STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COASTAL ENVIRONMENTAL SOCIETY, )
)
Petitioner, )
)
v. ) CASE NO. 89-1939
)
GATE PETROLEUM COMPANY and ) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
This cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer on July 17, 1989 in Jacksonville, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: Janice Whatley
Executive Director
Coastal Environmental Society, Inc. Post Office Box 26061 Jacksonville, Florida 32218
For Respondent G. Stephen Manning, Esquire Gate Petroleum Rogers, Towers, Baily, Jones & Company: Gay, Attorneys at Law
1300 Gulf Life Drive, Suite 800
Jacksonville, Florida 32207
For Respondent William H. Congdon, Esquire State of Florida Assistant General Counsel
Department of Department of Environmental Regulation Environmental 2600 Blairstone Road
Regulation: Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the Respondent Gate Petroleum Company (Gate) has provided reasonable assurances that Water Quality Standards will not be violated by the proposed modification of Gate's dredge and fill permit No. 160462149 and whether Gate has provided reasonable assurances that the proposed modification of that permit will not be contrary to the public interest, nor be the occasion of adverse cumulative impacts to water quality or public interest considerations so as to make this project contrary to the public interest.
PRELIMINARY STATEMENT
This proceeding concerns a challenge brought by the Petitioner, Coastal Environmental Society, Inc. (CES) to the Department of Environmental Regulation's (DER) preliminary approval of the requested modification of Gate's existing dredge and fill permit No. 160462149 (permit). The requested modification involves a proposed "T-head pier" to be constructed on the southeast side of Blount Island in Duval County adjacent to the Blount Island Channel of the St. Johns River. The proposed pier would be used for berthing and testing of two ships of the United States Navy Military Sea-Lift Command, in conjunction with the mission of the Navy's Rapid Deployment Force. The proposed berthing facility would consist of the T-head pier, a breasting dolphin, cat walk and two mooring dolphins. The pier would be connected to the upland by an approach trestle constructed on concrete piles, which would support concrete decks and caps. The project would involve the dredging of approximately 7,100 cubic yards of material from the bottom of the Blount Island Channel. The quantity to be dredged is substantially less than that allowed by the existing permit, in conjunction with the presently permitted, but not yet constructed, shoreline bulkhead. The dredge material is proposed to be removed by hydraulic pipeline and "cutter head" dredge. The spoil material thus dredged will be disposed of in a diked area known as the Dayson Spoil Site located near the mouth of Clapboard Creek at its confluence with the Blount Island Channel of the St. Johns River. Effluent from the disposal site would be discharged into the main river channel of the St. Johns River at the "Fulton-Dames Point Cut." Clapboard Creek, the Blount Island Channel, and the Fulton Dames Point Cut area of the St. Johns River are classified as Class III waters of the state pursuant to Chapter 17-3, Florida Administrative Code. The proposed modification also involves the elimination of the present permit requirement to monitor for copper at the site of the effluent discharge in the Dames Point Cut.
The cause came on for hearing as noticed, at which the Respondent Gate Petroleum Company presented the testimony of J. Ronald Ratliff; Thomas A. Nantia; Randall Mock, accepted as an expert in the construction and design of waterfront piers and docks; Richard Jenkins, accepted as an expert in certified water depth surveys or marine surveys; Scott Hilaman; John Hamer; Dr. Allyn Quinton White, accepted as an expert in marine biology, Manatee habitat and Manatee behavior; Steven Berry, accepted as an expert in dredging and the impacts of dredging on water quality; Dr. Allan W. Niedoroda, accepted as an expert in oceanography, hydrographic and hyrdrologic assessments; and Gary H. Tourtellotte, accepted as an expert in marine biology and estuarine coastal ecology. Respondent's Exhibits 1-20 were admitted into evidence.
The Department presented the testimony of Kevin Pope, accepted as an expert in wetlands ecology, the assessment of impacts of dredge and fill projects and in the application of Department regulations to such dredge and fill projects.
DER's Exhibit No. 1 was admitted into evidence as well. The Petitioner CES presented the testimony of Dr. David Neal Boehnke, accepted as an expert in the field of water chemistry as well as the deposition of Dr. Carole DeMort, a marine biologist. CES submitted two late-filed exhibits consisting of a report of Dr. Boehnke and a sworn statement by Reyn Schuttler, a contracting officer for the United States Navy Military Sea-Lift Command. Petitioner's Exhibit No.
1 was admitted into evidence.
