STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FOREST W. BLANTON and SOUTHWEST ) RANCHES HOMEOWNERS' ASSOCIATION, ) INC. )

)

Petitioners, )

)

vs. ) CASE NO. 86-1860

)

EDWARD GOSCICKI, Utilities ) Director, BROWARD COUNTY SOLID ) WASTE MANAGEMENT SECTION, ) BROWARD COUNTY and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

) SOUTHWEST RANCHES HOMEOWNERS' ) ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-4894

)

BROWARD COUNTY UTILITIES )

DIVISION and DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled cases on March 9-12, 1987, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Brion Blackwelder, Esquire

Titone, Roarke, Blackwelder & Titone 7471 West Oakland Park Boulevard Lauderhill, Florida 33319

For Respondent, Clifford A. Schulman, Esquire Broward County: Sheila F. Wolfson, Esquire

Greenberg, Trawig, Askew, Hoffman, Lipoff, Rosen & Quentel, P.A.

1401 Brickell Avenue

Miami, Florida 33131

For Respondent, Christopher D. McGuire, Esquire Department of Douglas M. Wyckoff, Esquire Environmental Department of Environmental Regulation Regulation: Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

PRELIMINARY STATEMENT

At issue in this proceeding is whether Respondent, Broward County, is entitled to a solid waste construction permit and dredge and fill permit to construct a Class I sanitary landfill in Broward County, Florida.

At hearing Broward County presented the testimony of 7 witnesses, and its exhibits 1-32, 34A, 348, 34C, 35, 37, 38A, 3BB, 38C, 40, 42-51, 53-58, 59A, 59B,

1. , and 125-131 were received into evidence. Testifying on behalf of Broward County were James Elias; Robert Schneider, accepted as an expert in civil engineering and solid waste management disposal; Joseph L. Miller, accepted as an expert in civil engineering with emphasis on solid waste management and planning; David E. Deans, accepted as am expert in civil engineering with emphasis on landfill design; Joseph E. Fluet, accepted as an expert in civil engineering with emphasis on geosynthetics and geosynthetic liner design; William Pitt, Jr., accepted as an expert in hydrology; and James M. Hudgens, accepted as an expert in general biology, with emphasis on wetlands biology and wetlands jurisdictional evaluations.

   
   

   The Department presented the testimony of 6 witnesses, and its exhibits 1- 8, 10, and 14-20 were received into evidence. Testifying on behalf of the Department were Joseph Lurix, accepted as an expert in the evaluation of solid waste management designs; David M. Rogers; Marion E. Hedgepeth; Richard W. Cantrell, accepted as an expert in biology and botony; Maureen Powers, accepted as an expert in botony with emphasis on plant taxonomy and wetland plant identification, as well as an expert in the general field of biology; and Kelly Custer, accepted as an expert in biology.

   
   

   The Petitioner presented the testimony of 9 witnesses, and their exhibits 3B, BA-10A, 12, 12A-18A, 161, 16T, and 20A-22A were received into evidence.

   Petitioners' exhibits 1z, 2Y, and 2z were received into evidence for the limited purpose of establishing that such documents were in the Department's permitting files, and not for their truth. Testifying on behalf of Petitioners were Charles Schnepel; Forest W. Blanton; Michael J. Nichols, accepted as an expert wetlands biology; Wesley L. Miller, accepted as an expert in hydrogeology, including groundwater and surface water hydrology and water quality determinations; Ronald Bergeron; Michael Slayton; Thomas E. Lodge, accepted as an expert in biology; Samuel McCollun, accepted as an expert in soil science; and, George Fitzpatrick, accepted as an expert in biology, with specialization in plant- water relationships, wetland ecology, horticulture, and bionomics.

   
   

   The transcript of hearing was filed April 14, 1987, and the parties were granted leave, at their request, until April 28, 1987, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be filed within 30 days of the date the transcript is filed. Rule 221- 6.31, Florida Administrative Code. The parties' proposed findings of fact have been addressed in the appendix to this recommended order.

   FINDINGS OF FACT

   
   

   1. On November 1, 1985, Broward County filed an application with the Department of Environmental Regulation (Department) for a solid waste construction permit, and on August 23, 1985, an application for a dredge and fill permit. The permits would have allowed Broward County to construct a Class I landfill in southwestern Broward County, Florida. On April 19, 1986, the Department gave notice of its intent to issue the requested solid waste permit, and on November 13, 1986, gave notice of its intent to issue the dredge and fill permit. Petitioners filed a timely request for formal hearing on each permit, and their petitions were consolidated for hearing.

