STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALOOSA PROPERTY OWNERS' )

ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-3155

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION; ) CALEFFE INVESTMENT, LTD.; and ) WORTHINGTON ENTERPRISES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

1. Pursuant to notice, a formal administrative hearing was conducted in this matter on March 31 and April 1, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Tracy R. Sharpe,

West Palm Beach, Florida

For Respondent Department of Environmental

Regulation: Dennis R. Erdley, Tallahassee, Florida,

For Respondents Caleffe Investment Ltd., and Worthington

Enterprises, Inc.: Terry E. Lewis,

Tallahassee, Florida

Caleffe Investment, Ltd., and Worthington Enterprises, Inc. ("Applicants" hereafter), filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. On or about October 21, 1982, the Department issued a letter stating its intention to grant the permit application. The Caloosa Property Owners' Association, Inc. ("Petitioner" hereafter), requested a formal administrative hearing. On or about November 17, 1982, the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The hearing was scheduled as set out above by notice dated January 7, 1983. On December 27, 1982, the Petitioner filed a "Petition for Rule Challenge" with the Division of Administrative Hearings. Petitioner alleged that the Department has a policy of accepting "trade-offs" or "mitigation" from permit applicants in exchange for issuing permits, that the policy constitutes a rule that has not been properly

promulgated, and that it is an invalid exercise of delegated legislative authority. The Director of the Division of Administrative Hearings issued an Order of Assignment on January 5, 1983, assigning the rule challenge proceeding to the undersigned Hearing Officer. The parties agreed to waive the time limitations set out in Section 120.56, Florida Statutes, so that the issues in this matter and in the rule challenge proceeding could be heard at the same hearing. A separate Final Order has been entered in the rule challenge proceeding.

At the final hearing, the Applicants called the following witnesses: Howard Searcy, a registered professional engineer; Robert B. Blackburn, a consulting biologist; Robert C. Glassen, a consulting geologist; Dan Garlick, a permit processor in the Standard Permitting Section of the Department; and Jeremy Craft, the head of the Department's Dredge and Fill Permitting Section. The Petitioner called the following witnesses: Paul Parks, a consulting chemist; James J. Barry, the supervising biologist of the Palm Beach County Health Department; Louis Toth, an environmental specialist formerly employed with the Department; Grace Blanchard Iverson, a consulting biologist; Jeremy Craft; and Dan Garlick. The Department rested its evidentiary presentation on documentary evidence and cross-examination of the other parties' witnesses. A portion of the hearing was set aside so that members of the public at large

could present testimony. The following individuals, all of whom own property in close proximity to the proposed project, testified: William Ferrel, George Fizll, Janet Royals, Ginger Leis, R. E. Leis, Dr. Richard Carrington, and Steve Giunta.

Hearing Officer's Exhibits 1 through 4, Petitioner's Exhibits 1 through 15, Respondent's Exhibits 1 through 13, and Public Exhibit 1 were offered into evidence and received. Exhibits received as "Respondent's Exhibits" were offered and received as exhibits of both the Applicants and the Department.

The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUE

The ultimate issue to be addressed in this proceeding is whether the Applicants should be granted a dredge and fill permit. Petitioner contends that the Applicants have failed to provide reasonable assurances that the short-term and long-term effects of their proposed activities will not result in violations of the Department's water quality standards for both surface water and groundwater. The Applicants and the Department contend that reasonable assurances have been provided.

FINDINGS OF FACT

1. The Applicants are the owners of a 1,248-acre parcel of land located at the intersection of State Road 710 and State Road 711 in northern Palm Beach County, Florida. The Applicants are proposing to develop an industrial park known as "Palm Beach Park of Commerce" (PBPC). PBPC will provide sites for tenants to carry on various commercial and industrial activities. In order to prepare the site for development, the Applicants have designed a surface water management system. In order to develop the system, the Applicants must conduct

   dredging and filling activities in areas where the Department of Environmental Regulation has permitting jurisdiction.

   
   

2. The Petitioner is an association of home owners within a single family residential development known as "Caloosa." The development is located to the southeast of the proposed PBPC. Surface and ground water flows from the PBPC site are toward Caloosa. Residents of Caloosa and members of the Petitioner are entirely dependent on private individual wells for their drinking water. The surficial aquifer is the only viable source of drinking water.