The parties elected to obtain a transcript of the proceedings at the conclusion of the hearing and to file proposed findings of fact and conclusions of law in the form of proposed recommended orders. Those pleadings were timely
filed and have been considered in this recommended order. They are also addressed in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Respondent Gate Petroleum Company, by and through its wholly-owned subsidiary, Gate Maritime Properties, Inc., proposes to construct a ship- berthing facility for two ships adjacent to Blount Island Channel, along the southeastern portion of Blount Island, in the St. Johns River, in Duval County, Florida. The proposed facility would provide for the berthing of two ships of the United States Navy Military Sea-Lift Command in conjunction with the mission of the Navy's Rapid Deployment Force. The proposed facility would be located along the southeasterly portion of "Cut A" of the Blount Island Channel and will consist of a "T-head Pier", a breasting dolphin and cat walk and two mooring dolphins. The pier would be connected to the land by an approach trestle. The facility involved will be constructed by the insertion of concrete pilings into the bottom of the Blount Island Channel and in the adjacent upland, which would support concrete decks and caps.
Removal of dredged material will be necessary to accomplish the project and will be performed by a floating hydraulic dredge with associated "Cutter Head." The resulting dredged material would be disposed of in a diked spoil area on either Blount Island or at the Dayson Spoil Site adjacent to the mouth of Clapboard Creek.
The Respondent Gate currently holds a DER dredge and fill permit, No. 160462149, authorizing the removal of approximately 3.4 million cubic yards of dredged spoil and the installation of an associated 5,000 feet of shoreline bulkhead. The proposed installation of the pier and mooring facilities would result in a modification of that permit so that approximately 1,000 feet of shoreline bulkhead and most of the related dredging will be unnecessary and not performed. Instead, approximately 7,100 cubic yards of dredging would be necessary, without the necessity for bulkheading. The remaining shoreline bulkhead and dredging authorized under the above permit would be rendered unnecessary and replaced by the addition of two additional T-head piers and associated dredging at some indefinite time in the future. The additional piers and dredging are not involved in this permit modification application and are not before the Hearing Officer at this time.
The Blount Island Channel of the St. Johns River, the St. Johns River and Clapboard Creek are classified as Class III surface waters of the state pursuant to Sections 17-3.081 and 17-3.121, Florida Administrative Code.
It has been established by stipulation of the parties that the proposed modification of the dredge and fill permit will not adversely affect navigation nor the flow of water in the Class III state waters involved. It is also stipulated that the proposed modification will not adversely affect historical and archaeological resources pursuant to Section 267.061, Florida Statutes.
It is stipulated as well that the discharge of effluent from the Dayson spoil site will not violate water quality standards at the point of discharge in the Fulton-Dames Point Cut.
On March 22, 1989, the Florida Department of Environmental Regulation issued its intent to approve the proposed permit modification so as to allow the elimination of the previous requirement in the permit to monitor for copper at the site of the effluent discharge; the relocation of the Blount Island spoil
site effluent discharge and the construction of a T-head pier on the southeast side of Blount Island adjacent to the Blount Island Channel. The Department did not initially grant the request to relocate the Dayson spoil site effluent discharge from the Corps of Engineer Channel (Dames Point Cut) to the mouth of Clapboard Creek.
On January 31, 1986, Gate was issued permit No. 160462149, pursuant to Chapters 403 and 253, Florida Statutes, with an expiration date of January 31, 1991. It authorizes the dredging and filling on and adjacent to Blount Island referenced above. The permit authorizes those operations in two phases, consisting of new dredging of approximately 300,000 cubic yards in the existing slipway and test area to obtain a project depth of 40.2 feet mean low water. Maintenance dredging was authorized in the amount of approximately 1,850,000 cubic yards in the slipway to maintain the above-noted project depth. New dredging of no more than 3 million cubic yards from the northeastern and southern margins of Blount Island to a depth of 38 feet mean low water (MLW) and
20 feet MLW on the northeastern and southern portions of Blount Island respectively, with attendant maintenance dredging, was authorized. The permit also allowed he construction of shoreline bulkheads along the eastern and southern margins of Blount Island.
That 1986 permit also required disposal of dredged material from both phases of the project into diked areas on Blount Island and the existing diked off-site disposal area known as the Dayson Site, near the mouth of Clapboard Creek. Effluent from both sites was to be discharged to the Fulton-Dames Point Cut. Effluent from the Dayson site was to be discharged to the Fulton-Dames Point Cut or routed by pipeline to the Blount Island disposal site for additional treatment prior to discharge.
All dredging under the 1986 permit was to be done via a suction, cutter-head dredge apparatus, with the speed of the cutter-head to be controlled so as to prevent excessive turbidity; and with all dredged material to be placed in diked areas, with the effluent discharge being conducted over adjustable weirs. The dredging of the approximately 7,100 cubic yards of material associated with the modification application at issue will be performed with the same type of equipment. Both spoil disposal sites have sufficient capacity for disposal of the material involved with the construction of the T-head pier.
The effluent or "de-watering water" generated from the disposal of the dredged material at the Dayson on site will be discharged through a pipe under the St. Johns River to a point near the confluence of the Dames Point Cut and the Old River Channel. That material will consist of approximately 10 percent dredged solid material and 90 percent water.