      
      

      BACKGROUND

      
      

   2. In 1981, Broward County engaged the consulting engineering firm of Malcolm Pirnie, Inc., to evaluate the technologies that were available to handle the county's solid waste disposal needs and to recommend the most appropriate technology for Broward County. Malcolm Pirnie eventually recommended two mass- burn facilities (resource recovery facilities), together with an interim and contingency landfill. The resource recovery facilities, one to be located in north Broward County and one to be located in south Broward County, have been approved, but are not yet constructed. These proceedings involve the siting of the recommended landfill.

      
      

   3. Solid waste generated by the approximately 600,000 residents of south Broward County is presently disposed of at the Davie landfill. The Davie landfill is scheduled to be closed by December 31, 1987, or sooner if capacity is reached. The interim and contingency landfill that is the subject of these proceedings is designed to serve as a replacement for the Davie landfill until the South Broward Resource Recovery Facility comes on line in 1988 or 1989, and as an alternative disposal site for that facility once it becomes operational.

      
      

      THE PROJECT SITE

      
      

   4. The site for the proposed landfill consists of approximately 588 acres in southwestern Broward County. The site is owned by Broward County, and is located adjacent to and east of U.S. Highway 27, between Sheridan Street and the theoretical extension of Stirling Road. The Broward County Correctional Institution is located adjacent to the site at the southeast, and the rest of the eastern boundary of the site abuts undeveloped land. Single family homes are located to the north and northeast of the site. Everglades Conservation Area 3-A is located at least 3,800' west of the site, and is separated from the site by U.S. 27 and a buffer strip. South of the site is an area of undeveloped land that is presently zoned as an 1,800-acre Planned Unit Development (PUD). Part of this mixed commercial, industrial and residential PUD is a 500-acre nature preserve that will be located directly south of the proposed landfill. Currently, the only development to the south is a rock-mining operation.

      
      

   5. The proposed site is part of the South Florida Water Management District's Canal C-11 basin. The El Rancho Canal bisects the site north to south, and connects with the C-11 canal north of the site. Bisecting the site east to west is a Florida Power & Light Company (FP&L) easement. Broward County proposes to develop 228 acres north of the easement for waste Aye disposal, and

      34.5 acres south of the easement to include a weighing station, administration building, and potentially a resource recovery facility and ash residue landfill. Site Selection

   6. Following Malcolm Pirnie's recommendation to Broward County that it construct two resource recovery facilities and an interim/contingency landfill to handle its solid waste disposal needs, Broward County requested the same firm to evaluate five potential landfill sites. Factors in the evaluation included access to the site, waste transport costs, and environmental and regulatory considerations.

      
      

   7. Out of the five landfill sites, a site in unincorporated Broward County adjacent to the existing Davie landfill was ranked as most appropriate, and the proposed site as the second most appropriate. The Davie site was subsequently eliminated from consideration when it was annexed by the Town of Davie.

      
      

   8. Before final site selection, the Broward County Planning Department re- evaluated all potential landfill sites in the county. Out of 97 possible sites, only one new site was identified as acceptable. Subsequent to its identification, however, this site was annexed by a municipality and rezoned to prohibit its use as a landfill. Broward County judicially contested the annexation and the rezoning, but both were upheld.

      
      

   9. The proof established that the selection of the 588-acre site for the proposed landfill was appropriate and the search for alternative sites exhaustive and thorough. The site has easy access for disposal trucks, has minimal or no adverse impact on the nearest residential neighborhoods, and is the most economically feasible. Moreover, the site is not, as discussed infra, environmentally sensitive.

      
      

      SOLID WASTE SITING, DESIGN AND PERFORMANCE CRITERIA

      
      

   10. The landfill will be constructed with a composite double liner system consisting of an 80 nil unreinforced high density polyethylene (HDPE) synthetic membrane for the primary liner and a 40 nil HDPE membrane for the secondary liner. The integrity of these materials will not be adversely affected by the lechates generated from municipal solid waste, nor will their integrity be adversely affected by blasting in the area to create cover material for the landfill. As proposed, the liner system will allow little or no leakage or lechate to the environment, and its design will exceed the criteria established by Rule 17-7.050(4), Florida Administrative Code.

       
       

   11. The proposed landfill design will include a lechate collection system along the landfill slopes and above the primary liner, and a secondary lechate detection/collection system located between the primary and secondary liners. Lechate from the collection system will be trucked off-site to a sewage treatment plant for disposal. As proposed, the lechate collection system will meet or exceed the requirements of Rule 17-7.050(4), Florida Administrative Code.

