, a permit modification shall be required. . . .
Recommendation Based upon consideration of the foregoing Findings of Fact and Conclusions of law, it is, recommended that the Southwest Florida Water Management District enter a Final Order granting the application for Management Surface Water Permit No. 405733.01, as proposed by the District. RECOMMENDED this 12th day of February, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4175 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. The Petitioner did not submit any Proposed Findings of Fact Rulings on Proposed Findings of Fact Submitted by Respondent Cersosimo 1. - 7. Adopted in Findings of Fact 1-7, respectively. 8. - 10. Adopted in Findings of Fact 10, 8 and 14, respectively. 11. Adopted in Findings of Fact 12 and 13. 12.-13. Adopted in Findings of Fact 13 and 11, respectively. Respondent District adopted Respondent Cersosimo's Proposed Findings of Fact, therefore the same rulings would apply as was applied to Respondent's Cersosimo's Proposed Findings of Fact above. COPIES FURNISHED: Catherine D'Andrea, Esquire Susan Dietrich, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Gary L. Gandy Omega Farm Post Office Box Omega Waverly, Florida 33887 Beach A. Brooks, Jr., Esquire Post Office Drawer 7608 Winter Haven, Florida 33883 Peter G. Hubbell Executive Director 2379 Broad Street Brooksville, FL 34609-6899