The Dayson disposal site is surrounded by dikes 24 feet high and 120 feet wide at their base. They are so constructed that there will be no discharge of effluent from the Dayson disposal site to Clapboard Creek.
Since 1974, over four and one-half million cubic yards of material have been disposed of at the Days on site without any violation of state water quality standards in the creek or the adjacent salt marsh. The entire 7,100 cubic yards of dredged material, together with related water could be placed in the Dayson disposal site without causing any discharge.
Gate Maritime Properties, Inc. has a five-year lease agreement with Leadermar, Inc. which will operate the T-head pier as a berthing facility for the two ships. The lease was scheduled to commence July 22, 1989. Under the
terms of the contract awarded by the Navy to Leadermar, Inc., Gate, or its lessee, is required to maintain a 110 foot, safe working area surrounding the vessels for operation of tugs, lighterage vessels and fendering operations. The contract with the Navy does not require, however, that the safe working area be maintained at a depth of minus 32 feet "mean lower low water" as shown by Gate Exhibit 6 in evidence. 1/ Given the findings made infra., concerning the lack of adverse water quality or public interest impacts caused by the dredging, and the paucity of any attendant suspension of bottom materials in the operation of the ships to be berthed at the proposed facility, the issue of whether the contract with the Navy requires a depth of minus 32 feet "mean low water" or "mean low low water", a reputed difference of 1.03 inches according to the rebuttal exhibit of Respondent Gate, neither Gate's position nor the Navy's reputed position regarding this apparent contractual dispute item, if carried out, would have any adverse water quality or public interest impact in the context referenced in these findings of fact and conclusions of law.
The fact remains that Gate has applied for authority to recede from the massive dredging project presently authorized in the existing permit, to stipulate by this modification application that it only seeks to dredge 7,100 cubic yards of material in the area involved. Based upon the depth established by the marine survey conducted by Bennett, Wattels and Associates, there will be an adequate safe working area for tug boats, fuel barges and lighterage vessels, as well as the ships themselves, for operations involving the berthing facilities. See Gate Exhibit 5 in evidence.
If the requested modification is granted, Gate will not dredge more than 7,100 cubic yards of material for construction of the pier and related facilities and in order to provide a safe working area as required under Leadermars contract with the Navy. Indeed the amount of material to be dredged for the construction and operation of the T-head pier was based upon the above- referenced Marine survey, unrefuted evidence in this record. The volume of material was calculated by using the Marine Survey depths and the "average end area method," a widely accepted method of such calculation in the marine engineering and construction field. Further, Gate adduced the only substantial evidence in this record concerning the issue of the amount of dredging involved or the extent of the dredged area, as that relates to the "safe working area" and other issues.
Water Quality
Gates' consulting experts performed various chemical and sediment analyses in the project area in order to establish a general composition of bottom sediments and to establish the likelihood of suspension of any toxic substances or pollutants in those sediments as a result of the dredging operation or the operation of the ships and berthing facilities. Those analyses, and their results, in evidence in this record, were unrefuted. The bottom sediments in the vicinity of the project area are predominantly fine sand with small fractions of silt. In general, the dredged material is most likely to be free from chemical or biological pollutants where it is composed of sand, gravel or other naturally occurring inert materials, as opposed to large percentages of organic materials, which were not shown to exist in the vicinity of the project site. Based upon the characteristics of the bottom sediments in the project area, there will be no re-entrainment of toxins or pollutants which night presently be sequestered in the sediments due to construction, dredging operations or the operations of the berthing facility and ships involved.
An elutriate test was performed to predict the effect on water quality from temporary suspension of the bottom sediments during the dredging operation itself. Elutriate testing is a widely recognized, conservative estimate of contaminant releases, caused by dredging, into a water column. The parameters tested for are those specified in the Department's rules for Class III waters and include cyanide, mercury, silver cadmium, selenium, barium, beryllium, nitrogen, (unionized NH3, NO2, total TKN), fluoride, copper, iron, nickel, zinc, aluminum, pesticides, herbicides and PCBs (polychlorinated biphenyls). The elutriate test results did not reveal any excess ion of any of these parameters in terms of the state water quality standards or as to prevailing natural background levels. There are no PCBs, hydrocarbons, heavy metals or pesticides shown to be sequestered in the bottom sediments of the Blount Island Channel in the vicinity of the proposed project.
The chemical analyses was performed on composite elutriate samples of sediments which came from the area of the T- head pier location and the area north of the pier, where the propellers of the ships will be located and operated during test trials, after the ships are berthed at the site. Site specific chemical analyses and core borings were taken and compared with historical data or studies for these sites and found to be consistent with them. There is no likelihood of sequestered contaminants in the bottom sediments which would be released, with deleterious effect on water quality, as a result of the action of the dredge equipment or the operation of the ships after the facility is installed.