       
       

   12. The proposed landfill will include a gas collection system which will collect methane gas expected to be generated by the landfill. The gas will be collected at a central facility which will either burn it or recycle it. As proposed, the gas collection system will meet or exceed the requirements of Rule 17-7.050(4), Florida Administrative Code.

       
       

   13. The groundwater monitoring plan proposed by Broward County provides reasonable assurances that water quality standards will not be violated by the landfill operation. There will be nine clusters of monitoring wells around the boundary of the waste disposal area. Each cluster will consist of three wells

       to monitor the upper, middle, and lower part of the aquifer. The monitoring wells will be sampled quarterly, and should detect any groundwater contamination that might occur. Since it would take over four years for any contaminant to reach the nearest drinking water well, Broward County will have ample opportunity to implement any remedial measures necessary, such as the installation of intercaptor wells, to prevent any contamination of the ground water at the surrounding wells. As proposed, the monitoring well system meets or exceeds the criteria of Rules 17-7.050(5) and 17-4.245, Florida Administrative Code.

       
       

   14. The proof establishes that none of the prohibitions established by Rule 17-7.040, Florida Administrative Code, will be violated by this project. The proposed landfill design includes the filling of the El Rancho Canal which bisects the site, and the creation of a wetland area to the east of the existing canal. The proposed solid waste disposal area will be 250 feet from this wetland area, which is the nearest water body to the site. The nearest Class I waters of the state are over 18 miles from the proposed site. The nearest private drinking water well is 2,450 feet from the proposed solid waste disposal area.

       
       

   15. Upon final completion of each phase of the landfill, Broward County will cover the cell with approximately two feet of soil overlaying an impermeable cap. This cover will prevent further generation of lechate by prohiviting rainfall from entering the completed landfill. Broward County will plant vegetation on the closed landfill to stabilize the area and prevent erosion. The master end use plan for the landfill proposes to convert the closed area into a park. The closure plan meets or exceeds the criteria of Rule 17-7.070, Florida Administrative Code.

       
       

   16. As part of the storm water management system, Broward County proposes to construct a perimeter swale system around the landfill cells to capture stormwater runoff from the inactive areas. The captured stormwater will remain separate from the lechate and will not contact any solid waste. The Department has delegated its Management District (SFWMD) pursuant to Rule 17-25.090(1), Florida Administrative Code. The SFWMD has approved this stormwater system and issued a permit approving it on July 10, 1986.

       
       

   17. Finally, pursuant to Rule 17-7.050(2)(c), Florida Administrative Code, Broward county has established that the site is easily accessible from a major thoroughfare, U.S. 27; is properly zoned; has an adequate quantity of cover material; and provides sufficient protections against any water pollution that may originate on site. The site is not located in an area that is envisioned for future public potable water wellfields, nor is the landfill within the regulated and protected well field protection zones of Broward County.

       
       

       JURISDICTIONAL DETERMINATION

       
       

   18. The Department's dredge and fill jurisdiction extends only to enumerated waters of the state as described by Rule 17-12.030, Florida Administrative Code. The proper methodology for determining the landward extent of those waters is set forth in Rule 17-4.022, Florida Administrative Code.

       
       

   19. The first step in determining the extent of the Department's jurisdiction is to ascertain whether the area in question contains a water body connected to those waters of the state enumerated in Rule 17-12.030, Florida Administrative Code. If such a connection exists, the next step is to determine the landward extent of the waters of the state. This is generally accomplished

       by moving landward from the waterbody, and conducting a visual examination of the vegetation for dominance of the jurisdictional species listed in Rule 17- 4.022, Florida Administrative Code.

       
       

   20. In this case the Department's jurisdictional evaluation section correctly concluded that the El Rancho Canal and its associated ditches, which abut the site, are waters of the state because they connect to the C-11 canal and hence to the South New River. From these waters, the Department's biologists moved landward and visually identified those areas where jurisdictional vegetation was dominant. The Department's conclusion that 9.38 acres of the 588-acre site are jurisdictional, based on its visual identification of dominant vegetation, is supported by the proof and credited.

       
       

   21. Petitioners have argued that the Department's jurisdictional analysis was flawed because it did not consider hydric soils or meteorological conditions, that areas of the site were periodically flooded, that transact and quadrat analysis was not performed by the Department, and that chopping, burning or cattle grazing on the site would interfere with the visual determination. 1/ These arguments are without merit.

       
       

       1. Soils

          
          

          Hydric soils may be considered by the Department in determining jurisdiction in two circumstances. If the applicant disagrees with Department's jurisdictional determination, it may request a soil analysis. In this case, no such request was made. Soils may also be considered as "other evidence" of wetlands character if the first three parts of the vegetative test for transitional species set forth in Rule 17-4.022(1)(b)(4), Florida Administrative Code, are met. No evidence was presented to show that these three tests were met. Consequently, no soil analysis was made by the Department, and none was required.