   
   

3. The proposed PBPC surface water management system would allow water to drain from the site into an excavated canal which would essentially follow the perimeter of the site. The canal would discharge at the southeast corner of the site into the Caloosa Canal, which runs through the Caloosa residential development. The Caloosa Canal is designated as a Class III water body. The Caloosa Canal drains into the "C-18 Canal," which is maintained by the South Florida Water Management District. The point at which the Caloosa Canal discharges into the C-18 Canal is approximately 2.4 miles from the PBPC site. The C-18 Canal is designated as a Class I water body. The C-18 Canal ultimately discharges into the Loxahatchee River Basin, a Class II water body, which is located approximately 12.9 miles from the PBPC site. It is possible that during some periods of the year, water from the PBPC site would ultimately find its way to the Jonathan Dickinson park, where water has been designated as "outstanding Florida waters." It is approximately 13.2 miles from the PBPC site to the Jonathan Dickinson Park.

   
   

4. The PBPC site is a high, marginal, stressed Everglades system. It is a prairie or pine flatwood area. During periods of heavy rainfall, water covers most of the site. During dry periods, there is standing water only in depressions. Approximately 200 acres of the site are inundated with water during a sufficient portion of the year to support predominantly wetland vegetation. Approximately 24 acres of the wetlands on the site are directly connected to drainage ditches that presently rim the site. The ditches are connected to the Caloosa Canal so that these 24 acres are ultimately connected through canal systems to the Loxahatchee River. These wetland areas, which will be hereafter referenced as "jurisdictional wetlands," are the only wetland areas other than the existing drainage ditches over which the Department of Environmental Regulation asserts jurisdiction under its Rule 17-4.28, Florida Administrative Code.

   
   

5. As a part of its surface water management system, the Applicants propose to maintain 133.7 acres of the wetlands on the site in their natural condition. These wetland areas would be incorporated into the surface water management system so that surface water would flow into the wetlands, then through culverts or drainage ditches into the perimeter canal. The remaining wetlands on the site, including all of the "jurisdictional wetlands," would be filled.

   
   

6. The wetlands on the PBPC site perform a significant water quality function. The wetlands serve as a filtration system. Wetland vegetation removes nutrients and turbidity from surface water before it is discharged into the canals and ultimately into the Loxahatchee River. The wetlands that the Applicants propose to preserve on the site would continue to perform that beneficial function. In order to mitigate the loss of the wetlands that would be filled, the Applicants propose to create approximately 85 acres of new wetland areas and to vegetate these areas. These artificially created wetlands,

   if properly constructed, vegetated and maintained, would perform the same beneficial functions as the natural wetland communities.

   
   

7. The Applicants have proposed to introduce several safeguards into their water management system to assure that the quality of surface and ground water in the area will not be adversely impacted. The preservation of 133 acres of natural wetland areas and the creation of approximately 85 acres of artificial wetland areas is one of these safeguards. In addition, the surface water management system includes the creation of swales around water bodies so that the first one inch of stormwater runoff on the site will not drain directly into surface water bodies. By retaining the first one inch of runoff, pollutants contained in stormwater runoff will be retained on the site and will not enter surface or ground waters. Each commercial or industrial site at PBPC will be required to retain an additional one inch of stormwater runoff on the individual site. This will serve to filter pollutants out of stormwater runoff even before the runoff reaches the overall surface water management system in which one inch of runoff will also be retained on site. The Applicants have also agreed to establish a surface water quality management program to prohibit the discharge of any industrial waste into the surface water management system and to have the surface water management system maintained by the Northern Palm Beach Water Control District.

   
   

8. There are further safeguards proposed by the Applicants. The Applicants have agreed to prohibit the most potentially hazardous industrial activities from being undertaken on the site. Applicants have also agreed to require each individual site plan to be reviewed by local government, the South Florida Water Management District, and the Department of Environmental Regulation so that potential water quality problems connected with site-specific uses can be identified and, if necessary, prohibited. The Applicants have agreed to establish an environmental liaison officer whose function will be to monitor all development on the site and report routinely to local government, the South Florida Water Management District, and the Department of Environmental Regulation regarding environmental issues. In order that any potential groundwater pollution can be detected and, if necessary, steps taken to remove pollutants from the groundwater, the Applicants have agreed to establish well- monitoring systems for the project as a whole and for individual sites. Individual site plans have not yet been formulated. It is not practical or possible to design water monitoring programs for the individual sites at this time. Once the nature of activities at a site are known, monitoring programs can be effectively set up and maintained. In the event that surface or ground water contamination occurs, it can be detected through monitoring programs, and the contaminants can be removed.

   
   

9. The Applicants have provided reasonable assurance that the short-term and long-term effects of the construction of the PBPC water management system will not result in violations of the Department's water quality standards for surface or ground water. By use of turbidity screens during construction, short-term impacts will be negligible. Absent any construction on the site beyond the creation of the surface water management system, it is likely that the quality of water leaving the PBPC site will be as good or better than at present. Since the Applicants have not yet located tenants or made individual site plans for commercial and industrial activities within PBPC, it is not possible to determine if some specific activity in the future could operate to cause violations of the Department's water quality standards. In order that there be such assurances, the Applicants have agreed to subject individual site plans to review by local government, the South Florida Water Management District, and the Department of Environmental Regulation. In the event that a

   future tenant is not able to provide required assurances, the use can and should be prohibited, and can be prohibited by regulatory agencies as a condition of permits issued to the Applicants.