Cutter-head, hydraulic pipeline dredges are not significant generators of turbidity. They are an efficient means of performing dredging and are designed to loosen and remove material from the bottom substrate, without disturbing or redistributing the dredged material around the dredge apparatus in the water column. The use of the hydraulic pipeline dredge will result in minimal water quality disturbance and any dredge-induced turbidity will be of a transitory, short-term nature. It would be localized in the immediate vicinity of the dredge's cutterhead in any event. Ambient water quality conditions can be expected to return to normal background levels in a matter of hours following cessation of the dredging activity. It is estimated by Gate's consultant witnesses that the dredging activity might be accomplished in approximately one day. It has thus been established that the relevant stage water quality standards will not be violated by the action of the dredging equipment and the dredging operation itself.
Water Quality Impacts of Facility Operation
The two ships of the military sealift command which are to be berthed at the proposed T-head pier are 948 feet in length and approximately 105 feet in beam. They are equipped with two main engines and two propellers. The propellers are 22 feet, 11 and 9/16 inches in diameter. The ships will be in what is known as "reserved operating status". The ships will go through a dry- docking procedure at a local shipyard approximately every two years for major overhauls, repairs and painting. Such maintenance work will not be performed at the project site. The ships will, however, undergo periodic "dock trials" while berthed at the facility. The dock trials will be conducted on a quarterly basis if the vessels have not been out on a mission in that quarter of the year.
The dock trial procedure calls for the main propulsion powerplants of the ships to be put into operation and evaluated. Both main engines are tested under this procedure for approximately one hour, at ten revolutions per minute (rpm) ahead and astern. The tests are to be conducted by civilian personnel
retained by the Navy or its contractor, with all appropriate safety precaution being taken. These include, but are not limited to, the manning of the bridge during tests by a master or chief mate and by rotating one engine ahead simultaneously with the other engine being rotated astern. The ships are also equipped with onboard, internal sewage treatment plants so as to prevent the discharge of pollutants to state waters. Only routine maintenance or repair work will be performed on the ships at the lay birth facility. The ships will be refueled at the facility from time to time with "bunker c" or diesel fuel brought in by barges. The barges will be conveyed by tugboats of no more than
16 feet draft. The fueling operation will be governed by the U.S. Coast Guard regulations and are performed by Coast Guard certified and licensed personnel.
Dr. Neal Boehnke was accepted as an expert in the field of chemical analysis of water and testified on behalf of the Petitioner. In his opinion, water quality in the facility of the proposed project is poor and may contain elevated hydrocarbon levels. His opinions, however, are based upon 1982 and 1983 reports of sampling results allegedly obtained by the City of Jacksonville Bioenvironmental Services Division and the DER, as well as the study entitled "Survey of Hydrocarbons and the Lower St. Johns River in Jacksonville." These documents were not introduced into evidence. While it is true that an expert may base his opinion on facts and data made known to him in the normal course of his practice at or before trial and that those facts or data may be relied upon by him in formulating his opinions, it must be demonstrated that those facts and data are "of a type reasonably relied upon by experts in the subject to support the opinions expressed." See Section 90.704, Florida Statutes. In this proceeding, it was not established by competent evidence or testimony at hearing that the facts or data derived from these documents were of such a type as to be encompassed by this statutory section and thus they cannot serve as a legitimate basis for Dr. Boehnke's opinion. They otherwise constitute inadmissible hearsay, not sufficient to support a finding of fact on the water quality impacts from the proposed project and they do not constitute corroborative or explanatory hearsay related to any accepted, competent, substantial evidence in this record for purposes of the hearsay admissibility provision in Section 120.58, Florida Statutes. Therefore, Dr. Loehnke's opinion concerning alleged elevated levels of hydrocarbons in the water at the project site is not credited and is rejected.
Dr. Allan Niedororda was accepted as an expert in the fields of oceanography, hydrology and hydrologic assessment. He conducted a study on the potential impact to water quality in the Blount Island Channel which might result from the dock trials to be carried out as a part of the routine maintenance and testing of the ships. His study evaluated the degree to which the propeller wash from the dock trials might entrain and transport bottom sediments, any related pollutants and the effect of this entrainment on water quality in the surrounding water column. His study consisted of field sampling and measurements of currents in the area, laboratory analysis and related data analysis. Bottom sediment samples from the project area were analyzed for particle size and grain size distribution according to standard, scientifically accepted procedures.
The bottom sediments in the area of the project site are characterized by a sandy sediment of a fine to medium particle size characteristic. The bottom sediments largely consist of clean sand and small gravels, with some silt composition.
The propeller wash which will be generated by the testing of the ships engines was computed to have a speed of approximately one half foot per second.