          
          

       2. Meteorological Conditions

          
          

          The Department does not consider meteorological or hydrologic conditions in deciding when to do site visits. The purpose of using the vegetative index is that it is a long-term indicator of wetlands which will not change in response to periodic rain fall or flooding. No evidence was presented to show that the Department was required to consider meteorological conditions or that the jurisdictional determination would have changed if this had been considered.

          
          

       3. Water Levels On Site

          
          

          Evidence was presented that water levels on site are variable, and that some areas are periodically flooded. However, the Department does not base its jurisdiction on the presence of water. Jurisdiction is based on the landward extent of enumerated water bodies as determined by vegetation. Areas outside of water bodies which are not dominated by wetlands vegetation are not jurisdictional. Isolated areas which are surrounded by uplands vegetation are not jurisdictional even if they are inundated by water. No evidence was presented to show that any areas outside of the El Rancho Canal and associated ditches are water bodies for purposes of the Department's jurisdictional evaluations.

       4. Transect and Quadrat Analysis

          
          

          Petitioners suggest that the Department's jurisdictional determination was unreliable because it was based on visual inspection instead of quantitative methods. However, visual inspection is the preferred method of determination under the Department's rules. While Rule 17-4.022(1)(c), Florida Administrative Code, allows the Department to use quantitative methods, such methods are to be used only when a visual determination cannot be made. In this case, the jurisdictional evaluation section had no difficulty in making a visual determination. No evidence was presented to show that the Department should have used quantitative methods to determine jurisdiction, or that the jurisdictional determination would have changed if such methods had been used.

          
          

       5. Site Alterations

       
       

       The proof established that there were no artificial conditions on the site which prevented the Department from making a visual determination of the dominant species of vegetation. No evidence was presented to show that any chopping, burning, seeding or grazing of the site prevented an accurate determination of vegetation.

       
       

       DREDGE AND FILL CRITERIA

       
       

   22. The proposed landfill site supports many wetland plant species such as sawgrass, primrose, duck potato, arrowhead, whitetop sedge, wax myrtle, and rushes. However, the jurisdictional evaluation conducted by the Department established that the site is dominated by upland species such as St. John's wort, giant plume grass, bald rush and beak rush. Many areas containing wetland species were isolated from waters of the state due to the preponderance of upland species in the waterward zone. The proof established that only 4.63 acres on the site are jurisdictional wetlands with respect to the Department's dredge and fill permitting requirements, end that jurisdictional canals and ditches make up another 4.75 acres.

       
       

   23. The proof further establishes that 4.12 acres of healthy, productive wetlands will be adversely effected by the proposed project. The remaining 5.26 acres of jurisdictional wetlands are either not impacted by the project, or of little or no value as habitat.

       
       

   24. In evaluating whether or not a project is permittable, the Department must examine the expected impacts on jurisdictional waters and wetlands and determine whether the applicant has provided reasonable assurances that water quality standards will not be violated and that the project will not he contrary to the public interest. In this case, Broward County has provided reasonable assurances that water quality standards will not be violated and that the project will not be contrary to the public interest.

       
       

   25. In determining whether an applicant has provided reasonable assurances that the project is not contrary to the public interest, the seven criteria enumerated in Section 403. 918(2)(a), Florida Statutes, must be considered and balanced. These criteria are:

       
       

       1. public health, safety or welfare or property of others;

       2. conservation of fish and wildlife;

       3. navigation, flow of water, erosion or shoaling;

       4. fishing, recreational values or marine productivity;

       5. temporary or permanent nature;

       6. historical and archeological resources;

       7. current condition and relative value of functions performed by affected areas.

       
       

   26. The project will have no effect on the conservation of fish and wildlife, navigation, flow of water, erosion or shoaling, fishing, recreational values or marine productivity. There is no reason to believe that the proposed project will have any effect on historical and archeological resources, but should such resources be discovered the proposed permit requires that they be protected. The project is of a permanent nature, as is the mitigation project. The project will have no negative effects on public health, safety or welfare, or the property of others. The current condition and relative value or functions performed by effected areas are nominal.

       
       

       MITIGATION

       
       

   27. The Department's mitigation policy at the time that the application was complete required replacement of destroyed wetlands on a two for one area basis. The current Department policy calls for a case-by-case determination of the permittability of a project, and if the project is not permittable then mitigation of approximately a one-to-one area basis is considered. The proposed mitigation plan for this project fulfills the requirements of both the old and the new policies.