   
   

10. Water quality violations presently occur in the Caloosa Canal and the C-18 Canal. The safeguards proposed by Applicants reasonably assure that the implementation of the proposed water management system will not exacerbate or cotribute to these violations.

    
    

11. There is approximately an 11-square-mile area which drains into the Caloosa Canal through the outfall at the southeast corner of the PBPC site. The PBPC site constitutes approximately two square miles of this area. The remaining nine square miles are located to the north and west of the PBPC site. These off-site areas are undeveloped and have an ecology very similar to the presently undeveloped PBPC site. The evidence would not establish a finding that development of these off-site parcels together with development of the PBPC site would cumulatively result in water quality violations of surface or ground waters.

    
    

12. The Applicants will be required to obtain permits to construct a wastewater treatment facility on the PBPC site. Whether any proposed wastewater treatment system will meet the standards of regulatory agencies would appropriately be considered in later proceedings. Similarly, individual tenants will, in some cases, be required to operate wastewater treatment systems that pretreat industrial waste before it is introduced into the system-wide wastewater treatment system or before it is otherwise removed from the site. These systems would also be subject to future permitting proceedings.

    
    

13. Some of the potential activities that could be carried on by tenants at the PBPC involve the use of volatile organic compounds and other hazardous toxic substances. If proper techniques are not followed for the handling of such substances, or if some accident occurs, the substances could be introduced into the surface and ground waters. Review of each individual site plan and the establishing of systems for properly handling toxic substances can reduce the possibility of incidents occurring. Human frailties existing as they do, however, it is not unlikely that such an incident will occur. If such an incident occurs, it is vitally important that the contamination of surface or ground water be quickly detected and that steps be taken to remove the contaminant. The establishing of proper monitoring systems can reasonably assure that the contamination is identified. Techniques do exist for removing contaminants from surface and ground waters. Since individual tenants and site plans have not yet been established, it is not possible to make any finding as to whether any individual tenant or site plan might operate in such a manner as to cause violations of the Department's water quality standards. It is therefore appropriate that individual tenants and site plans be subjected to further review by appropriate regulatory agencies before they are permitted to operate on the PBPC site. The Applicants have agreed to such a review process.

    
    

14. Since surface water flows into the Caloosa Canal can be controlled through the outfall structure at the southeast corner of the PBPC site, it appears practical to isolate any contaminant that might enter the surface water and to remove it. Groundwater flows in the aquifer lying below the PBPC site are very slow--less than one-tenth of one foot per day. Given such flow rates, it is likely that any contaminants that enter the groundwater can be detected and effectively removed.

15. Even given the implementation of the best procedures for handling toxic substances, the best monitoring program for detecting accidental releases of the substances, and the best systems for removing the substances from surface and ground waters, there is some possibility that an accident could occur, that a contaminant would not be detected, and that violations of the Department's water quality standards could occur as a result in the Caloosa Canal or in the groundwater which underlies the Caloosa development and provides drinking water to residents there. The result of such an incident could have very serious impacts. The introduction of toxic substances into the surface waters could cause a substantial damage as far downstream as the Loxahatchee River Basin. Contamination of the groundwater could result in a loss of water supply to residents or in serious public health consequences. While such possibilities exist, they appear unlikely given the safeguards that have been proposed for PBPC.

    
    

16. The Applicants do not propose to undertake any dredging or filling activities in any navigable waters.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

    
    

18. Petitioner endeavored to offer evidence during the course of the formal hearing relating to water quality impacts of stormwater discharges from the proposed PBPC. The evidence was excluded. The Department of Environmental Regulation has delegated the authority to regulate water quality impacts of stormwater discharges within the borders of the South Florida Water Management District to the District. See Department of Environmental Regulation Order No. 82-0023 (entered February 3, 1982). Such a delegation is authorized under the provisions of Section 403.812, Florida Statutes. The Applicants have sought a permit from the South Florida Water Management District, and issues relating to water quality impacts of stormwater discharges have been considered in that licensing proceeding. See Caloosa Property Owners' Association, Inc. v. South Florida Water Management District, DOAH Case No. 82-1937 (Recommended Order entered February 23, 1983)

    
    