Maximum speed will occur about three propeller diameters behind the plane of the propeller itself or about 72 feet behind the propellers. The bottom tip of the propeller with which the ships are equipped will be six feet off the bottom of the channel at low tide. At the point the propeller wash contacts the bottom, its speed will be approximately two tenths of a foot per second. Such a velocity will not be of sufficient force to produce such sheer stress on the bottom sediments as to entrain them or, that is, to displace them upward into the water column. Dr. Niedororda established that, even if the propeller wash is added to the natural velocity of the water currents at the project site, there would be no entrainment of the bottom sediments which he sampled in the project area.
It has also been established that the routine, minor maintenance of the ships and dockage facilities involved in the permit application and the fueling and other operations associated with the berthing, testing, entry and egress of the ships from the proposed berthing facility will occasion no water quality violations, so long as appropriate Coast Guard regulations attendant to fueling and the prevention of the deposition of refuse and other wastes into the waters involved are observed. Any grant of the proposed permit modifications should be conditioned upon the strict observance of those regulations and procedures, especially with regard to the potential for spillage during fueling operations.
Public Interest Standards
Section 403.918(2), Florida Statutes provides that a permit may not be issued unless the applicant provides the department with reasonable assurances that the project is not contrary to the public interest. In determining whether this is the case, the Department must consider and balance the following criteria:
Whether the project will adversely affect the public health safety or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061;
The current condition and relative value of functions being performed by areas affected by the proposed activity.
It has been established by stipulation that the project will not adversely affect navigation or the flow of water and that the project will not adversely affect significant historical or archaeological resources.
Unrefuted evidence adduced by Gate and the Department have established that the project will not adversely affect the public, health, safety, welfare or the property of others, if the project is constructed, installed and operated as proposed in the modification application and as proved in this case. The conservation of fish and wildlife, including endangered or threatened species, or their habitats, as well as fishing and recreational values and marine productivity in the project area will not be adversely affected. No harmful erosion or shoaling will be caused by the installation or operation of the project facility.
In this connection, Dr. A. Quinton White, a member of the Board of Directors of the Petitioner, C.E.S., acknowledged in his testimony that the Manatee Protection Plan and Manatee Watch Program proposed to be inaugurated by Gate will adequately protect any Manatees frequenting the area. Manatees are an endangered species, but it has been established that the permit modification proposed, if installed and operated, will not adversely affect the conservation of Manatees or their habitat. The Petitioner adduced no evidence on this issue or any of the public interest criteria enumerated above.
The area at the project site is characterized by fairly firm consolidated bottom substrata, characterized by very few submerged grasses. Due to the sandy, hard bottom in the project vicinity, there is a paucity of marine grass upon which Manatee could feed. Consequently, Manatees do not and are not likely to frequent the area involved at the project site as that might reflect on the likelihood of their injury or destruction due to operation of the ships and any attendant vessels.
Dr. Niedoroda established that the project and the attendant operations of the ships will not cause harmful erosion or shoaling and witness Gary Tourtellotte, testifying for Gate, established that the effects of the construction and operation of the T-head pier on the benthic community and marine productivity in the vicinity of the project will not induce any adverse effect on those elements of the public interest standards involved. The Petitioner offered no credible or credited evidence of equivalent value which could contradict the evidence adduced by Gate on this aspect of the public interest standards.
It is true that dredging of the bottom substrata will temporarily eliminate the benthic community within the dredged area itself. It was established by expert testimony, however, that the benthic community will rapidly re-colonize itself with similar organisms to a naturally occurring degree within approximately 6-12 months. The benthic community in the project vicinity is of a low density nature, with a low diversity of organisms. Those organisms occurring in the project site area are estuarine, marine benthic species commonly associated with sandy or silty bottom substrates. Because the area to be dredged is quite small or approximately .25 acres, and the dredging operations will be of short duration, approximately one day, the dredging operations will not have a significant adverse effect on the benthic communities occurring in the project area or in the adjacent St. Johns River. The dredging associated with the project will likewise not have a significant long-term adverse impact on fisheries resources or marine productivity of the Blount Island Channel or the St. Johns River. This is because the area to be dredged is minimal in size and does not contain critical marine benthic habitat. The
turbidity generated will be minimal because the sediments are predominantly coarse sands and gravels. Because of this, any turbidity occasioned by the installation and operation of the proposed facility will be very brief and not of a sufficient significance as to violate water quality standards.
In view of the hydrologic analysis in evidence concerning propeller wash effects, the bottom sediments at the ship mooring area will not be entrained or suspended in the water column to any significant degree due to propeller operation of the ships. Thus the benthic community in the mooring area for the ships will not be disturbed due to currents created by the operation of the propellers. In a similar vein, it has been shown that the dredging and operation of the T-head pier and mooring facilities, including the attendant conduct of periodic dock trials and the entry and egress of the ships will not violate the water quality criteria for biological integrity. Indeed, the periodic dock trials are shown to have no impact on the benthic community, the fisheries or marine habitat involved at the project site. It was neither shown that the dredging associated with the construction of the pier and berthing facilities will have any adverse impact on fin fish or shellfish in the project area.