       
       

   28. A type-for-type, 2:1 mitigation area of 3.36 acres will be constructed on the east end of the site. The area will be a flow-through wetland ranging in width from 30-250 feet vegetated with native plant species such as sawgrass, thereby enhancing water quality and improving habitat. The mitigation area will connect at both ends to the north-south secondary canal (the El Rancho Canal) which flows into the C-11 canal to the north of the site. Water quality on site and in adjoining waters will be improved by filling in the existing canal and replacing it with the broad, shallow wetland. Broward County will execute a conservation easement to the Department over the 8.36 acre mitigation area to ensure its perpetual preservation. Broward County will be required to monitor the mitigation area to ensure at least 90 percent survival of the planted vegetation.

       
       

       CONCLUSIONS OF LAW

       
       

   29. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of, these proceedings.

       
       

   30. The evidence adduced at the hearing established that the construction and operational safeguards for the proposed landfill are technically sufficient for the welfare and protection of the citizens of Florida. The construction, operation and location of this landfill are expected to produce minimal adverse impacts on human health, the environmental, the ecology of the land and its wildlife, and the ecology of state waters. The proposed landfill meets or exceeds all of the criteria of Chapter 403, Part IV, Florida Statutes, and Rule 17-7, Florida Administrative Code.

       
       

   31. The evidence further established that the proposed project will not violate water quality standards contained in Chapter 17-3, Florida Administrative Code, and that the proposed project will not be contrary to the public interest as defined by Section 403.918(2)(a), Florida Statutes.

   32. The evidence adduced at the hearing established that the landfill site had been altered by man for agricultural purposes before it was purchased by Broward County. However, it was not shown that Broward County or any other person illegally altered any jurisdictional area. As was stated in Manasota 88, Inc. v. Wilbur Boyd Corp. and State of Florida Department of Environmental' Regulation, 9 F.A.L.R. 644 (Jan. 15, 1987):

       
       

       If the site has been altered in a manner which did not require an environmental permit, DER looks at the land as it presently exists, for both jurisdictional purposes and to determine its form, function

       and viability for mitigation purposes.

       * * * [T]he issue of whether certain

       alleged unpermitted activities took place on the property is not relevant to a permitting proceeding such as this, especially when the need to obtain a permit for these activities was not even clearly established.

       
       

       Consequently, jurisdiction was properly based on the existing condition of the proposed site.

       
       

   33. The evidence adduced at the hearing showed that the jurisdictional determination performed by the Department was in accordance with its rules and procedures. While methods other than visual inspection could have been used, none were required by Rule 17-4.022, Florida Administrative Code. There was no evidence that Broward County requested other methods be used, that the Department felt that other methods were necessary, or that the jurisdictional determination was inaccurate.

RECOMMENDATION

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

That the solid waste permit and the dredge and fill permit sought by Broward County be ISSUED.

DONE AND ORDERED this 18th day of May, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1987.

ENDNOTE

1/ Historically, most of the landfill site was sawgrass marsh. Its character has, however, been altered over the past decades by the construction of U.S. 27 and its isolation from the marsh system west of that highway. Within the past decade, the area has been further altered by man for agricultural pursuits. No Department permit is, however, required to allow cattle grazing, the seeding of pasture grasses, or the burning of land for agricultural purposes.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-1860 & 86-4894

Petitioners' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 4.

2. Addressed in paragraph 5.

3-6. To the extent relevant, addressed in paragraph 21. 7-8. Addressed in paragraphs 18-21.

Broward County's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 3.

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1, 4 and 5.

2. Addressed in paragraphs 2 and 3.

3. Addressed in paragraph 1.

4. Addressed in paragraphs 3 and 9.

5. Addressed in paragraphs 2 and 6-9.

6. Addressed in paragraph 17.

7. Addressed in paragraph 10.

8. Addressed in paragraph 11.

9. Addressed in paragraph 12.

10. Addressed in paragraph 13.

11. Addressed in paragraph 17.

12. Addressed in paragraph 14.

13. Addressed in paragraph 15.

14. Addressed in paragraph 16.

Brion Blackwelder, Esquire Titone, Roarke, Blackwelder

& Titone

7471 West Oakland Park Boulevard Lauderhill, Florida 33319

Clifford A. Schulman, Esquire Sheila F. Wolfson, Esquire Greenberg, Trawig, Askew,

Hoffman, Lipoff, Rosen & Quentel, P.A.

1401 Brickell Avenue

Miami, Florida 33131

Christopher D. McGuire, Esquire Douglas M. Wyckoff, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee Florida 32399-2400

Oale Twachtmann, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

Thin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 86-001860

Orders for Case No: 86-001860