19. The Applicants are not required to obtain a permit under the provisions of Chapter 253, Florida Statutes, for their proposed dredging or filling activities because their activities are not being undertaken in navigable waters. See Section 253.123, Florida Statutes. The Applicants are, however, required to obtain a permit from the Department of Environmental Regulation for their proposed activities under the provisions of Chapter 403, Florida Statutes. See Sections 403.087, 403.088, Florida Statutes. Under the Department's Rule 17-4.28, Florida Administrative Code, a permit is required for dredging or filling activities which are conducted in or connected directly or through an excavated water body or series of excavated water bodies to natural water bodies of the State. The landward extent of such water bodies is determined by evaluating the dominant vegetation. See Rule 17-4.02(17), Florida Administrative Code. The Applicants are proposing to undertake dredging and filling activities in areas connected by excavated water bodies to natural water bodies of the State.

20. The Department's Rule 17-4.28(3) provides:

    
    

    The applicant for a dredge and/or

    fill permit . . . shall affirmatively provide reasonable assurance to the department that the short-term and

    long-term effects of the activity will not result in violations of the water quality criteria, standards, require- ments and provisions of Chapter 17-3, Florida Administrative Code.

    
    

    There is no evidence from which it could be concluded that the short-term effects of the proposed dredging and filling would have other than an insignificant impact upon the quality of surface and ground water. There is no evidence from which it could be concluded that the long-term effects of the dredging and filling would have any negative impacts upon surface or ground water except in connection with future activities that might be conducted by individual tenants on individual sites within the industrial park.

    
    

21. Petitioner contends that since future tenants and future industrial uses have not been specifically identified, the Applicants have failed to establish that these activities will not result in violations of the Department's water quality standards. If no further review of these future activities or of individual site plans is undertaken, the Petitioner's contention would be well taken. Since future tenants and uses have not yet been identified, it is appropriate that such uses be reviewed and subject to permitting requirements of the Department of Environmental Regulation, as well as other regulatory agencies. In that manner, issues relating to the handling, treatment, and disposal of hazardous materials can be considered. In addition, the establishment of appropriate monitoring systems for the individual sites and for emergency systems to remove contaminants that might enter the surface or ground waters can be subject to further review.

    
    

22. Whatever precautions are taken, there is always a possibility, given human frailty, that there will be a breakdown in the systems so that what is reasonably likely to work does not work. The existence of such possibilities would render the permitting of virtually any development, and certainly any industrial development, impossible. The Department's requirement that reasonable assurances be provided does not contemplate absolute assurances. Given the potential harmful impacts that contamination of surface and ground waters could have, however, it is appropriate that all reasonable safeguards be taken. To assure that adequate monitoring systems and adequate emergency cleanup systems are implemented, it is appropriate that the Applicants be required to enter into a bonding agreement that would assure that sufficient funds are available to monitor and clean up accidents that occur. The amount of such a bond cannot be determined without knowing the nature of specific industrial uses and site plans, It is appropriate that as a condition to the issuance of this permit the Department require the Applicants to post bonds in connection with the permitting of future site plans.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Environmental Regulation enter a final order issuing a permit to Caleffe Investment, Ltd., Worthington Enterprises, Inc., to conduct the dredging and filling activities proposed by the Applicants. To ensure that state water quality standards will not be violated, the conditions cited in the Department's Intent to Issue notice dated October 22, 1982, should be made a part of the permit. In addition, the following conditions should be made a part of the permit:

1. All individual site plans within PBPC should be subject to the Department's permitting processes in accordance with Rule 17-4.28, Florida Administrative Code, and other provisions of Chapter 17, Florida Administrative Code, and Chapter 403, Florida Statutes, as may apply.

   
   

2. The Applicants should be required to post bond in a sufficient amount to assure proper implementation and operation of monitoring systems for individual sites and to assure that adequate funds are available to remove and properly treat contaminants that might enter surface or ground waters as a result of accidents.

RECOMMENDED this 19th day of May, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1983.

COPIES FURNISHED:

Randall E. Denker, Esquire Lehrman & Denker

Post Office Box 1736 Tallahassee, Florida 32302

Dennis R. Erdley, Esquire Alfred J. Malefatto, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Robert M. Rhodes, Esquire Terry E. Lewis, Esquire James Hauser, Esquire Messer, Rhodes & Vickers Post Office Box 1876 Tallahassee, Florida 32302

Alan J. Ciklin, Esquire Boose & Ciklin

8th Floor - The Concourse

2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409

Tracy Sharpe, Esquire Farish, Farish & Romani

316 First Street

West Palm Beach, Florida 33402

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director Administrative Procedures

Committee

Room 120, Holland Building Tallahassee, Florida 32301

Docket for Case No: 82-003155

Orders for Case No: 82-003155