It has been established that the project will be of a permanent nature, but it has not been established that the current condition and relative value of the functions being performed by the areas affected by the proposed activity in terms of their functions as productive marine habitat, as furnishing fishing or recreational values and the like, will be adversely affected by the proposed project and attendant activity.
Deletion of Copper Monitoring Requirement
The 1986 permit authorizing the removal of approximately 3.4 million yards of dredged material with attendant extensive bulkheading in the Blount Island Channel requires also that Gate Monitor for copper every two weeks during discharges at the downstream boundary of the mixing zone for each point of a effluent discharge. Effluent from both the Blount Island and Dayson Disposal Sites is discharged into the Fulton Dames Point Cut. The Petitioner has stipulated that the discharge of effluent from the Dayson Spoils Site will not violate any water quality standard at that discharge point. Elutriate testing and other analyses submitted in support of the permit modification request to delete the copper monitoring requirement in the present permit have shown that there will be no violation of water quality standards as to copper, or any of the other water quality parameters involved due to any re-suspenions of bottom sediment during dredging. There will be no violation of water quality standards for copper, caused by the deposition of spoil, consisting of those bottom sediments, and the draining of effluent from the spoils site into the Dames Point Cut. The Department has independently verified the data submitted by Gate as a result of this testing and it has been established that there is no occurrence of any man induced pollutants in the sediments at the project site which will be deposited in the spoil site, (from which the effluent will be disposed of in the Dames Point Cut) which represents any elevation over natural background levels. The sediments to be dredged from the berthing area are not distinguishable from naturally occurring sediments and the copper values in the sediments to be dredged are no higher than those naturally occurring throughout the area. Thus there will be no adverse impact on the water quality occasioned by discharge of the effluent from the spoil site to the Dames Point Cut area due to copper occurring in the sediments or as to any of the other pollutants enumerated above.
Thus, there has been no demonstrated necessity to continue monitoring the effluent from the spoil site for copper. In this regard, the Petitioner presented no evidence at hearing concerning the issue of whether copper monitoring should be continued or not.
Cumulative Impact
Blount Island was created in the 1950's and 1960's by the filling of its area with spoil material during the U.S. Army Corps. of Engineers' construction of the Fulton-Dames Point Cut-Off Channel. Since that time, port facilities and an industrial complex have been constructed on Blount Island. It is one of the principle port facilities for the City of Jacksonville.
Under the 1982 DER dredge and fill permit issued to Off-Shore Power Systems, and later transferred to Gate in 1986, the developed area of the island adjacent to the original St. Johns River Channel (the Blount Island Channel) was required to be bulk-headed and the channel dredged to -38 feet MLW. The amount of material to be dredged in the old channel of the St. Johns River for construction of the vertical shoreline bulk head totalled approximately 3.4 cubic yards.
The T-head pier involved in this modification proceeding, if constructed, would replace 1,000 linear feet of that shoreline bulkhead authorized by the present permit and would substantially reduce the amount or quantity of material to be dredged.
Construction of the T-head pier, instead of the permitted shoreline bulkhead, will minimize dredging and the environmental impact of the facility.
Gate has elected to rescind its plans to construct the shoreline bulkhead along the eastern shore of Blount Island, as authorized under the existing dredge and fill permit. Gate instead intends to seek future modification of its existing dredge and fill permit to substitute at least 2 additional T-head piers for all of the shoreline bulk head authorized for the eastern shore of Blount Island. The construction of the additional T-head piers will require substantially less dredging than is authorized under the existing permit.
Instead of the 3.4 million cubic yards of dredged material authorized under the existing permit, associated with installation of the shoreline bulkhead, the amount of material to be dredged, if indeed 2 additional T-head piers were applied-for and constructed, would amount to only 269,000 estimated cubic yards, as opposed to the originally authorized 3.4 million. Kevin Pope, the DER witness, established that there are no other projects in the area, or reasonably expected to be located in the project area, which would create impacts in addition to or cumulative with the proposed permit modification project so as to create adverse water quality impacts or which would make this project, because of cumulative impact, contrary to the public interest.
There are no other dredge and fill projects in the area of the proposed T-head pier which would adversely impact the waters of the Blount Island Channel and the St. Johns River. The proposed modifications are shown not to likely cause any adverse environmental results and, in fact, will result in an environmental benefit as represented by the agreed-upon recession from the extensive dredging and bulkheading authorized by the present permit. No evidence was adduced by the Petitioner to contravene that adduced by Gate and the Department, which establishes the lack of any adverse cumulative impacts to
be occasioned by the proposed project, both as to water quality standards and the public interest standards involved in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
The Respondent-applicant, Gate Petroleum Company has the burden of proving entitlement to the permit modification in question by presenting a prima facie case of its entitlement to the requested modification supported by creditable and credited evidence. If the applicant accomplishes that task, the burden to go forward with countervailing evidence shifts to the Petitioner to prove the truth of the facts asserted in its petition. The applicant herein has made a prima facie showing of reasonable assurances that the various water quality and public interest standards will not be violated or adversely affected by a grant of the modification of the subject permit. It then remains for the Petitioner to adduce contrary evidence of equivalent quality which is sufficient to establish that the water quality standards will be violated or that the project, in light of the various public interest standards enumerated herein will be contrary thereto. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 779 (1st DCA 1981). This proceeding has arisen under and will be resolved by operation and application of Chapters 120 and 403, Florida Statutes, and Chapter 17-3, 17-4, 17-12, Florida Administrative Code.
It is governed procedurally by Chapters 28-5 and 22I-6, Florida Administrative Code. The parties have stipulated that Gate has provided reasonable assurances that the proposed modification of the dredge and fill permit number 160462149 will not adversely affect navigation, the flow of water, nor historical or archaeological resources as envisioned by Section 267.061, Florida Statutes. It has likewise been stipulated that the discharge of effluent from the Dayson Spoil Site involved in this proceeding will not violate water quality standards at the Discharge point in the Fulton-Dames Point Cut also known as the "Corps of Engineers Channel." Also, by agreement of the parties, and by operation of law, the Respondent, Gate Petroleum Company, is required in this modification proceeding only to provide reasonable assurances that the proposed modification will not result in violation of water quality standards and that the project will not be contrary to the public interest, rather than having to provide reasonable assurances with respect to the project or projects authorized by existing dredge and fill permit No. 160462149. See Friends of the Everglades Inc. v. Florida Department of Environmental Regulation, 496 So.2d 181 (Fla. 1st DCA 1986). In light of the parties' stipulations, which are accepted, the Respondent Gate has provided reasonable assurances of compliance with water quality standards and public interest standards in the above respects.
The preponderant weight of the creditable and credited evidence of record, as revealed by the above findings of fact, establishes that reasonable assurances have been provided that the proposed modification of the permit in question will not result in violations of water quality standards which are at issue nor be contrary to the public interest, when accomplished in the manner and for the reasons delineated in the above findings of fact. Gate has presented a prima facia case of its entitlement to the requested permit modification by competent, creditable evidence. The Petitioner has not provided contrary evidence of equivalent quality which is sufficient to establish that the water quality standards will be violated or that the project is contrary to the public interest as set forth with particularity in the findings of fact. Evidence presented by the Petitioner in the form of a deposition of Dr. Carol
DeMort and the testimony of Dr. Boehnke, to the effect that violations of Class III water quality standards might occur, or that the project may be contrary to a number of the public interest criteria contained in Section 403.918(2)(a) were shown to be essentially speculative and conjectural. It is legally insufficient to overcome Gate's showing that the proposed project does provide such reasonable assurances. Florida Department of Transportation v. J.W.C. Company, Inc., supra.
Thus, it has been established that the Respondent Gate Petroleum Company has provided reasonable assurance that the State Water Quality Standards for Class III surface waters discussed in the above findings of fact and enumerated in Chapter 17-3, Florida Administrative Code, will not be violated by the proposed modification of the Department's dredge and fill permit number 160462149 and by the installation of the facilities involved in that application and their operation. It has also been established that Gate has provided reasonable assurances that the proposed modifications of that dredge and fill permit and installation of the proposed facilities, and their operation, will not be contrary to the public interest, in accordance with the seven criteria enumerated at Section 403.918(2), Florida Statutes, as demonstrated by the above findings of fact.
Gate has provided reasonable assurances that the cumulative impacts of the proposed modification, and project contemplated in that modification application, when considered with other projects which are either presently authorized or reasonably expected to be authorized and located within the vicinity of the subject installation, will not cause an adverse cumulative impact so as to be violative of the public interest as envisioned in Section 403.919, Florida Statutes. In this connection, Gate has voluntarily agreed in this proceeding to recede from the extensive dredging and filling operations involving the 3.4 million cubic yards of dredging and extensive bulkheading authorized by the present permit. It has stipulated that it will not accomplish that project, but rather the project at issue, if this application is granted, which will supplant the construction and installation activities presently authorized by permit 160462149.
If, as Gate purportedly contemplates, it chooses to construct two additional T-head pier, mooring facilities similar to that one involved here at some time in the future, then such projects would, of necessity, be the proper subject of an additional application for a modification of the underlying dredge and fill permit with, of course, an attendant "point of entry" right for substantially interested parties. If the underlying dredge and fill permit has expired prior to the application to the Department for authority under the
above-cited statutes and rules to construct such facilities, then, of course, it would have to be accomplished by approval of new and separate dredge and fill permits. The grant of the modification of the permit involved in this proceeding should be conditioned on Gate's abiding by that representation. If that condition is accomplished, and made a part of this permit modification and grant thereof, then it is concluded, based on that condition precedent, that reasonable assurances have been provided that the cumulative impacts of the modification of the existing dredge and fill permit will not be contrary to the public interest.
Finally, it has been established that there is no longer any justification in terms of the water quality standards at issue, nor the public interest standards, to require Gate to monitor for copper at the discharge point, at the down stream boundary of the mixing zone, of each point of effluent discharge into the Fulton-Dames Point Cut from the two spoils sites involved as
more particularly described in the above findings of fact. Reasonable assurances have been established supportive of the deletion of that requirement in the presently existing dredge and fill permit. The preponderant weight of the evidence of record, revealed in the above findings of fact, establishes that there is no basis to believe that any significant levels of copper, as a pollutant, exist in the bottom substrates to be dredged, deposited as spoil, and to be transformed into any such significant constituent of the effluent from the spoils sites as to be violative of the water quality standards contained in Chapter 17-3, Florida Administrative Code.
In summary, reasonable assurances have been established that the project as proposed will not be violative of state water quality standards embodied in the above-cited rules nor of the public interest standards embodied in Section 403.918(2)1-7, Florida Statutes nor Section 403.919, Florida Statutes. If the conditions agreed upon between the Department and Gate, and those recommended to be imposed in this Recommended Order, including those which serve as a basis for the above factual findings, are accomplished and imposed as a prerequisite to a grant of the modification of the permit, then the lack of violations of the water quality and public interest standards are concluded to be reasonably assured.
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 the proposed modification to permit number 160462149 with the proviso that the conditions contained in the above findings of fact and conclusions of law be incorporated as specific conditions in the modified permit, including the additional condition agreed to at Final Hearing that the Manatee Protection Plan and Manatee Watch Program will be inaugurated and be incorporated as a specific condition in the modified permit.
DONE and ENTERED this 11th of October, 1989, at Tallahassee, Florida.
P. MICHAEL RUFF 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 12th day of October, 1989.
ENDNOTE
1/ The Petitioner submitted a sworn statement of Reyn Schuttler, a contracting officer with the military sealift command, as a late filed exhibit, on the issue of the depth required in this safe working area. Gate objected to the introduction of the sworn statement on the basis that it is irrelevant to the issues in this proceeding and is inadmissible hearsay. That objection is sustained and it is not considered because the sworn statement is hearsay and has not been shown to corroborate any otherwise admissible, competent testimony or evidence in the record of this case. Its admission would be a denial of Gate's right to cross- examine and impeach the witness involved in making the sworn statement in contravention of Rules 22I-6.025 and 22I-6.026, Florida Administrative Code. See also Section 120.58, Florida Statutes.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1939
Petitioner's Proposed Findings of Fact
Accepted but not as to its material import on relevant issues remaining in this case.
Accepted but not as to its material import on relevant issues remaining for resolution in this case. The question of the validity of the existing permit through the transfer and extension process has already been adjudicated by the Hearing Officer on the record in this proceeding by his denial of Petitioner's "Motion for Summary Judgment."
This is rejected as not constituting a proposed finding of fact, but rather legal argument.
This is rejected as not constituting a proposed finding of fact, but rather is legal argument.
Respondent Gate Petroleum Company's Proposed Findings of Fact
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as immaterial in this de novo proceeding.
Rejected as immaterial in this de novo proceeding and as constituting a conclusion of law and not a finding of fact.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
22.-37. Accepted.
38.-69. Accepted.
70.-84. Accepted.
85. Rejected as constituting a conclusion of law and not a finding of fact.
86.-96. Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
99.-106. Accepted.
107. Rejected as contrary to the preponderant weight of the evidence.
The Department of Environmental Regulation's Proposed Findings of Fact
The Department of Environmental Regulation filed no independent proposed findings of fact of its own, but rather adopted those submitted by Respondent Gate Petroleum.
COPIES FURNISHED:
Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32399-2400
Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32399-2400
Janice Whatley Executive Director
Coastal Environmental Society, Inc.
P.O. Box 26061 Jacksonville, FL 32218
G. Stephen Manning, Esquire Rogers, Towers, Baily, Jones & Gay, Attorneys at Law
1300 Gulf Life Drive, Suite 800
Jacksonville, FL 32207
William H. Congdon, Esquire Assistant General Counsel Department of Environmental Regulation
2600 Blairstone Road
Tallahassee, FL 32399-2400
| Issue Date | Proceedings |
|---|---|
| Oct. 11, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 11, 1989 | Recommended Order | Recommended approval of dredge & fill permit conditional to addition of Manatee protection programs being inaugurated in modified permit. |
